Union Switch & Signal Co. v. Philadelphia & R. R Co.

• Decision Date: 25 September 1895
• Docket Number: 66.
• Citation: 69 F. 833
• Parties: UNION SWITCH & SIGNAL CO. v. PHILADELPHIA & R.R. CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

69 F. 833

UNION SWITCH & SIGNAL CO. v. PHILADELPHIA & R.R. CO. et al.

No. 66.

United States Circuit Court, E.D. Pennsylvania.

September 25, 1895

George H. Christy and J. Snowden Bell, for complainants.

Witter & Kenyon and Thomas Hart, Jr., for respondents.

DALLAS Circuit Judge.

This suit is brought upon five patents. The bill, as originally filed, alleged:

'That the things patented in and by said recited patents constitute and are important elements of a railway electrical signaling apparatus, and are so nearly allied in character as to be capable of conjoint as well as separate use, and that they are and have been so used by the defendants.'

Notwithstanding this allegation, the bill was demurred to, upon the ground among others:

'That it nowhere in said bill of complaint appears, nor is it alleged, that the improvements recited in said patents are all conjointly used or infringed by these defendants, or are all conjointly used or infringed by the defendants in or upon one and the same machine, device, article, or apparatus, or are all capable of conjoint use in or upon one and the same machine, device, article or apparatus, but, on the contrary, it appears on the face of the said bill of complaint, and of the aforesaid patents, forming part thereof (profert of each and all of which having been made therein), that the said improvements described and claimed in said several letters patent are of such a diverse nature and character that they are incapable of conjoint use, and cannot be used conjointly, or conjointly in one and the same machine, device, article, or apparatus.'

Upon the first argument of this demurrer I understood the learned counsel of the complainants to concede that by 'conjoint use,' as alleged, was meant, not use in one mechanism, but upon different, though contiguous, parts of the same railroad; and, being of opinion that such uses were separate and distinct, I sustained the demurrer for that reason, and without myself considering what meaning ought to be ascribed to the language of the bill. The other causes assigned for demurrer were not dealt with. It then seemed to be unnecessary to consider them. See 68 F. 913. Subsequently the complainants moved to vacate the order made on demurrer as on rehearing, and for leave to amend their bill by adding the following to the clause which has been quoted:

'And your orators in this behalf further aver the fact to be that the conjoint use made by the defendants herein, as herein averred, includes a use of a material and substantial part of the subject-matter of each of the said recited patents in one and the same connected machine, mechanism, or apparatus.'

Upon the hearing of these motions this subject was again fully discussed. It was explained to the court that there had been no purpose to admit that the conjoint use alleged did not refer to use in one mechanism; and it is, I think, proper to say that it is quite possible that I had misapprehended the remarks of counsel on the previous argument. Under these circumstances, I treated the order which had been made as founded upon a misunderstanding, and considered the challenged allegation without reference to any supposed admission with respect to its intent. I found that 'conjoint use,' 'joint employment,' and similar terms, are constantly applied in the books to denote a use in the same machine or apparatus; and I perceived nothing which would justify the imputation that the pleader in this instance had ascribed to the words 'conjoint use' a possible, but different and irrelevant significance, and designed to 'palter with us in a double sense. ' Therefore the allegation as originally made appeared to be sufficient, and it seemed to be the plain duty of the court to vacate the order first made, and to overrule the demurrer, and this was accordingly done. The amendment was allowed. It could do no harm, and it put an end to any shadow of doubt as to the character of the joint use alleged. The two remaining causes of demurrer were not argued upon this second occasion, and were not referred to in the brief opinion which I thereafter filed; but the order overruling the demurrer generally of course disposed of them also. I was and am of opinion that the railroad company and the receivers are so related as to warrant their joinder as defendants; that the infringements alleged against the latter should be viewed as merely a continuance of those alleged to have been committed by the former; and that, inasmuch as the corporation is benefited by any unlawful use of the inventions by the direction of its receivers, a single bill against both ought to be sustained, for the avoidance of needless expense, and of the unnecessary repetition of what would be substantially the same litigation. A bill is multifarious where it unites 'the demand of several matters of a distinct and independent nature against several defendants'; and such a bill...