Estes v. Worthington
| Decision Date | 12 April 1887 |
| Citation | 30 F. 465 |
| Parties | ESTES v. WORTHINGTON and others. |
| Court | U.S. District Court — Southern District of New York |
G. G Frelinghuysen, for complainant.
George A. Black, for defendants.
The plea which has been set down for argument must be overruled because the plea of another suit pending is good only when the first suit is between all the same parties, and a full decree can be had therein respecting the matters of the second suit. Neither of these conditions exist in the present case. The bill alleges that the several defendants, including Richard Worthington, have been guilty of joint acts of infringement of the complainant's trade-mark, and it prays for an injunction and an accounting against all the defendants. The plea avers the pendency of another suit brought by the complainant against Richard Worthington for the same matters, and also avers that the defendants other than Richard Worthington were his agents and servants in doing the wrongful acts complained of. It is not necessary to the sufficiency of a plea of another suit pending that the former suit should be precisely between the same parties as the latter. Story, Eq. Pl. Sec. 738. No person should be made a party who has no interest in the suit, and against whom no decree can be had at the hearing; and for this reason a person who is a mere agent for another in the transactions in controversy ought not generally to be made a party defendant unless his presence is necessary for the purposes of discovery. See Earl of Egmont v. Smith, 6 Ch.Div. 469; Attwood v. Small, 6 Clark & F. 352; Weise v. Wardle, L.R. 19 Eq. 171. And it has been held in suits for infringements of patents that there is a class of agents, such as mere workmen in the employ of a manufacturer against whom there can be no recovers, although they may have participated somewhat in the acts of infringement. Delano v. Scott, Gilp. 498; United Nickel Co. v. Worthington, 13 F. 393. But ordinarily the infringer cannot escape responsibility by showing that he was acting for another. Maltby v. Bobo, 14 Blatchf. 53; Steiger v. Heidelberger, 4 Fed.Rep. 455.
In torts of misfeasance, like the violation of a trade-mark agents and servants are personally liable to the injured party. Bell v. Josselyn, 3 Gray, 309; Richardson v. Kimball, 28 Me. 463; Mitchell v. Harmony, 13 How. 115; Phelps v. Wait, 30 N.Y. 78. All persons procuring or assisting in the commission of a trespass are principals in the transaction, and both the master who commands and the servant who does the act of trespass may be made responsible as...
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