West Pub. Co. v. Edward Thompson Co.

• Decision Date: 01 June 1909
• Citation: 169 F. 833
• Parties: WEST PUBLISHING CO. v. EDWARD THOMPSON CO.
• Court: U.S. District Court — Eastern District of New York

169 F. 833

WEST PUBLISHING CO. v. EDWARD THOMPSON CO.

United States Circuit Court, E.D. New York.

June 1, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

William B. Hale (Edmund Wetmore, and Henry E. Randall, of counsel), for complainant.

Walter Large (Frank P. Prichard, John L. Hill, and William M. McKinney, of counsel), for defendant.

CHATFIELD District Judge.

The complainant is a corporation organized under the laws of the state of Minnesota, which conducts, at St. Paul, in that state, a business of large extent, embracing all steps in the preparation, editing, publishing, printing, and distributing of law publications, in the nature of reports, digests, text-books, and kindred works of that character. The present corporation was organized upon the 1st day of November, 1882, and succeeded to the rights of a partnership known as the West Publishing Company, which had been formed in 1879, to conduct the business of John B. West & Co., founded in 1874, in St. Paul, Minn.

The present officers have been in control of affairs for some years. One of them, Mr. Charles W. Ames, joined the company in 1883, became general manager in the year 1899, and vice president in 1903. His connection and duties with the complainant bear directly upon some of the questions in this action. The treasurer, Mr. H. P. Clark, has been with the company since 1892, and the editor in chief, Mr. Henry E. Randall, since 1887.

Not only the officers but the men in charge of the work at St. Paul have acquired large experience and gained great proficiency in carrying on the various branches of the work conducted by the corporation. The staff of editors or writers, all connected with the legal profession, are shown by the testimony in the case to have acquired, by practice and training, an experience and ability which is peculiarly useful in the work which they have to do. This, of course, inures to their advantage, by giving them proficiency in what is a limited and special field of legal work. But, further, the results of the labor of such a force, when employed by a company of such capacity and enterprise, have produced an invaluable list of publications, consistently comprehensive and complete in execution, as well as continuous and progressive in scope.

It will be necessary later to take up these various publications in detail, both as to subject-matter and chronology. But it may be said generally that the publications of the West Publishing Company, so far as an examination of them is necessary in this case, comprise the opinions of the courts of this country in litigated cases, with complete digests covering these reports. These reports and digests consist of whole editions and successive books, for the entire period up to the time of publication, with separate portions, issued monthly or yearly, as the case may be, bringing each of the branches of the field down to date, and containing the decisions from year to year throughout the courts of the entire country.

The defendant corporation was organized in 1887, by one Edward Thompson, who was its first president, and who continued controlling a large portion of its stock until, in the year 1897, Mr. James Cockcroft, Mr. William M. McKinney, Mr. David S. Garland, Mr. John W. Hiltman, and Mr. Charles W. Dumont acquired a large holding in the corporation, since which time Mr. Cockcroft has been president, and Mr. McKinney and Mr. Garland have held office and acted as editors with respect to different publications, Mr. Hiltman has been manager, and all four have been actively engaged at all times in the conduct of the business. Mr. Dumont's interest was purchased by the other four in the year 1900.

The Edward Thompson Company was organized to accomplish a peculiar purpose, and to produce a product which it was believed, and as events have proved, was rightfully calculated to have a wide sale, and be of great assistance to the legal profession and to the courts.

As is known to practically every one in the law, the digests contain, according to certain classifications, statements of the holdings of all cases decided within the period of the digests' resume and within their scope. If a certain field is covered by an annual digest, the lawyer in his search for authorities must follow down and examine all of the kindred titles and subjects, in all of the digests, for every year, unless these annual digests have been combined in some form of general digest covering an entire period. But, even if that digest is at hand, in many instances search must be made for decisions of different jurisdictions, and from different courts, necessitating not only an examination of every digest in a certain class, but of every digest in the various different jurisdictions.

The plan of uniting as many annual and limited digests as possible under one comprehensive publication, or in a series of volumes under one alphabet, has been and has continued to be carried on by the complainant corporation, as a part of its particular work; but no digest can set forth deductions or conclusions from, nor draw comparisons between, the ideas suggested by the cases examined. Nor can any set of books made up of extracts, giving the substantial and important points of every case, be confined within the limits of a workable series of books, and be serviceable for the quick ascertainment of principles, and the peculiar advantage of the product of skilled thought, such as, in any particular branch of the law, had previously been supplied by text-books and works of that character.

But no series of text-books, on the contrary, had covered the entire field of law, as text-books rapidly pass out of date and other text-books take their place. Even as to particular subjects, and in recent works, a lawyer running down a point would not find in the text-book any satisfactory or complete list of all the cases in the particular jurisdiction under examination, nor of the variations and different holdings, from time to time, in that jurisdiction, unless they happened to be illustrative of general principles important enough to be included in the limited field of the text-book writer's statements and conclusions. The legal profession was therefore ready, and the immense increase in litigation, through the expansion of business, had created a demand, for a book giving to every one the complete field of the law upon all subjects in jurisprudence, together with the course of decision in each division of the field; and to have this comprehensive work presented in the form of citations or lists of all cases, as well as a statement of conclusions and comparative deductions, from which principles of law of a reliable and trustworthy character could be quickly referred to. This particular need was met, to a considerable extent, by what has come to be known as the 'Encyclopedia,' of which there are now several (not all completely comprehensive in scope), and the particular editions and names of which must be taken up further on in this opinion.

The testimony shows that the originator and first worker upon the form of book which will hereafter be called the 'Encyclopedia' was Mr. James Cockcroft, who began the preparation of this series of books about the year 1886. He wrote or supervised the first volume of the series for the publication of which the Edward Thompson Company was organized. The ability to digest cases, and to state concisely the important holdings of these cases, must have added to it an ability to properly compare, contrast, and apply the results of such digesting, followed by the constructive, and more or less literary, task of weaving the result of these conclusions into an article, as short as possible, and as clear and exact as the statements of a text-book, upon the point under discussion. The preparation of the great number of articles in such a book required, and requires, the work of a large force, including the responsible writers, who actually perform the functions above recited.

The defendant corporation has maintained at Northport, Long Island, in this district, a plant and publication house, in which its books have been prepared and published, and in connection with which the greater part of the compilation of material, and the work of its editorial or writing force, has been done. Experience and ability, coupled with practice in such editorial work, not only produces better results from the standpoint of quality, but, of course, enables more rapid work, thus bringing the books more closely up to the time of publication, decreasing expense, and increasing the compensation of the experienced worker.

The Edward Thompson Company has employed many men who have gained their experience in its own service, and also many men who have worked for the complainant. It is particularly to be noted that many writers on the defendant's publications had at some time been employed by the complainant, while nearly every writer whose testimony is relied upon by the complainant, as well as witnesses now connected with other publishing concerns evincing interest in this litigation, and even some of the counsel in the case, had worked for the defendant company. In many instances feeling has been engendered, or the present activities and sympathies of the witnesses are enlisted on behalf of the complainant, or a corporation controlled by those who have taken some apparent interest in the complainant's side of the suit.

In view of this fact, most of the statements of these witnesses with relation to the work which they did for the defendant company have been brought out by the complainant in the form of testimony attacking the...