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ligence. Had there been, the case would weigh down the wire and help cause it to have doubtless been submitted to the jury, break. Its breaking, if due to the storm, and, if not, at least another question would could only have been occasioned by the velochave been involved on the hearing in this ity of the wind. The testimony showed that, court. The Anderson Case upon examination at about the time of the accident, the will be found not to be an authority for re- wind was blowing 70 miles per hour. Such 'spondent's contention.

storms, however, were shown not to be enThe case at bar is more nearly like that tirely infrequent; there being records in the of Brooks v. Consolidated Gas Co., 70 N. J. preceding 10 years of wind velocities of 76, Law, at page 215, 57 Atl. at page 398, in 74, 80, 83, 72, 78, and 96 miles an hour, and which this court held:

that it would take a wind velocity of 135 “There was evidence from which the contrib- miles an hour to break the particular wire utory negligence of deceased might perhaps be if it were in good condition. It cannot thereinferred, but none so conclusive as would jus- fore be said, as matter of law, that the storm tify an instruction for the defendant. It was shown that deceased had been warned by an in question, happening when it did, was one employé of the defendant company of the dan- of such severity and unlikelihood that it ger in coming in contact with the wires. There could not have been anticipated or guarded was also evidence that a person warned deceased on the morning of his death, and, upon against. learning that he was going to work on the bal There was certainly

certainly a question as to cony, that the wires were dangerous, and that whether or not negligence of the respondent deceased replied that he was not afraid of them. When first found, the left hand of de- | in the maintenance of this wire (including inceased was firmly clasped upon the wire.

If spection of insulation) did not, in combinait may be inferred therefrom that deceased de- tion with the storm, cause the injury resultliberately took hold of the wire, either to show ing in the death of the appellant's intestate. reason, his conduct was negligent, and, if such If the injury so resulted, it may be presumwas the only inference possible, a direction of ed that the damage was caused by a defeca verdict would have been proper. Anderson v. tive wire. New Brunswick Steamboat Co. Jersey City Electric Light Co., 64 N. J. Law: v. Tiers, 24 N. J. Law, 697, 64 Am. Dec. 394. 664 [46 Atl. 593). But that inference was not a necessary one. Considering the warnings he True, that was a suit against a common carhad received, his declaration that he was not rier who is an insurer against loss of afraid of the wires may be intended to indicate goods carried, and is not excused from liathat the work he was about to do would not put bility when the loss is occasioned by an act him in danger. And a reasonable inference from the circumstances may be drawn that of God, unless that act is the proximate when deceased leaned over the balustrade, en cause of the injury, nor where the negligence gaged in painting the gutter, his left hand may of the carrier or any other person concurs have been placed upon the corner of the house, and by an unexpected slip have been caught in with the act of God in producing the loss.

Whether, upon such an In the case at bar the respondent, not being inference, he was guilty of negligence in thus placing his left hand was a fair question for the an insurer, would not be liable for damage jury.”

occasioned exclusively by inevitable accident, [6-8] Now on the other question, that of but only from its own negligence. inevitable accident owing to the storm :

The rule as to damages for injury resultThere was testimony tending to show that ing from negligence concurrent with inevithe wire in question was improperly strung, table accident is thus stated in 29 Cyc. at passing through a tree and touching the page 504 : branches; that it had been insulated, and

“Nevertheless the rule imposing liability on that the insulation was worn and broken defendant, although another efficient cause con

curs with defendant's negligence, applies where from friction with the tree; that, at the an accident or act of God is the concurring point where the wire was thus worn and cause. And the same is true where the pribare, it broke on the night of the accident. mary cause was an accident for which defendTrue, the respondent denied these facts and resulted but for his negligence, or where, by

ant was not liable if the injury would not have introduced evidence to show that the wire the exercise of ordinary care, the result might was properly inspected, and that it did not have been essentially mitigated." break in the tree top at the point claimed by Upon this whole matter we are of opinion the appellant's witnesses, but broke at an that the respondent's liability or nonliability entirely different place, namely, at a corner for the accident resulting in the death of appole some distance away. This raised a pellant's intestate was a question of fact question of fact for the jury to decide.

which should have been submitted to the The accident happened in the month of jury, and therefore the judgment should be June, when there was no ice or snow to reversed, and a venire de novo awarded.

(83 N. J. Eq. 309)

Robert H. McCarter and Conover English, MUNN & CO. V. AMERICANA CO. et al. both of Newark, for appellants. J. Franklin (No. 67.)

Fort and Franklin W. Fort, both of Newark (Court of Errors and Appeals of New Jersey. (Arthur H. Masten and Sinclair Hamilton, June 15, 1914. Dissenting Opinion both of New York City, on the brief), for reJune 29, 1914.)

spondent. (Syllabus by the Court.) 1. TRADE-MARKS AND TRADE-NAMES (878*)

SWAYZE, J. [1] The basis of suits of this INJUNCTION-GROUNDS.

character is the damage or possibility of The basis of suits to enjoin the use of the damage to the complainant, not the damage complainant's name is the damage or possibility of damage to the complainant, not the or probability of damage to the public. The damage or probability of damage to the public; question sometimes discussed is whether refraudulent conduct on the part of the defend- lief may be rested on a personal basis alone, ant is a necessary element, but fraudulent con- or whether damage to property rights is necnot suffice.

essary-a question left undecided in this court [Ed. Note. For other cases, see Trade-Marks in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, and Trade-Names, Cent. Dig. § 88; Dec. Dig. $ 926, 67 Atl. 97, 14 L. R. A. (N. S.) 304. In 78.*]

an early English case the court refused an 2. EQUITY (§ 65*)-MAXIMS.

injunction to restrain the sale of a quack Since it is the complainant who is to be medicine under the name of the complainant, protected in suits to enjoin the use of his name, he must come into court with clean hands.

an eminent physician. Clark v. Freeman, 11 [Ed. Note.-For other cases, see Equity, Beav. 112. And although the case is not of Cent. Dig. $$ 185–187; Dec. Dig. § 65.*] great authority, the criticism upon it was not 3. TRADE-MARKS AND TRADE-NAMES (87*), due to the fact that the court refused at the INJUNCTION.

suit of an individual to restrain a fraud upon Where the complainant and defendant the public, but to the fact that it overlooked agreed that an encyclopedia should be repre- the property right of a man in his own name. sented to the public as the work of the complainant in order to avail themselves of its Maxwell v. Hogg, L. R. 2 Ch. 307. The Court reputation to attract subscribers for the book, of Chancery has held that there is such a the complainant cannot be heard to complain right. Edison v. Edison Polyform & Mfg. Co., of conduct in which it joined and by which it 73 N. J. Eq. 136, 67 Atl. 392. Although damprofited.

[Ed. Note.-For other cases, see Trade-Marks age is the basis of the suit, the mere fact of and Trade-Names, Cent. Dig. § 96; Dec. Dig. damage or possibility of damage is not § 87.*]

enough, since damage may result from law4. TRADE-MARKS AND TRADE-NAMES (8 87*)- |ful acts, such as legitimate competition. INJUNCTION-DEFENSE-PLEADING.

Fraudulent conduct on the part of the deWhere complainant and defendant agreed fendant is a necessary element. Internationthat an encyclopedia should be represented to the public as the work of the complainant in al Silver Co. v. Rogers, 71 N. J. Eq. 560, 563, order to avail themselves of its reputation to 63 Atl. 977. But fraudulent conduct without attract subscribers for the book, and subse- damage to the complainant does not suffice. quently the complainant terminated the agreement and sought to enjoin the use of its The case upon which the complainant relied name, the court denied relief because the com- was expressly put upon the ground of the plainant did not come into court with clean liability of the complainant to loss. Walter hands, although the point was not raised by the defendant in their answer.

V. Ashton (1902) 2 Ch. 282. [Ed. Note. For other cases, see Trade-Marks

[2] The very discussion suffices to show and Trade-Names, Cent. Dig. & 96; Dec. Dig. that, although fraudulent conduct which may § 87.*]

deceive the public is a necessary element, it 5. EQUITY ($ 65*)—RIGHT TO EQUITABLE RE- is the private loss of the complainant that LIEF.

is to be prevented, not the public injury arissuch that he does not come into court with ing to others from the fraudulent use of the clean hands, the disqualification applies only complainant's name. This is in consonance to the particular matter or transaction with with general principles. It is unnecessary which the wrongful conduct has to do, and he to dwell upon the point. Its importance in may have relief in other respects. [Ed. Note. For other cases, see Equity, the standing of the complainant to maintain

the present case is due to its bearing upon Cent. Dig. $$ 185-187; Dec. Dig. $ 65.*]

its bill. If it were the public that is to be White, J., dissenting.

protected, the conduct of the complainant Appeal from Court of Chancery.

ought not to prevent relief. Since it is the Bill by Munn & Company, a corporation, complainant that is to be protected, the against the Americana Company and others, well-established maxim of equity is applicato restrain defendants from using the words ble; the complainant must come into court “Scientific American" in connection with the with clean hands. sale of defendants publication. Injunction [3] The facts found by the learned Vice granted in part (88 Atl. 330), and defendants Chancellor establish an agreement on the appeal. Modified and affirmed.

part of the complainant and the Americana See, also, 89 Atl. 529.

Company to make money out of the public

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

by representing the encyclopedia as the work | 627, 34 Atl. 1070, 55 Am. St. Rep. 614, and of the Scientific American, and thereby avail- Wyckoff v. Weaver, 66 N. J. Law, 618, 52 ing themselves of the reputation of that Atl. 356, is in effect the same. journal to attract subscribers for the book. [4] The failure of the defendants to quesThe adoption of the name Scientific Ameri- tion in their answer the standing of the comcan Compiling Department cannot be other plainants is not material. This very point wise explained. The word “Department” in was made and overruled by this court in that expression can hardly convey to the Minzesheimer v. Doolittle, 60 N. J. Eq. 391, ordinary mind any other meaning than De-397, 45 Atl. 611. As we there said, the court partment of the Scientific American; and will not for any delinquency of the defendthe language of the letter addressed by Munn ant, lend its assistance to a violation of law; & Co., to the American People under date of and so it will not assist one who has joined May, 1906, is carefully chosen to convey the in an effort to deceive the public to prevent same impression without saying so in ex- his associate from continuing to do the very press words. The encyclopedia is therein thing to which he has previously assented. said to be issued under the direct editorship [5] We think therefore that the decree and personal supervision of the editor of must be reversed; but it does not follow that the Scientific American, although his actual the complainant is not entitled to some of connection with the work was slight; he is the relief granted. The disqualification apsaid to be assisted by a board of eminent plies only to the particular matter or transDepartment Editors; the natural impression action with which the wrongful conduct had conveyed is that they were editors of de- to do. Woodward v. Woodward, 41 N. J. Eq. partments of the Scientific American, since 224, 4 Atl. 424. In this case the complainnothing else is mentioned that could have ant's wrongful conduct had to do with the departments; in fact, so far as appears, no exploiting of the encyclopedia under the editor of the Scientific American except Mr. name of Scientific American Compiling DeBeach was connected with the encyclopedia.partment. The complainant is not shown The book is said to be a great work “pub- to have assented to the use of the name lished by the Scientific American Compil- Scientific American for any other purpose. ing Department,” with the full co-operation So far as the decree enjoins the Scientific of Munn & Co., who add that they are cer- American Compiling Department from using tain that it will be found standard in its in- its corporate name, it must be reversed; so formation and fully equal to the reputation far as it enjoins the use of the name Scienof the Scientific American for accuracy and tific American in other ways, it must be afreliability. The gravamen of the complain-firmed. The defendants are entitled to costs ant's bill is that Munn & Co. will be injured in this court. in their good business reputation by the fraud of the defendants in palming off the WHITE, J. (dissenting). I concur in the book upon the public as a work connected legal principles enunciated in the foregoing with the Scientific American. Yet that is opinion, but dissent from a finding of fact by the very scheme in which the parties joined this court the existence of which, besides for years prior to 1911. We think the com- seeming to me quite doubtful, was not raised plainant cannot now be heard to complain of by the pleadings, nor tried as an issue, nor conduct in which they formerly joined and considered nor found as a fact by the Vice by which they profited. It makes no differ-Chancellor who tried the cause. Under such ence whether the encyclopedia is valuable circumstances, it may well be that the record or not, nor whether purchasers thereof have discloses scant proof in denial of what no one been damaged; it is enough that they have has seen fit to assert. This court's finding of been or may have been beguiled of their fact is that the publication of the Encyclomoney because the complainant's representa- pedia Americana under the published name tions and the representations of the defend- of “Scientific American Compiling Departant, to which the complainant assented, per- ment," and other representations to the effect suaded them that they were buying a work that the work was edited and issued under which was made better by the co-operation the direct editorship and supervision of the of the Scientific American.. We think that editor and editorial organization of the the complainant, when it tires of its bargain Scientific American, was a fraud upon the and seeks to enjoin the defendant from fur- public. This finding obviously depends upon ther profiting by the supposed connection, whether or not these representations were in does not come into court with clean hands. fact false or true, and that question was not Fraudulent conduct which the law would put at issue, tried, nor decided in the court enjoin but for the agreement of the parties from the decree of which this appeal is takto exploit the public is as inimical to public en. It is true the Vice Chancellor found policy as gambling in cotton, which is con- that, as between the business organizations demned by statute, and the rule applied in of the complainants and of the defendants Minzesheimer v. Doolittle, 60 N. J. Eq. 394, below, the fornier had contributed toward the 45 Atl. 611, is applicable to the present case. co-operative enterprise (1) the reduction of The principle applied in the law courts in the regular yearly subscription price of the Hope v. Linden Park Ass'n, 58 N. J. Law, Scientific American magazine, and (2) the

exclusive right during the period of the con- ly what complainants undertook they should tract to the use of the name "Scientific Amer-get, and I cannot see where there was any ican Compiling Department,” and had re- fraud upon the public either practiced or atceived in return an assurance of at least 10,- tempted. Certainly, as I view it, the fraud 000 new subscriptions per year to the Scien- is not so apparent that, in a case where it tific American magazine and the payment of was not in issue and no one thought of either the special price therefor; but these findings proving or disproving it, a court of appeal were in connection with the discussion of the should lay hold of it on its own motion, not question of an accounting and of the nature only to deprive complainants of what I think of the privilege for the use of the name. would otherwise be their clear right to proThey did not pretend to relate to the ques- tect their property right in their business tion of a fraud upon the public, and that name, but also to perpetuate, in the contin question was not considered. The evidence ued use of the name Scientific American in showed that in fact the editor in chief of the connection with future editions of the enScientific American, Mr. Beach, was made cyclopedia, what, now that the Scientific editor in chief of the new work, the encyclo-American editorship and co-operation has pedia, and that he helped select the authors been withdrawn, will hereafter certainly be, of the treatises going into the work, and that as I think it was not before, a fraud upon the reference bureau and the plates of the the public. Scientific American were largely, or at least

(83 N. J. Eq. 318) to an extent, used in getting up and printing

CLEMENT et al. v. CREVELING et al. the encyclopedia.

(No. 44.) From this it would seem, and doubtless if the question of a fraud upon the public had (Court of Errors and Appeals of New Jersey. been raised or considered it would have other

June 15, 1914.) wise appeared, that the complainants took

(Syllabus by the Court.) ample means to see that the encyclopedia 1. WILLS ($ 733*)-CONSTRUCTION-DISTRIBUwas of the high character which the represen TION OF ESTATE. tations that it was edited by the editor in income from 600 shares of the capital stock of

Testator's will gave to his wife for life the chief of and issued in connection with the a railroad company. It directed that out of Scientific American gave the public the right such income she should pay to her niece, Emma to expect (in this connection it is significant Chambers, during the life of the niece, $600 per that no subscriber has appeared to allege that the decease of my wife before that of Emma

annum. It further provided that, "in case of the work was in fact otherwise than of this Chambers, I direct and require my executors high character), and, if this was true, I think to retain sixty shares of the said stock and there was no fraud upon the public. The to pay the interest thereon to the said Emma

Chambers during her natural life.” The sixth representations amounted to nothing except paragraph provided that, "after the decease of in so far as they were a guaranty of the care my said wife and niece, I give my estate to my on the part of the Scientific American people lawful heirs, to be divided equally among them, that the work would accord in high character dren of any of them who may bave died to take

share and share alike, the lawful child or chilwith what their reputation gave the public the share of their deceased parent." The testhe right to expect from them. Purchasers tator was survived by his three brothers and of the work were not interested in the type-l his heirs at law at the time of his death. Held:

his sister, and these, now all deceased, were setters nor in the bookbinders or other me- (1) That upon the death of the wife, though chanics whose labor went into the production the niece is still living, the testator's residuary of the encyclopedia, except in so far as the estate, excepting the 60 shares of stock held

for the benefit of the niece, is distributable in result of their labor was concerned; nor accordance with the sixth paragraph of the were they otherwise interested in the individ- will. uality of the authors who wrote the articles [Ed. Note. For other cases, see Wills, Cent. comprising the work, nor in how the profits Dig. $$ 1819–1846; Dec. Dig. g 733.*] from its sale were divided up. Every one 2. WILLS ($ 630*)—CONSTRUCTION-DISTRIBUwould, of course, know that the encyclopedia

TION OF ESTATE.

Held: (2) That by the sixth paragraph of is not written by the editor in chief, nor by the will the testator's residuary estate vested the assistant editors of the Scientific Ameri- in his brothers and his sister at the time of the can, but that necessarily a large number of testator's death, subject to the life interest authorities would be employed to write about therein of his wife, and the interest of her

niece; and upon the death of the wife such subjects upon which they were specialists. part of such estate as is not required to be The artistic success of the encyclopedia retained for the benefit of the niece is diswould, of course, therefore depend, more than tributable in equal parts to the respective perupon anything else, upon the judicious se- and sister.

sonal representatives of the testator's brothers lection of these specialist authors. That [Ed. Note.--For other cases, see Wills, Cent. selection is what stamped the character of Dig. $8 1464–1480, 1486, 1487; Dec. Dig. §

630.*] the work, and that selection was one of the important things to which the editor in chief Appeal from Court of Chancery. of the Scientific American gave his attention. Bill by Cornelia E. Clement and others

Apparently therefore the public got exact against Anna M. E. Creveling and others.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

From a decree of the court of chancery dis-, without issue; the testator's niece, Emma missing the bill (88 Atl. 189), complainants Chambers; and the trustee under the will. and the defendant named appeal. Reversed. All parties consent in the pleadings that

immediate distribution be made of the entire Aaron V. Dawes, of Heightstown, for ap- residuary estate, excepting only the 60 shares pellants Clement and others. Collins & Cor- of the railroad stock, necessary to be reserved bin, of Jersey City, for appellant Anna M. E. for the benefit of Emma Chambers. The deCreveling. Alfred Reed, of Trenton, for re- fendants, whilst consenting to such immedispondents Josephine Ellison, George H. Elli- ate distribution, make varying claims as to son, Mary Camp, and Fred Camp. Peter

the manner of distribution. Backes, of Trenton, for respondents Mary An

The Chancellor properly considered himna Whittaker, personally and as executor, self bound by an earlier adjudication of Chanetc., and Gardner Cain, executor, etc. Bay- cellor Runyon in which the construction of ard Stockton, off Trenton, for respondent the same will was involved (Whittaker v. Mercer Flospital.

Whittaker, 40 N. J. Eq. 33), and following

Chancellor Runyon's adjudication held that TRENCHARD, J. Albert J. Whittaker the estate was not distributable until after died March 28, 1884, leaving a last will and the death both of the testator's wife and of testament by which he gave to his wife for Emma Chambers; and that, this being so, it her natural life, without power to sell or would be premature to determine who would transfer the same, 600 shares of the capital be entitled to share in the distribution. (Ch.) stock of the United New Jersey Railroad & 88 Atl. 139. Canal Company, with power to collect and The complainants and the defendant Anna receive the dividends therefrom for her own M. E. Creveling appeal. use and benefit. He directed that the stock

[1, 2] We are of the opinion that the conshould not be sold or transferred by his ex- struction put upon this will by Chancellor ecutors, or by anybody else, during the life of Runyon was erroneous. We think it was not his wife. He further provided that, out of the testator's intent that the distribution of the dividends collected on this stock, his wife the whole of his residuary estate should be should pay to her niece, Emma Chambers, for postponed until the death both of his wife and during the natural life of the niece, $600 and her niece. Standing alone that would be per annum. He then provided as follows: the natural effect of the sixth paragraph of

“In case of the decease of my wife before that the will. But to so construe it is to disreof Emma Chambers, I direct and require my ex: gard the provision made for Emma Chambers ecutors to retain sixty shares of the said stock and to pay the interest thereon to said Emma after the death of the testator's wife. She Chambers during her natural life.”

died in 1908. Upon her death, the will, as After giving certain specific legacies to per- a present duty upon the executors, namely,

will appear from the above citation, imposed sons named in the will, and authorizing his to retain sixty shares of the said stock.” executors to sell and convey his real estate. The retention of the 60 shares involves a dishe provided that:

position of the other 540 shares, and those “Sixth. After the decease of my said wife and shares are to be disposed of in accordance niece, I give my estate to my lawful heirs, to be divided equally among them, share and share with the direction of the testator contained alike, the lawful child or children of any of in the sixth paragraph of his will. them who may have died to take the share of That brings us to the question of the mantheir deceased parent.'

ner of distribution. The primary question is The present bill is filed for the purpose of as to when, under the sixth paragraph of the obtaining a decree directing the immediate will, the testator's residuary estate vested. distribution of testator's residuary estate, The solution of this question will determine with the exception of 60 shares of this rail- to whom, and in what portion, the estate is road stock, and to have it declared who is en- to go, whether to the personal representatitled to share in this distribution.

tives of those who were the heirs of the tesIt appears that the testator was survived tator at the time of his death, or to such perby his three brothers and his sister. These sons as answer the description of the testawere his heirs at law at the time of his death. tor's lawful heirs at this time. They are all now dead; the last dying in In our opinion, by the sixth paragraph of 1912. The testator's widow died in 1908. the will the testator's estate vested in his The niece, Emma Chambers, is still living. brothers and sister at the time of the tes

The complainants are the children of George tator's death, subject to the life interest thereR. Whittaker, one of the testator's brothers. in of his wife, and the interest of her niece; The defendant, Anna M. E. Creveling, is the and upon the death of the wife such part of daughter of Ann W. Ellison, the testator's such estate as is not required to be retained sister. The other defendants are children of for the benefit of the niece is distributable in a deceased daughter of George R. Whitta- equal parts to the respective personal repker; children of deceased sons of Ann W. El resentatives of the testator's brothers and lison; the personal representatives and lega- sister. tees of the testator's other brothers who died This case is much like that of Howell, Ex'r,

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