author: BRYAN, Circuit Judge.

text:
    APPLE v. OWENS et al.
    No. 5785.
    Circuit Court of Appeals, Fifth Circuit.
    April 15, 1931.

      H. E. Jackson, of San Angelo, Tex., and Earl Q. Gray, of Ardmore, Old. (Collins, Jackson & Snodgrass, of San Angelo, Tex., and Potterf, Gray & Poindexter, of Ardmore, Okl., on the brief), for appellant.
    C. O. Harris, L. B. Harris, and M. E. Sedberry, all of San Angelo, Tex., and R. R. Holloway, of Brownwood, Tex. (Wood-ruff & Holloway, of Brownwood, Tex., on the brief), for appellees.
    Before BRYAN and POSTER, Circuit Judges, and HUTCHESON, District Judge.
   BRYAN, Circuit Judge.

Appellant brought this suit in December, 1928, in the District Court for the Northern District of Texas, to subject the estate of John S. Owens to the payment of half the amount of a judgment, rendered in January, 1924, in a state court of Oklahoma, against himself and Owens. That judgment was entered in a suit on a note of the Chickasaw Refining Company, indorsed by appellant, Owens, and one Dunlap. Pending suit, the refining company became bankrupt, and no judgment was taken against it. Dunlap- was insolvent. In February, 1924, appellant paid the amount of the judgment and took an assignment of it from the judgment creditor. Appellees are heirs at law of Owens, who moved from Oklahoma to Texas in 1921 and died in Texas in 1928. Upon their plea of the statute of limitations, the relief sought by appellant in this suit was denied.

It is not doubted that Apple originally had a cause of action for contribution against Owens. 6 R. C. L. 1036. But that cause of action became unenforceable' in the face of a plea of the statute of limitations before this suit was'brought. Revised Civil Statutes of Texas, arts. 5526, 5527, 5529. The statute of limitations of Texas, where the suit was brought, is recognized in the courts of the United States in the absence of legislation by Congress. Amy v. Dubuque, 98 U. S. 470, 25 L. Ed. 228; Bauserman v. Blunt, 147 U. S. 647,13 S. Ct. 466, 37 L. Ed. 316. But if this suit may be based upon the judgment it was not barred because, having been brought within five years, it was still alive both in Oklahoma and Texas. Oklahoma Compiled Laws, § 695; Revised Civil Statutes of Texas,.art. 5530. Therefore Apple relies upon the proposition that he is entitled to recover upon the judgment which he paid and which was assigned to. him by the judgment creditor. Apple and Owens were both sureties on the note upon which the judgment was based; they were therefore equally bound to pay the judgment.

This is not the case of a surety against his principal. By the great weight of authority, where one of several defendants against whom- there is a joint judgment pays to the judgment creditor the entire sum due the judgment is extinguished. Freeman on Judgments, (5th Ed.) § 1133, and the eases cited. See, also, note to the ease of Nelson v. Webster, 68 L. R. A. 514. The authorities cited by appellant- are mostly those involving the right of a surety against his principal, or where there are liens or other securities held by a creditor to secure the payment of a debt to which the surety may he subrogated.

We conclude that appellant’s right of action for contribution was barred by the statute of limitations, and that he had no cause of action by virtue of the Oklahoma judgment.

The judgment of the District Court is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN RY. EXPRESS CO. v. GILBREATH.
    No. 5650.
    Circuit Court of Appeals, Sixth Circuit.
    April 13, 1931.
    I. G. Phillips, of Chattanooga, Tenn. (Allison, Lynch & Phillips, of Chattanooga, Tenn., on the brief), for appellant.
    J. B. Roberts, of Chattanooga, Tenn. (Rankin, Erazier & Roberts, of Chattanooga, Tenn., on the brief), for appellee.
    Before DENISON, MOORMAN, and HICKS, Circuit Judges.
   PER CURIAM.

Appellant’s main office in Chattanooga, Tenn., is at the comer of Chestnut and Carter streets. Six buildings down the street, and separated from its main office by a cross street, there is a building which it rents and uses for storing surplus records. Appellee, a white man 62 years of age, seeking employment as a laborer, entered the storage building and fell into an unguarded elevator shaft, for which he sued and recovered damages. The question in the case is whether appellee, at the time of his injury, was an invitee upon the premises; it being con'ceded that if he was he was entitled to recover.

A few days before the injury, appellant had placed an advertisement in a Chattanooga paper, under the head of “Female Help Wanted,” for two experienced comptometer operators, application to be made at the company’s main office. Appellee neither saw this advertisement nor was qualified to do that character of work, but being out of employment, on the morning of the day of the accident went by the shop of a company for which he had formerly worked, and was there informed of the possibility of obtaining a job at the express company. About 4 o’clock in the afternoon he went to the building where the injury occurred. The doors of the building were open. He saw some men working in the back end and a white man in his shirt sleeves at the front end seemingly looking over records, taking inventory or doing similar work. Appellee asked the man about work, and was told that the man in charge of the work was in the back of the building, “go back and see him.” On his way back he fell into the shaft and was injured.

The identity of the man in the front of the building was not shown, but from the character of work he was doing we assume that he was an employee of appellant. What he said to appellee might well be construed as nothing more than the giving of information as to the place where the man in charge of the work could be foun'd. Even if it were an invitation, it was not binding upon appellant unless there was express or apparent authority to extend it. No attempt was made to show express authority. The cases in which recovery has been allowed in the absence of a showing of such authority have usually turned on the fact that the one seeking employment was directed to a place where applications for employment were customarily received. St. Louis, Iron Mountain & Southern Railway Co. v. Wirbel, 104 Ark. 236, 149 S. W. 92, Ann. Cas. 1914C, 277; Id., 108 Ark. 437, 158 S. W. 118; and Id., 112 Ark. 410, 166 S. W. 573; Zeigler v. Oil Country Specialties Mfg. Co., 108 Kan. 589, 196 P. 603; Steiskal v. Marshall Field & Co., 238 Ill. 92, 87 N. E. 117. That circumstance was not proved in this ease. Appellant did not customarily employ men at the place where the accident happened. The building was ordinarily, locked and had a “No Admittance” sign on the door, which, however, could not be seen when the door was open. Appellee had no information that the appellant was employing any one in the building and no reason to assume that it did or would employ any one there. The unknown giver of the direction had no authority ovér or connection with the work. It was not his duty to invite persons seeking employment to go into the building, and we find no evidence of apparent duty or authority so to do.

The judgment is reversed, and the cause remanded for a new trial.


text:
    MORRIS COAL CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5620.
    Circuit Court of Appeals, Sixth Circuit.
    April 7, 1931.
    E. J. Brunenkant, of Cleveland, Ohio, for petitioner.
    Helen R. Carloss, of Washington, D. C. (G. A. Youngquist, Asst. Atty. Gen., and Sewall Key, Harvey R. Gamble, C. M. Char-est, and Dean P. Kimball, all of Washington, D. C., on the brief), for respondent.
    Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
   PER CURIAM.

This petition to review the order of the Board of Tax Appeals, fixing the petitioner’s income and profits taxes for the years 1919 and 1920, presents three questions:

1. In former years'petitioner charged to operating expenses items that should have been charged as capital investment. It sought to have these items restored to its invested capital. The commissioner refused, and on appeal the board affirmed. It appears beyond question that there should have been some such restoration; but the proof is too vague and uncertain to fix the amount. It was within the power of the petitioner to present fairly definite proof, specifying the items and the< extent to which each item remained as a capital asset. This was not done; the proof was only that some of the items had some remaining value. A part of the items for which restoration is claimed appears to have been thus erroneously charged to expense by the Cleveland Company, the entire property of which the petitioner later purchased. The petitioner is allowed, in its invested capital, the amount which it paid for the Cleveland property, and would not be entitled to a restoration to correct the earlier erroneous bookkeeping 'of the Cleveland Company. The only item proved with approximate certainty is that about $7,000, paid for “surface lands,” was later charged off to profit and loss. It is perhaps properly inferable from the testimony that in 1920 these lands remained undisposed of, but no proof is given as to how much they had been affeeted by mining operations, or depreciated in any.other way. Surface lands purchased for collateral mining purposes might or might not have had their value exhausted by mining operations or developments. Here, too, petitioner has made no definite proofs, but has left the matter to surmise — -which is an insufficient basis.

2. Petitioner bought the Cleveland mines. and at the same time bought some capital stock in another mine. The total purchase price was $385,000. It made entries on its books apportioning $60,000 of this price to the capital stock purchase and $225,000' to the Cleveland mine purchase. The capital stock, as an asset, was later wiped out by other book entries, but without any change in the asset valuation of the Cleveland property. Petitioner now seeks to have this figure raised to $385,000, in the computation of its invested capital. Its claim, so far as understood; is that $385,000 was the real price of the mine, and the stock value was really nominal. The proofs fail to establish that conclusion. They leave the matter in confusion and more or less unintelligible. The burden was upon petitioner to - show clearly that the - larger sum was the true purchase price of the mine, and it has not successfully carried this burden. The commissioner and the board were right in refusing to approve this claim of addition to invested capital.

3. Petitioner alternatively claims the right to have its invested capital fixed under sections 327 and 328, Revenue Act of 1918 (40 Stat. 1093), because of abnormal conditions. It finds these conditions in the small salaries which it paid its officers and in its abnormally small' invested capital, as shown on its books and as brought about by its overeonservative bookkeeping, by which it had improperly reduced its capital account. The Board of Tax Appeals, under certain circumstances, has held that these things justify resort to sections 327, 328 (e. g., In re Northwestern Yeast Co., 5 B. T. A. 232). The board in this ease finds that the necessary abnormal-conditions did not exist, and affirms the commissioner in refusing to make the special assessment.

Passing the question of our jurisdiction to review the board upon this subject [Enameled Co. v. Com’r (C. C. A. 3) 42 F.(2d) 213 —certiorari granted, 51 S. Ct. 89, 75 L. Ed. -], and assuming that the proofs might sometimes make a sufficiently clear ease of abnormality to justify reversing the conclusions of the commissioner and the board, we think that in this case they do not. A liberal view of the extent to which invested capital and operating income might be changed by giving effect to petitioner’s vague proofs, would not compel, even if it would justify, resort to the extraordinary procedure of sections 327 and 328.

The order of the board is affirmed.


author: MANTON, Circuit Judge.

text:
    WEYL v. COMMISSIONER OF INTERNAL REVENUE.
    No. 216.
    Circuit Court of Appeals, Second Circuit.
    April 13, 1931.
    Nicholas Kelley, of New York City (Henry E. Kelley, of New York City, of counsel), for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and Hayner N. Larson, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Prank M. Thompson, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
    Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   MANTON, Circuit Judge.

The taxpayer, in 1922, contributed $665 and in 1923 $650 to the League for Industrial Democracy. She appeals from an order of the Board of Tax Appeals which denied her these sums as deductions for educational purposes and contributions under section 214 (a) (11) (B) of the Revenue Act of 1921 (42 Stat. 227, 241). It resulted in deficiencies in her income tax of $85.80 for 1922 and $66.41 for 1923. .

The statute provides, section 214 (a), Revenue Act of 1921:

“That in computing net income there shall be allowed as deductions: * * *
“(11) Contributions ór gifts made within the taxable year to or for the use of * * * (B) any corporation, or communi-' ty chest, fund, or foundation, organized and' operated exclusively for * * * educational purposes * * * no part of the net earnings of which inures to the benefit of any private stockholder or individual;”

And the same Revenue Act, § 2 subd. (2), provides:

“The term 'corporation’ includes associations, joint-stock companies, and insurance companies.”

The sole question presented is whether the League for Industrial Democracy is an educational corporation within the meaning of the statute. The facts are not in dispute. The League makes researches, gives lectures, ■holds debates and discussions, promotes, by writing pamphlets, books, and helping to distribute them, giviiig information concerning economic and social problems. It is well organized, has substantial sponsors, and claims to have a definite social doctrine. It claims the best education is self-education, and considers that the best work it can do among the colleges is by voluntary groups which organize themselves in various colleges and seek the benefit of the publication of its information. The fact that its aim may or may not resemble that of a political party does not of itself remove it from the category of an association engaged in educational work.

Congress did not include a definition of the term “education’.’ as used in the act. In the absence of specific definition, the words are to be given their usual and accepted meaning. Matter of Will of Fox, 52 N. Y. 530,11 Am. Rep. 751. “Education” has been defined by the encyclopedia and.dictionaries as “imparting or acquisition of knowledge; mental and moral training; cultivation of the mind, feelings and manners.” The definition given by the Funk & Wagnalls’ New Standard Dictionary, vol. 1, may be referred to:

“Education as understood today, connotes all those processes cultivated by a given society as means for the realization in the individual of the ideals of the community as a whole. It has for its aim the development of the powers of man (1) by exercising each along its particular line, (2) by properly coordinating and subordinating them (3) by taking advantage of the law of habit, and (4) by appealing to human interest and enthusiasm. It includes not only the narro.w conception of instruction, to which it was formerly limited, but embraces all forms of human experience, owing to the recognition of the fact that every stimulus with its corresponding reaction has a definite effect on character. It may be either mainly esthetic, ethical, intellectual, physical or technical, but to be most satisfactory it must involve and develop all these sides of human capacity.”

The literature which the League distributes covers different authors, and is of interest and information to students of political subjects and political economy. All is the subject of education.

The organization has no legislative program hovering over its activities. It is clear that, as Congress did not intend to use the word “education” in the statute in any exceptional sense, but giving it its plain, ordinary meaning, it is applicable to this appellant’s contributions, and the deduction should have been allowed.

Order reversed.


text:
    BERLINGER v. BUSCH JEWELRY CO., Inc.
    No. 328.
    Circuit Court of Appeals, Second Circuit.
    April 13, 1931.
    Levisohn, Niner & Levisohn, of New York City (Edwin Levisohn, of New York City, of counsel), for appellant.
    Morris Kirsehstein, of New York City, for appellee.

      Before MANTON, L. HAND, and CHASE, Circuit Judges.
   MANTON, Circuit Judge.

The appellant is charged with the infringement of design letters patent No. 70,-209, issued May 25,1926, a design for a wedding ring. Both noninfringement and invalidity are asserted in the answer. The decree was for the appellee, and the appellant appeals. The .infringing devices are rings marked “Exhibits 8 and 9.” The patent resulted from an application filed April 19, 1924.

The application was rejected by the Examiner on the design, patent No. 48,282, dated November 30, 1915, mechanical patent No. 1,431,652, dated October 10, 1922, with the statement: “It would be a mere matter of choice whether the design of hearts be arranged horizontally or vertically about the ring. To be patentable a design must represent invention over what has preceded.” But the appellee asserts that a wedding ring has not been shown which was entirely formed of hearts set alternately with relation to each other, and it asserts that its inventor was the first “to have conceived the idea of setting hearts in alternate arrangement so that the ring itself keeps the same width throughout, while the hearts first point in one direction and then in the other.”

The Examiners in Chief granted patent-ability over the two patents referred to by the Examiner, and said: “Assuming that these references are the most nearly analogous or pertinent art available to the examiner, and in the absence of any art disclosing such an arrangement of symbols on a ring, we consider the design to possess sufficient artistic merit to warrant its allowance.”

But the prior art, which was not referred to in the Patent Office, clearly discloses want of inventive thought. The patent to Hodnefield, No. 62,727, dated July 24, 1923, shows a finger ring with hearts set alternately with relation to each other and pointed in opposite directions. The patent to Spiro, No. 62,747, dated July 24, 1923, shows a wedding ring with a piurality of hearts set alternately with relation to each other and pointed in opposite directions. The patent to Bastheim, dated July 3, 1923, No. 62,598, is formed of hearts set alternately with relation to each other in an arrangement where the hearts first point in one direction and then in the other. Moreover, the prior use of Oskamp Nolting & Co. of 1905, of which a record was made by filing in the New York Public Library November 6, 1905, shows items 6831, 6835, and 6840 of wedding rings like the design patent here considered. This catalogue clearly shows that setting of hearts in wedding rings had been, known for twenty years prior to this patent application. It is urged that the patent in suit is distinguished from the Oskamp prior use because in the latter a leaf, and not a heart was used. But we think the items there indicate a heart. A design is not patentable merely because it can be distinguished in appearance from prior designs. Its creation must involve the exercise of inventive faculty. With the prior art, as established at the trial, and with its knowledge over such a period of time, this patentee cannot be said to have shown the degree of genius necessary for invention. Smith v. Whitman Saddle Co., 148 U. S. 674,13 S. Ct. 768, 37 L. Ed. 606; Majestic Elec. Develop. Co. v. Westinghouse E. & Mfg. Co., 276 E. 676 (C. C. A. 9); Knapp v. Will & Baumer Co., 273 E. 380 (C. C. A. 2).

There was no originality in this design; alternating the hearts in a design was old and used. In the absence of novelty and utility or originality in beauty, there was no invention. Mere skill of continuing the hearts around the entire ring rather than part of it did not amount to inventive thought. The adaptation of old forms to new purposes, however convenient and useful or beautiful, may not, in their new role, be regarded as'invention. The state of the art, as this record discloses, shows that the design for jewelry and particularly for wedding rings, used hearts set alternately with relation to each other so that the hearts point alternately in one direction and then in the other. Eor want of patentability, the decree below is reversed.

Deeree reversed.


text:
    In re HYMAN. HYMAN v. KESSLER.
    No. 5690.
    Circuit Court of Appeals, Sixth Circuit.
    April 15, 1931.
    D. A. Sachs, Jr., of Louisville, Ky. (Walter S. Lapp, of Louisville, Ky., on the brief), for appellant.
    Gilbert Burnett, of Louisville, Ky., for appellee.
    Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
   PER CURIAM.

This is a petition to review an order of tbe District Court requiring petitioner to appear and be examined concerning tbe acts, conduct, and property of ber busband, a bankrupt. Tbe order was issued under section 21a of tbe Bankruptcy Aet, as amended by Aet Feb. 5, 1903, § 7, 11 USCA § 44 (a). Tbe Congress passed an act in 1906 (28 USCA § 631) declaring “tbe competency of a witness to testify in any civil action, suit, or proceeding in the courts of tbe United States shall be determined by the laws of tbe State or Territory in which tbe court is' held.” Section 606 of tbe Civil Code of Practice of Kentucky provides, with certain exceptions not here pertinent, that: “Neither a busband nor bis wife shall testify while tbe marriage exists or afterwards concerning any communication between them during marriage. Nor shall either of them testify against tbe other.”

It is tbe contention of petitioner that tbe act of 1906 modified section 21a of tbe ■Bankruptcy Act, as amended by tbe act of 1903, to tbe extent that it made tbe state law controlling, and as a wife cannot testify against ber busband or concerning any communications bad with him under tbe Kentucky law, it was not within tbe power of tbe bankruptcy court to order the petitioner to appear in court and testify in tbe present ease. Counsel rely upon. In re Kessler (D. C.) 225 F. 394. We cannot accept the decision in that ease as sound. Prior to 1903, tbe Bankruptcy Aet provided that a court might require .any person, including tbe bankrupt, “who is a competent witness under the laws of tbe State in which the proceedings are pending,” to appear in court to be examined concerning tbe acts, conduct, or property of tbe bankrupt. By tbe amendment of 1903 tbe words, “who is a competent witness under the laws of the State in which the proceedings .are pending,” were stricken from tbe aet and there were substituted therefor the words “and bis wife.” At that time great diversity existed in tbe laws of tbe several state's as to tbe competency of a busband or wife as a witness in ,a proceeding in which tbe other was interested, and in tbe interest of uniformity, as well as because in many eases tbe wife is tbe only witness who can shed any light upon tbe whereabouts of concealed .assets, there was good reason for tbe enactment of tbe amendment. Thus tbe Congress specifically included the wife within tbe provisions of section 21a of tbe act as one compellable to appear and testify concerning any business of tbe bankrupt transacted by ber or1 to which sbe bad been a party. Tbe later act of 1906 makes no reference whatever to tbe Bankruptcy Aet. It is not, we think, to be construed as repealing the former aet by implication. In re Cohn (D. C.) 39 F.(2d) 89. This is the view taken by tbe text-writers. Remington on Bankruptcy (1923), § 2022; Gilbert’s Collier on Bankruptcy (1927), p. 464; Black on Bankruptcy (3d Ed. 1922) par. 263.

Tbe order is affirmed.


author: FARIS, District Judge.

text:
    REID, MURDOCH & CO. v. H. P. COFFEE CO.
    No. 8333.
    District Court, E. D. Missouri, E. D.
    Nov. 18, 1929.
    Judgment reversed 48 F.(2d) 817.
    Pred Gerlach, of Chicago, Ill., and Douglas Robert, of St. Louis, Mo., for plaintiff.
    Eilers & Schaumberg, Wm, H. Schaumberg, and Roy M. Eilers, all of St. Louis, Mo., for defendant.
   FARIS, District Judge.

This is an action to enjoin the alleged infringement by defendant of plaintiff’s registered trade-mark, and to enjoin certain acts of alleged unfair competition on defendant’s part.

Both parties are corporations, plaintiff being incorporated under the law of the state of Illinois, and the defendant being a corporation of the state of Missouri.

The decisive facts of the case are few, and, in my opinion, fairly simple. As early as August 13, 1878, plaintiff’s predecessor registered its trade-mark for baking powder and cream of tarter. This trade-mark consisted of a tiger’s head with the word “Monarch” printed or engraved above said head in large, white, and ornamental letters, and having the words “Baking Powder” in an angular scroll-below the tiger’s head.

In 1883, plaintiff’s predecessor registered the word “Monarch” similarly printed or engraved, which (to quote the language of the registrant) “has generally been used in connection with the head of a lion” as a trade-mark for canned goods, seemingly, peaches and other preserved fruits of similar sorts.

In 1886, plaintiff’s predecessor registered the words “Monarch Mills,” printed in large white Gothic type above a lion’s head, for the products of its “Coffee and Spice Mills.”

Later, and in 1922, plaintiff registered for practically all of its products another trade-mark. These products, then as now, consist of condiments, canned fruits, coffee, tea, canned meats, canned vegetables, flour, and divers cereals. This last-mentioned trade-mark consisted of the word “Monarch” printed or engraved in a crescent shape, in large black Gothic capitals, above its usual lion’s head.

Defendant has never registered the word “Monarch” as a trade-mark. It uses this word now on packaged coffee and on coffee sold in sealed cans, printing the word, or engraving it in either white or black Gothic capitals, so that it appears to simulate the word “Monarch” as used by plaintiff, fairly closely. It has never used either the lion’s head or the tiger’s head as a part of this insignia.

Defendant’s predecessors began business in 1853. In 1886, Henry Petring, one of the original organizers, died. The business was then carried on by two of his sons, one of whom — the elder — died in 1925, and the other, a witness in the ease on the trial, retired from the defendant corporation some two years before this action was begun.

Prom the earliest recollection of the witness last mentioned, which takes the use of the word in controversy back to at least 1884, the predecessors of defendant used the word “Monarch” to designate coffee sold by defendant and such predecessors.

Another witness, an aged truck driver, recalls the use of the word by defendant’s predecessors as early as 1879.

At least two other witnesses, George Pet-ring and Henry Petring, who must have known when the use of the word “Monarch” by defendant on coffee first began, died before this suit was instituted.

Nothing is clearer from the record than that defendant’s predecessor sold, in more than a dozen states, including, of course, the state of Missouri, large quantities of coffee branded “Monarch” on the containers, as early as 1897. In this statement I am now leaving out of consideration the evidence as to much earlier use, by the truck driver and by Mr. Walter H. Petring, for the sake, merely, of the argument.

In 1907, defendant began to sell its roasted packaged coffee, contained in paper bags, cardboard cartons, and tin cans, extensively by mail, until now it has a very large business so carried on in many states. Defendant has never advertised extensively, if at all, while, on the other hand, plaintiff has spent,- and is now spending, very large sums in advertising its well-known “Monarch” brand of foods, drinks, and condiments.

It is clear that defendant has not, since 1907, at least, used the word “Monarch” to show the origin of its coffees; at least not on all'of its twenty-odd brands. It at all times, since 1907, had, as forecast already, other brands, only one of which it designated qs its “Monarch” brand. It never, it seems, used the word “Monarch” to designate any other of its goods or groceries, save and except coffee.

Defendant’s cans used for the coffee sold by it are, so far as samples in evidence disclose, of a wholly different shape and color from those of plaintiff. This is true, also, of the coffee sold by defendant in paper packages and in cardboard cartons. The printing, save as to the single word “Monarch,” is also dissimilar in shape and color, and the word “Petring’s” prominently appears' on all of defendant’s packages.

The evidence disclosed that numerous retailers of defendant’s packaged and canned “Monarch” brand of coffee were guilty of palming off on their customers the cheaper “Monarch” coffee of defendant for the dearer product of plaintiff. This these dealers were enabled to do, not by reason of any printed or colored or physical similarity between the respective containers, but wholly by reason of the fact that the packages of both plaintiff and defendant bore the word “Monarch.”

As said, defendant has never used the lion’s head, nor the tiger’s head, while plaintiff has done so practically always.

No connivance between the defendant and the retailers, thus guilty of unfair competition, appeared on the trial. These dealers merely advertised “Monarch” coffee, without specifying, as both the cans and cartons of defendant plainly disclosed, that the coffees offered were defendant’s product, and not that of plaintiff. It is clear that buyers were misled, by-the acts of the retailers, but not by any affirmative act of defendant, save their insistence upon the use of the word “Monarch” as a brand mark for one of their brands of coffee. Ocular examination of the respective containers of defendant and plaintiff, discloses, I repeat, a total dissimilarity, save for the use of the word “Monarch” on both products. Moreover, defendant discloses, by printed words of sufficient prominence, that the origin of the goods is “Pet-ring’s,” and not plaintiff’s.

I have no trouble, on the bare bones of the record evidence in finding plaintiff entitled to the trade-mark in controversy. But the serious question is whether it has not so far been guilty of laches as to preclude the maintenance of this action. It made some sort of protest to defendant in either the year 1901 or 1908, it is true; but the removal of defendant’s office, and consequent loss of its files, and perhaps the death of George Pet-ring, precluded any definite disclosure of the nature or result of such protest, and either twenty years, or twenty-seven years, elapsed after this protest until this action was brought by plaintiff. In the meantime, at least two important witnesses for defendant had died, and many, if not all, of its files and records were lost by the removal of its office..

I conclude that plaintiff has been guilty of laches, which precludes the maintenance of this action. I do not think the fact that defendant’s use of the word “Monarch” as a brand or grade mark militates against this •view. While the property in the trade-mark is in plaintiff, it ought yet to be barred from suing one, who has used the mark as at least a grade mark, for almost fifty years, perhaps much longer. How much longer, and as to the extent and nature of such use, that is, as to whether as a trade-mark or as a grade mark, prior to the deaths of Henry Petring and George Petring, the deaths of these witnesses and the loss of records have now prevented defendant from showing.

I think the cases 5f Saxlebner v. Eisner, etc., Co., 179 U. S. 19, 21 S. Ct. 7, 45 L. Ed. 60, and the very late case of Ancient, etc., Order of Nobles of Mystic Shrine v. Michaux, 279 U. S. 737, 49 S. Ct. 485, 73 L. Ed. 931, are ample authority for this view.

As indicated already, there is nothing in the application of the doctrine of laches which precludes the conclusion that plaintiff is the owner of the trade-mark, but at the same time refuses to grant relief. In fact, if, as I think, plaintiff has been guilty of laches, the court could, even without at all considering the right to the mark, have so ruled out of hand. Por laches will, in a proper case, bar a suit, and will, by the same token, cut off examination of the intrinsic merits of plaintiff’s contentions.

I think it is clear, however, that, if the facts warrant, plaintiff could yet maintain its action for unfair competition. But on a careful comparison of the containers of both plaintiff and defendant, I am unable to say that there is such similarity, save for the single word “Monarch” printed on both plaintiff’s and defendant’s containers, as was calculated to deceive even an unwary purchaser. Defendant prints the word “Pet-ring’s,” on three out of four of the containers offered in evidence, in much larger type and much more prominently than it prints the word “Monarch.”

Customers were undoubtedly deceived, it is true, but they were deceived because retailers advertised “Monarch” 'coffee without specifying whether such coffee was the product of plaintiff or of defendant; in the face of the fact that all of defendant’s containers, as I have already said, clearly ánd prominently disclosed that such coffees were the product of defendant. Moreover, as said already, there is no physical similarity between plaintiff’s containers and those of defendant, either in shape, color, or printed matter, the word “Monarch” alone excepted, and for the most part this .word is in small type,' while the word “Petring’s” is in large type on the majority of defendant’s cartons, cans, and packages.

I see no reason why, if plaintiff is so advised, it may not proceed against such local dealers as, in this situation, are guilty of unfair competition, although, coneededly, that matter is not before me. But I am convinced that equity ought not, under the facts here, to afford relief to the plaintiff as against the defendant, plaintiff’s obvious laches considered.

The finding will be for defendant and against plaintiff, and the bill of complaint of plaintiff will be dismissed. An order to this end may be presented for entry accordingly.


author: GARDNER, Circuit Judge. STONE, Circuit Judge

text:
    REID, MURDOCH & CO. v. H. P. COFFEE CO.
    No. 8867.
    Circuit Court of Appeals, Eighth Circuit.
    March 4, 1931.
    Rehearing Denied April 17, 1931.

      STONE, Circuit Judge, dissenting.
    Reversed and remanded.
    Fred Gerlach, of Chicago, Ill. (Douglas W. Robert, of St. Louis, Mo., on the brief), for appellant.
    William H. Sehaumberg, of St. Louis, Mo. (Roy M. Eilers, of St. Louis, Mo., on the brief), for appellee.
    Before STONE and GARDNER, Circuit Judges, and WYMAN, District Judge.
   GARDNER, Circuit Judge.

Appellant, as plaintiff in the lower court, brought suit to enjoin the alleged infringement by the defendant of its registered trademark, and to enjoin certain acts of alleged unfair competition. The material facts as summarized by the lower court are substantially as follows:

As early as August 13, 1878, plaintiff’s predecessor registered its trade-mark for baking powder and cream of tartar. This trade-mark consisted of a tiger’s head with the word “Monarch” printed or engraved above the tiger’s head in large white and enameled letters,, with the words “Baking Powder” in an angular scroll below the tiger’s head. In 1883 plaintiff’s predecessor registered the word “Monarch” similarly printed or engraved, which has been generally used in connection with the head of a lion as a trademark for canned goods and other preserved fruits. In 1886 plaintiff’s predecessor registered the words “Monarch Mills,” printed in large white Gothic type above a lion’s head for the products of its “Coffee and Spice Mills.” In 1922 plaintiff registered for practically all of its products, consisting of condiments, canned fruits, coffee, tea, canned meats, canned vegetables, flour, and divers cereals, another trade-mark. This last-mentioned trade-mark consisted of the word “Monarch” printed or engraved in a crescent shape in large black Gothic capitals above its usual lion’s head.

Defendant has never registered the word “Monarch” as a trade-mark, but uses this word now on packaged coffee and on coffee sold in sealed cans, printing or engraving the word on either side in black Gothic capitals, so that it appears to simulate fairly closely the word “Monarch” as used by the plaintiff. Defendant has never used either the lion’s head nor the tiger’s head as a part of this designation. Defendant’s predecessors began business in 1853. In 1886 Henry Petring, one of the original organizers, died, and the business was then carried on by two of his sons, one of whom died in 1925, and the other retired from the defendant corporation some two years before the commencement of this action. The predecessors of defendant used the word “Monarch” to designate coffee sold by it and its predecessors as early as 1879. Defendant’s predecessors sold in more than a dozen states, including the state of Missouri, large quantities of coffee branded “Monarch” on the containers as early as 1897» In 1907 defendant began to sell its roasted packaged coffee, contained in paper bags, cardboard cartons, and tin cans, extensively by mail, until at the time of the trial of this suit it had a very large business so carried on in many states.

Defendant has never advertised extensively, if at all, while the plaintiff has spent, and is now spending, very large sums of money in advertising its well-known “Monarch” brand of foods, drinks, and condiments. At least since 1907, if ever, the defendant has not used the word “Monarch” to show the origin of its coffee, but since that time, of the twenty odd brands of coffee handled by it, only one was designated as its “Monarch” brand. It never used the word “Monarch” to designate any other of its goods or groceries, save and except coffee, and the word was used as a brand or grade mark, rather than ’as a trade-mark. Defendant’s cans, paper packages, and cardboard cartons used for the coffee sold by it were of a different shape and color from those of the plaintiff. The printing, except as to the word “Monarch,” was also dissimilar in shape and color, and the word “Petring’s” appeared on all of the defendant’s packages.

As early as 1925 numerous retailers of the defendant’s packaged and canned “Monarch” brand of coffee, advertised it in the local papers as “Monarch” with no further identification, for the purpose of palming off a cheaper product for that of the established brand of coffee put out by the plaintiff, and they succeeded in palming off on their customers this cheaper “Monarch” coffee of the defendant for the dearer and higher grade product of the plaintiff. This the retail dealers were enabled to do by reason of the fact that the packages and containers of both plaintiff and defendant bore the word “Monarch.” Customers were deceived because of these advertisements which indicated that the coffee advertised was of the “Monarch” brand which had become widely known as the coffee put out by the plaintiff, and in the grocery trade generally, the word “Monarch” had come to mean the products or goods of Reid, Murdoch & Co. This trade-mark had been used by plaintiff only on foods of a very high quality, which, under this trade-mark, had been widely advertised as such by the plaintiff at a very large expense.

While buyers were misled by these acts of the retailers, the defendant did not directly connive with the retailers, except that it used the word “Monarch” as a brand mark for one of its brands of coffee. A careful examination and comparison of the respective containers of the defendant and plaintiff would disclose a dissimilarity, save for the use of the word “Monarch” on both classes of containers.

The court concluded that the plaintiff was entitled to the trade-mark in controversy, but was not entitled to relief in the suit because: (1) Defendant had not connived with the retail merchants, nor participated in the acts of unfair competition, and hence was not responsible therefor; and (2) that the plaintiff, by its laches, was estopped from now complaining of the defendant’s use of the word “Monarch.” These conclusions of the lower court are challenged by plaintiff on this appeal.

It appears that, while the defendant made some use of the word .“Monarch” in connection with its coffee, it was not a trademark use, but it was used as a grade mark to designate or identify one of its various grades of cheap coffee. Such use of the name would not entitle it to its use as a trademark. Touraine Co. v. Washburn & Co., 52 App. D. C. 356, 286 F. 1020; Macmahan Pharmacal Co. v. Denver Chemical Co. (C. C. A.) 113 F. 468; N. K. Fairbank Co. v. Luekel, King & Cake Soap Co. (C. C. A.) 102 F. 327. This, we understand, was the view of the lower court, but, notwithstanding this announced view, both of the parties seek to reargue the question here. We think the lower court was correct in so concluding, and we are of the view that the defendant’s use of the word “Monarch” was an infringement on plaintiff’s trade-mark. Layton Pure Food Co. v. Church & Dwight Co. (C. C. A.) 182 F. 24; Queen Mfg. Co. v. Isaac Ginsberg & Bros. (C. C. A.) 25 F.(2d) 284, 287; Gordon’s Dry Gin Co. v. Eddy & Fisher Co. (D. C.) 246 F. 954; McDonald & Morrison Mfg. Co. v. H. Mueller Mfg. Co. (C. C. A.) 183 F. 972, 974. As said by this court in Queen Mfg. Co. v. Isaac Ginsberg & Bros., supra: “There may be infringement where the substantial and distinctive part of the trademark is copied or imitated. * * * Dissimilarity in size, form, and color of the label and place where it is applied are not conclusive against infringement. n Where a trade-mark contains a dominating or distinguishing word such as the word 'Queen’ in the instant ease, and where the purchasing public has come to know and designate the article by such dominating word, the use of such word by another in marking similar goods may constitute infringement, although the latter mark, aside from such dominating word, may be dissimilar.”

This court in McDonald & Morrison Mfg. Co. v. H. Mueller Mfg. Co., supra, said: “The test is not whether, when goods are placed side by side, a difference can be recognized in the labels or marks'; but the test is, when such goods are not placed side by side, would an ordinarily. prudent purchaser be liable to purchase the one, believing that he was purchasing the other?”

It is, however, the contention of the defendant, and the lower court so held, that the plaintiff was not entitled to injunctive relief against it for unfair competition because it had not connived with the retail grocers in their acts of unfair competition. It is true the defendant had no direct part in these acts of‘unfair competition. The goods, however, as put out by it bore the name “Monarch,” and, while it is true the containers bore other distinguishing marks, yet the use of the word “Monarch” furnished the merchants with the means or tools of committing a fraud upon the public. The acts of these retail merchants might well have been anticipated by the defendant. These goods were supplied by the defendant for the purpose of being resold on the market, and the use of this word “Mon-' arch” by it made it possible for the retail merchants to commit a fraud upon the public to the injury of the plaintiff. N. K. Fairbank Co. v. R. W. Bell Mfg. Co. (C. C. A.) 77 F. 869; Yon Murom v. Frash (C. C.) 56 F. 830; N. K. Fairbank Co. v. Luckel, King & Cake Soap Co. (C. C. A.) 102 F. 327; Rice & Hutchins v. Yera Shoe Co. (C. C. A.) 290 F. 124; Amoskeag Mfg. Co. v. Vainer, 101 U. S. 51, 63, 25 L. Ed. 993; Chapelle v. Applebaum (D. C.) 254 F. 709; New England Awl & Needle Co. v. Marlborough Co., 168 Mass. 154, 46 N. E. 386, 387, 60 Am. St. Rep. 377.

Defendant’s contention in the instant ease is effectively answered in the opinion by Mr. Justice Holmes in New England Awl & Needle Co. v. Marlborough Co., supra, where it is said: “They knew that they were putting the power to do so into the retail dealers’ hands. It hardly can be doubted that they contemplated that the wholesale dealer at whose request they put up their awls in this form, with full knowledge of the plaintiff’s prior use, would or might try to deceive the public, and whether they did or not is immaterial.”

The same rule is announced in Amoskeag Mfg. Co. v. David Trainer, supra, where it is said: “Neither will the complainant be deprived of remedy in equity, even if it be shown by the respondent that all the persons who bought goods from him bearing the trade-mark of the real owner were well aware that they were not of the complainant’s manufacture. If the goods were so supplied by the wrong-doer for the purpose of being resold in the market, the injury to the complainant is sufficient to entitle him to relief in equity.”

We are of the view that the defendant must, therefore, be held responsible for these conceded acts of unfair competition, and plaintiff was entitled to injunetional relief, unless precluded by its laches.

It remains to consider whether, as held by the lower court, the plaintiff was estopped from maintaining this suit by reason of "its laches. The practice of the grocers in advertising defendant’s coffee as “Monarch” did not come to the knowledge of the plaintiff until 1925, at which time it promptly gave notice of protest to the defendant. There was apparently some correspondence in 1901 and 1908 with reference to the use of this name by the defendant. The correspondence, however, does not indicate acquiescence on the part of the plaintiff in the use of its trademark, and the evidence indicates that the defendant abandoned the use of the word as a mark on the goods complained of at that time.

Violation of a trade-mark and unfair competition constitute a continuing wrong, and, while laches may be a ground for denying a right to recover damages, it will not ordinarily constitute a bar to an injunction for future infringement. There is no claim that the defendant, in carrying on its mail order business, has expended any money to build up a good will in the name which it claims is a grade mark. Any delay, therefore, on behalf of the plaintiff in asserting its exclusive right to the use of this name has not caused any injury to the defendant. The deception practiced by the retail grocers was not, it must be remembered, known to plaintiff until about 1925. This unfair competition threatens to be a continuing wrong against plaintiff’s well-advertised trade-mark and good will. Under these circumstances, it cannot properly be held that plaintiff was guilty of such laches as to preclude its right to injunetional relief. Layton Pure Food Co. v. Church & Dwight Co. (C. C. A.) 182 F. 24, 33; Layton Pure Food Co. v. Church & Dwight Co. (C. C. A.) 182 F. 35, 32 L. R. A. (N. S.) 274; Moline Plow Co. v. Omaha Iron Store (C. C. A.) 235 F. 519, 525; Valvoline Oil Co. v. Havoline Oil Co. (D. C.) 211 F. 189; Edward & John Burke v. Bishop (C. C.) 175 F. 167; Beattie Mfg. Co. v. Smith et al. (C. C. A.) 275 F. 164; Dr. Peter H. Fahrney & Sons Co. v. Ruminer et al. (C. C. A.) 153 F. 735, 737; N. K. Fairbank Co. v. Luckel, King & Cake Soap Co. (C. C. A.) 116 F. 332; Saxlehner v. Siegel-Cooper Co., 179 U. S. 42, 21 S. Ct. 16, 45 L. Ed. 77; McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828.

This court in Layton Pure Food Co. v. Church & Dwight Co., supra, said: “The owner of a trade-mark is not chargeable with laches for failure to prosecute an infringer before he knows or has such notice as would lead an ordinarily prudent person to inquire and learn the existence of the infringement.”

In Moline Plow Co. v. Omaha Iron Store Co., supra, this court again said: “The record contains no substantial evidence of an abandonment of its rights by the Moline Company, and constant of continuing trespasses neither deprive the victim of his equitable right to an injunction against their continuanee in the future, nor confer upon the trespasser any right to perpetuate them.”

TVhat is said by this court in Layton Pure Pood Co. v. Church & Dwight Co., supra, is here apposite. It is there said: “The complainant is the owner of a trade-mark for baking soda and baking powder consisting of this picture of a cow and this is valuable property. It is entitled to be protected in the exclusive use of this property. Every sale under this trade-mark of a package of baking powder manufactured by another is an infringement of the complainant’s right and a trespass upon its property. While the delay of the complainant and its apparent acquiescence in past trespasses may make it inequitable to compel the defendant to account' for the profit it derived from them, they confer upon it no right either at law or in equity to continue them.”

It has been said by the Supreme Court in McLean v. Fleming, that even “inexcusable laches in seeking redress was no defense against that 'part of the prayer of the bill that sought to restrain an infringement in the future.” Dr. Peter H. Eah-mey &' Sons Co. v. Ruminer, supra.

The lower court was of the view that its holding that the plaintiff should be precluded by reason of its laches found support in Saxlehner v. Siegel-Cooper Co., supra, but in that ease the court said: “We think that an injunction should issue against all these defendants, but that, as the Siegel-Cooper Company appears to have acted in good faith, and the sales of the others were small, they should not be required to account for gains and profits. The fact that the Siegel-Cooper Company acted innocently does not exonerate it from the charge of infringement.” (Italics ours.)

In the instant ease the lower court might very properly have denied the plaintiff’s prayer for an accounting or for damages, but we are of the view that the court was in error in denying the plaintiff injunetional relief. The judgment is, therefore, reversed, and the cause remanded, for further proceedings consistent herewith.

STONE, Circuit Judge

(dissenting).

I feel compelled to dissent upon the ground of the laches of appellant. This was the basis of the determination of the trial court. That determination well expressed the situation in an opinion which seems sound to me and which makes repetition here unnecessary.


author: WOOLSEY, District Judge.

text:
    UNITED STATES v. ONE OBSCENE BOOK ENTITLED “MARRIED LOVE.” Claim of G. P. PUTNAM’S SONS.
    District Court, S. D. New York.
    April 6, 1931.

      George Z. Medalie, U. S. Atty., of New York City. (Morton Baum, Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst and Alexander Lindey, both of New York City, of counsel), for-claimant.
   WOOLSEY, District Judge.

I dismiss the libel in this case.

I. The first point with which I shall deal is as to the contention that the section of the Tariff Act under which this libel was brought, title 19, U. S. C., § 1305 (19 USCA § 1305), is unconstitutional as impinging on the right of the freedom of the press. I think there is nothing in this contention. The section does not involve the suppression of a .book before it is published, but the exclusion of an already published book which is sought to be brought into the United States.

After a book is published, its lot in the world is like that of anything else. It must conform to the law and, if it does not, must be subject to the penalties involved in its failure to do so. Laws which are thus disciplinary of publications, whether involving exclusion from the mails or from this country, do not interfere with freedom of the press.

II. Passing to the second point, I think that the matter -here involved is res adjudieata by reason of the decision hereinafter mentioned.

This is a proceeding in rem against a book entitled “Married Love,” written by Dr. Marie C. Stopes and sent from England by the London branch of G. P. Putnam’s Sons to their New York office.

The libel was filed under the provisions of Title 19, U. S. C., § 1305 (19- USCA § 1305), which provides, so far as is here relevant, as follows:

“§ 1305. Immoral Articles — Importation Prohibited, (a) Prohibition of importation. All persons are prohibited from importing into the United States from any foreign country -* * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, pictures, drawing, or other representation, figure, or image on or of paper or other material, or any east, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for the prevention of conception or for causing unlawful abortion. * * No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and.all such articles * * * shall be subject to seizure and forfeiture as hereinafter provided: * * * Provided further, that the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.”
Then it goes on:
“Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided. * * * Upon the seizure of such book or matter the collector shall transmit information thereof to the, district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.
‘‘Tn any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the ease of ordinary actions or suits.”

The book before me now has had stricken from it all matters dealing with contraceptive instruction and, hence, does not come now within the prohibition of the statute against imports for such purposes, even if a book dealing with such matters falls within the provisions of this section — which I think it probably does not — -and the case falls to be dealt with entirely on the question of whether the book is obscene or immoral.

Another copy of this same book, without the excision of the passages dealing with contraceptive matters, was before Judge Kirkpatrick, United States District Judge for the Eastern District of Pennsylvania, on a forfeiture libel under the Tariff Act of 1922, and he ruled that the book was not obscene or immoral, and directed a verdict for the claimant.

Although the government took an exception to this ruling at the time of the trial, it did not mature this exception by an appeal, and the case therefore stands as a final •decision of a coordinate court in a proceeding in rem involving the same book that we .have here. The answer in this case is amended and pleads res adjudieata on the ground ■of the proceedings had before Judge Kirkpatrick which involved exactly the same question as that now before me.

The only difference between the Philadelphia ease and this case is that another copy of the same book has been here seized and libeled.

I think that the proper view of the meaning of the word “book” in title 19, U. S. C., § 1305 (19 USCA § 1305), is not merely a few sheets of paper bound together in-cloth or otherwise, but that a book means an assembly or concourse of ideas expressed in words, the subject-matter which is embodied in the book, which is sought to be excluded, and not merely the physical object called a book which can be held in one’s hands.

Assuming it is .proper so to view the meaning of the word “book” in the statute under consideration, Judge Kirkpatrick’s decision at Philadelphia in a proceeding in rem against this book is a bar to another similar proceeding such as this in this district.

I hold that Judge Kirkpatrick’s decision established the book “Married Love” as having an admissible status at any point around the customs’ barriers of the United States. In this connection, see Gelston v. Hoyt, 3 Wheat. 246, 312 to page 316, 4 L. Ed. 381; Waples on Proceedings in R-em, §§ 87, 110, 111, 112, and cases therein cited.

It is perfectly obvious, I think, that, if a vessel had been libeled on a certain count for forfeiture at Philadelphia, and there acquitted of liability to forfeiture, on her coming around to New York she could not properly be libeled again on the same count. That is the real situation in the present case. Cf. United States v. 2180 Cases of Champagne, 9 F.(2d) 710, 712, 713 (C. G. A. 2).

III. However, in case the Circuit Court of Appeals, to which I presume this case will eventually be taken, should disagree with my construction of the word “book,” and should consider that it was a copy of the book that was subject to exclusion, and not merely the book regarded as an embodiment of ideas, or should disagree with my application of the admiralty law to a situation of this kind, I will now deal with the ease on the merits.

In Murray’s Oxford English Dictionary the word “obscene” is defined as follows:

“Obscene — 1. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome. Now somewhat arch.
“2. Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd.”

In the same Dictionary the word “immoral” is defined as follows:

“Immoral — The opposite of moral; not moral.
“1. Not consistent with, or not conforming to, moral law or requirement; opposed to or violating morality; morally evil or impure; unprincipled, vicious, dissolute. (Of persons, things, actions, etc.)
“2. Not having a moral nature or character; non-moral.”

The book “Married Love” does not, in my opinion, fall within these definitions of the words “obscene” or “immoral” in any respect.

Dr. Stopes treats quite as decently and with as much restraint of the sex relations as did Mrs. Mary Ware Dennett in “The Sex Side of Life, An Explanation for Young People,” which was held not to be obscene by the Circuit Court of Appeals for this circuit in United States v. Dennett, 39 F.(2d) 564.

The present book may fairly be said to do for adults what Mrs. Dennett’s book does for adolescents.

The Dennett Case, as I read it, teaches that this court must determine, as a matter of law in the first instance, whether the book alleged to be obscene ' falls in any sense within the definition of that word. If it does, liability to forfeiture becomes a question for the jury under proper instructions. If it does not, the question is one entirely for the court.

“Married Love” is a considered attempt to explain to married people how their mutual sex life may be made happier.

To one who had read Havelock Ellis, as I have, the subject-matter of Dr. Stope’s book is not wholly new, but it emphasizes the woman’s side of sex questions. It makes also some apparently justified criticisms of the inopportune exercise by the man in the marriage relation of what are often referred to as his conjugal or marital rights, and it pleads with seriousness, and not without some eloquence, for a better understanding by husbands of the physical and emotional side of the sex life of their wives.

I do not find anything exceptionable anywhere in the book, and I cannot imagine a normal mind to which this book would seem to be obscene or immoral within the proper definition of these words or whose sex impulses would be stirred by reading it.

Whether or not the book is scientific in some of its theses is unimportant. It is informative and instructive, and I think that any married folk who read it cannot fail to be benefited by its counsels of perfection and its frank discussion of the frequent difficulties which necessarily arise in the more intimate aspects of married life, for as Professor William G. Sumner used aptly to say in his lectures on the Science of Society at Yale, marriage, in its essence, is a status of antagonistic co-operation.

In such a status, necessarily, centripetal and centrifugal forces are continuously at work, and the measure of its success obviously depends on the extent to which the - centripetal forces are predominant.

The book before me here has as its whole thesis the strengthening of the centripetal forces in marriage, and instead of being inhospitably received, it should, I think, be welcomed within our borders.

       No opinion was filed.