author: CHESNUT, District Judge.

text:
    WALLING, Adm’r of Wage and Hour Division, v. MEN’S HATS, Inc.
    Civil Action No. 1022.
    District Court, D. Maryland.
    July 17, 1945.
    Douglas Maggs, Sol., and Archibald Cox, Asst. Sol., both of Washington, D. C., Lemuel H. Davis, Regional Atty., of Richmond, Va., and Joseph. R. Hirschmann, Atty., of Baltimore, Md., all of Department of Labor, for plaintiff.
    John H. Skeen and Frank, Skeen & Oppenheimer, all of Baltimore, Md., for defendant.
   CHESNUT, District Judge.

The original complaint in this case was filed February 7, 1941. It prayed an injunction to restrain the defendant from violation of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., in various particulars. The defendant consented to the entry of a final judgment in favor of the plaintiff and consequently on February 8, 1941 the order or decree for injunction was signed and filed.

Nothing further transpired in the case until on September 20, 1944, the plaintiff filed an application for the adjudication of the defendant as in contempt of court by reason of alleged violations of the injunction. On the same day an order was passed requiring the defendant to show cause on or before the 10th day of October, 1944, why they should not be adjudged guilty of contempt. To this order the defendant filed an answer on October 9, 1944, and on February 26, 1945, the defendant filed a demand for a jury trial in the case. On March 14, 1945 the plaintiff filed a motion to strike out the demand for a jury trial on the ground that the defendant was not entitled thereto in this-particular proceeding.

After hearing counsel orally and consideration of their briefs, I have reached the conclusion that the motion to strike the demand for a jury trial should be granted.

There seems to be no doubt that the present proceeding presents a case within the power and jurisdiction of the court to discipline the defendant if in fact it has violated the injunction. The nature of the violation is alleged failure to comply with the provisions of the Fair Labor Standards Act with respect to the hours and wages of employes. The nature of the contempt charged is, therefore, the requested discipline of the defendant corporation for failure to pay sufficient wages to its employes.

The defendant’s position is that the proceeding is in the nature of a criminal contempt; but the plaintiff’s stated position is that the proceeding is for a civil contempt. The formal procedure in the case and the nature of the general subject matter itself is indicative of a civil rather than a criminal contempt proceeding. I, therefore, accept the plaintiff’s stated characterization of the proceeding as a civil contempt for the present purpose.

The defendant apparently bases its demand for a jury trial upon 28 U.SJC.A. § 386, being the Act of October 15, 1914, c. 323, § 21, 38 Stat. 738. The enactment of this section has a well known history and was passed for a very particular purpose. I have some doubt, despite the possible literal application of the language of the section, that the present proceeding is one within the purview of the section. But even if it is, there is valid exception to its application stated in section 389 of title 28 U.S.C.A. which was originally section 24 of the Act which I find here applicable. Apart from section 386 I find no warrant in prior customary legal or equitable procedure for the defendant’s demand for a jury trial in a case of this character, as a matter of right, whether the proceeding be civil or criminal.

It has also been suggested that although not demandable as a right, the case is one in which the court may very properly submit the issue of fact to an advisory jury. But in view of the historic equity procedure in matters of this kind, I conclude that the issue of fact involved in the proceeding should be determined by the court without the intervention of even an advisory jury.

The plaintiff’s motion to strike the defendant’s demand for a jury trial is, therefore, hereby granted and the demand stricken out. See United States v. Grand Flower & Ornament Co., D.C.N.Y., 47 F. Supp. 256, which seems to be the only fully reported case directly in point. And see also United States ex rel. Walling v. Boblocki & Sons, D.C.E.D.Wis., 2 Wage & Hour Cases p. 824. Cf. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, and McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108.


source: Caselaw Access Project

author: LEDERLE, District Judge.

license: Public Domain

text:
    UNITED STATES v. PARKER-RUST-PROOF CO. et al.
    No. 3653.
    District Court, E. D. Michigan, S. D.
    May 12, 1945.

      Francis Biddle, of Washington, D. C., Samuel S. Isseks, of New York City, and Creighton R. Coleman, of Washington, D. C., John C. Lehr and Arnold W. Lunger-hausen, both of Detroit, Mich., John R. Niesley, of Great Neck, L. I., N. Y., and Julien Caplan, of New York City, for plaintiff.
    Arthur Dickey and Harness, Dickey & Pierce, all of Detroit, Mich. (Clarence E. Wilcox and Anderson, Wilcox, Lacy & Lawson, all of Detroit, Mich., and Bert D. Chandler, of Hudson, Mich., of counsel), for defendants.
    John P. O’Hara, of Detroit, Mich., for intervening defendants.
   LEDERLE, District Judge.

Findings of Fact

1. This is an action brought in accordance with the provisions of 15 U.S.C.A. §§ 4 and 25, to restrain and prevent the alleged violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 and 2, and the Clayton Act, 15 U.S.C.A. § 14.

2. The defendant, Parker-Rust-Proof Company, hereinafter referred to as “Parker,” is a Michigan corporation. From 1930 to 1936, it organized and controlled certain subsidiary corporations but these corporations were absorbed by Parker in December, 1935. The Government does not claim that anything undertaken by the formation and subsequent assimilation of these companies or by their control violated the Anti-Trust Laws.

The individual defendants namedi are citizens and residents of Michigan and officers of Parker, and all of their acts referred to in the complaint were performed as officers of the corporation.

During the course of the trial, a petition for intervention was filed by Rust Proofing and Metal Finishing Corporation, located at Cambridge, Massachusetts, Pyrene Manufacturing Company, located at Newark, New Jersey, Parker Wolverine Company, located at Detroit, Michigan, Western RustProof Company, located at Chicago, Illinois, and Parker Rust-Proof Company of Cleveland, located at Cleveland, Ohio, and these parties were permitted to intervene as defendants and to take part in these proceedings. They will hereafter be referred to as intervenors.

3. The twenty-nine page complaint sets forth in great' detail the acts of Parker which are alleged to violate the laws involved, together with much explanatory matter. In brief, it charged that Parker attempted to; and. did, secure a monopoly of the so-called rust-proofing business by the illegal use of its patents, by conspiring with some of its licensees, and by entering into illegal agreements for the purchase of the businesses of its most important competitors, with provisions in the purchase contracts which prohibited these so-called co-conspirators from again competing with Parker.

4. At pre-trial hearings under Rule 16, 28 U.S.C.A. following section 723c, stipulations comprising 98 pages were entered into, admitting, without further identification, a large amount of documentary evidence, which greatly reduced the time and expense consumed in actual conduct of the trial. See: Sunderland on “Pre-Trial,” 28 Journ.Am.Judicature Soc., page 48. All officers and employees of Parker cooperated to the fullest extent with the Government attorneys and agents in furnishing them with documentary evidence they desired to use. The officers and employees of Parker called as witnesses fully and frankly disclosed all the information which the Government sought. There is no dispute as to the authenticity of the documents offered in evidence and no conflict in testimony to be resolved. In fact, there is no dispute between the parties as to the underlying- facts, but a real controversy exists as to the inferences to be drawn from these facts, and, hence, as to the ultimate facts upon which a judgment must be based.

5. Some Parker agreements and policies might be unreasonable under some circumstances, whereas viewed in the light of actual experience, these agreements and practices are perfectly justified. In order to understand the issues involved, it is necessary to trace the history of Parker. From a modest beginning, Parker has developed into a substantial industry, and is extensively engaged in interstate commerce out of which the acts complained of arise. During peace time, Parker aided materially in developing many important industries. More recently, it has contributed substantially to our war effort in improving the materials used at the battle fronts. The company was organized in 1915 for the purpose of promoting the use of chemical coatings applied to metal surfaces, particularly iron and steel, to prevent or retard the corrosion thereof, and to provide a basis for paint or other finish. Most of Parker’s business has related to so-called phosphate coating. Parker first acquired a patent issued August 12, 1913, to Richards, United States No. 1,069,903. In the light of modern developments, the Richards patent taught a rather crude method of achieving the desired result. At first, Parker had very little capital and its business was confined almost entirely to treating small parts used mainly in connection with the automobile industry. Shortly after starting to use the Richards process, Parker purchased United States Patent No. 870,937 issued to Coslett November 12, 1907. The Coslett process achieved considerable success, and, in 1925, Parker brought suit against the Ford Motor Company, charging infringement of this patent. After a lengthy and expensive trial, Parker was awarded a decree for substantial damages. See Parker Rust Proof Co. v. Ford Motor Company, D.C., 6 F.2d 649; Id., D.C., 23 F.2d 502; Id., 6 Cir., 41 F.2d 1010.

6. Parker has always maintained a staff of chemists and other expert technical employees for two reasons: First, to improve its products and processes; and second, to aid and assist its customers in carrying out the patented processes. During its entire history, it has had the active competition of other forms of corrosion prevention, such as, galvanizing, sheradizing, plating and other similar processes.

7. From the day of the ancient alchemist, scientists have labored to devise means for endowing the baser metals with the quality of permanency of the higher metals. There is evidence that phosphates were used to protect iron articles as early as the third century. In 1869, metals were commercially treated with phosphoric acid. It was found that this changed the surface of the metal and made the iron and steel more rust resistant. Volumes have been published on the subject of corrosion control. An interesting discussion of the Parker processes appears in a volume entitled, “Protective Coatings for Metals,” by Bums and Schuh, one of the American Chemical Society monograms. Other publications reviewed during the trial were: “Corrosion — Causes and Preventions,” by Frank N. Speller, and “Protective Films on Metals,” by Ernest S. Hedges.

During its entire history, Parker has been in competition with many other scientific organizations, engaged in a search for better means to improve the surface of metals to make them more rust-resistant and to improve them for painting and other finishes. The opportunities in this field are limited only by the knowledge of the prior art and the imagination and energy of the individual who desires to enter it. The only monopoly Parker ever had on these processes is the monopoly that it acquired because of the patent laws. As its patents expired, others were free to use the processes disclosed in such patents and others have entered this field.

At all times, Parker has depended for its business and commercial success upon its control of particularly patented processes and its aggressive salesmanship, coupled with its policy of locating and employing able technical men to improve its products and to interest manufacturers in the use of its products and processes. These employees have been under contract to turn their inventions over to Parker and to assign to it any patents issued therefor. Before the Richards and Coslett patents had expired, Parker had developed new products and processes which had greater usefulness. In 1930, a new process was invented by two of its employees, Tanner and Lodeesen, and the patent for this process was assigned to it. The process disclosed in this patent, No. 1,911,726 issued May 30, 1933, made it possible to coat articles in a much shorter period of time than had previously been possible. Parker has been extremely successful in inducing manufacturers to use this improved process, which has resulted in a large increase in its business and a substantial profit to it and benefit to the public.

8. Chemicals used by Parker in the various processes covered by its patents are in common use for many other purposes, and can be purchased in the open market throughout the nation. At no time did Parker make any attempt to monopolize control of these raw materials.

9. If Parker or some other company had not actively promoted use of the processes disclosed in the patents, these processes would never have reached the wide use that they have achieved at this time. Any company engaged in promoting the use of patented processes must be diligent in order to reap the benefits of the patent prior to its expiration. There may be room for an honest difference of opinion as to whether or not the methods used by Parker to promote the use of its patents were the best methods. It is certain, however, that few patented processes ever go into extended public use unless someone actively promotes their use. It is always difficult to get customers to adopt a new and unfamiliar process, especially when this requires the installation of added and expensive equipment. A meritorious patent may remain buried for many years before some enterprising individual or company is willing to take the risk necessary to its promotion. There can be no better evidence of this than the fact that the Coslett patent, which issued in 1907, never went into extensive use until Parker promoted it. The recent case of Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 65 S.Ct. 647, contains an additional illustration of this. It is clear that throughout Parker’s history it has never attempted to restrict the use of its products and processes, but its constant aim has been to increase their use.

10. The important Parker patents have both process and product claims. None of the compositions sold by Parker have any use other than in connection with the processes covered by the patents.

To be certain that Parker processes were properly practiced, so as not to injure the company’s good will, it has found that constant supervision by its technical experts in the user’s plant was necessary. At the beginning, it appeared to Parker that this could only be done if the agreements, with purchasers restricted use of the materials to the customer’s plant. Later this was found unnecessary and this provision was not included in its sales agreements.

11. At the date of the trial most of Parker’s business was carried on with very large corporations referred to in the record as manufacturer customers. The so-called manufacturer customers altogether accounted for 97% of Parker’s business. Except for the agreement with the Norge Division of the Borg-Warner Corporation referred to in Finding No. 18, all of these customers were treated alike. There was never any understanding or agreement between Parker and these customers with the object in view of preventing the customer from using materials or processes of Parker’s competitors. None of the agreements entered into with the manufacturer customers had the effect of substantially lessening competition or creating a monopoly in any line of commerce. There is no evidence that Parker ever refused to sell materials to a manufacturer customer for the failure of the customer to live up to the agreements, even when the contracts restricted use of materials to the - customer’s plant.

12. In order to promote its business Parker entered into agreements with parties other than manufacturers to do a jobbing business, that is, treat with Parker processes the work of outside concerns. In certain cases, these agreements contained a provision that the jobbers would have the exclusive right to practice the Parker patented processes in a certain territory. These jobbers are referred to in the record as preferred or exclusive jobbers. These so-called exclusive jobbers also acted as sales agents for Parker and furnished service to manufacturer customers in the territory allotted to them as a substitute for the services rendered by Parker. For this service, the jobbers were paid a commission. As soon as a manufacturer had enough work to justify the installation of his own equipment, he was encouraged to do so. As a result of this policy, the amount of business transacted by the exclusive jobber was always only a small part of Parker’s total business.

13. In order to carry on a jobbing business, it is necessary that the jobber make a substantial investment in equipment and employ technically trained operators. To do a successful jobbing business, a jobber must be prepared to handle many different kinds of work, which requires a great deal of skill and more diversified equipment than is necessary in the case of the manufacturer processing his specific product. It would be impossible to induce parties to equip plants to do a jobbing business unless Parker agreed not to license other jobbers in the territory specifically allotted to the first jobber secured. In order to be fair with these jobbers, it has been Parker’s custom not to license any more jobbers than could be reasonably successful with the amount of work available. Before a new jobber’s license was granted in a territory that had already been allotted, it was Parker’s custom to consult with the licensed jobber therein and give him an opportunity to demonstrate that he could take care of all the business available. This policy was carried out not to restrict trade in Parker’s products, but rather to increase it by insuring the successful jobbing of all available work. Although Parker has consulted with these jobbers relative to costs and prices, it has never conspired with any of these jobbers to fix prices to be charged for the service or to restrict in any way trade or commerce in the finished articles. None of these preferred jobber agreements had the effect of substantially lessening competition or creating a monopoly beyond the legitimate scope of the monopolies granted under the patent laws. Neither Parker nor any of these licensees ever used any of the patents to restrict trade in any process or material not covered by the patents. These exclusive jobbers have performed a valuable service for Parker in promoting the uses of its products and processes. All of the intervening defendants are so-called preferred or exclusive jobbers.

14. A small number of non-exclusive jobbers were licensed to carry out the Parker processes on substantially the same basis as the manufacturer customers. None of the Parker agreements or dealings with these so-called non-exclusive jobbers tended in any way to restrict trade or commerce or to create a monopoly, but, in fact, had just the opposite effect because these licensees were at all times free to use any competing process developed at any time.

15. The officers in charge of company policies own only a small part of its outstanding stock. Parker has not maintained a rigid price policy, but has adjusted its prices to conform to changing conditions. As its business increased, it reduced its prices and, hence, the cost of treating met-tals. There is no evidence that it has ever earned excessive profits.

The standard measurement used for computing prices paid by Parker customers was the quantity of material used. It made no difference to a licensee under a Parker patent whether it paid a licensee fee on the basis of amount of work processed or whether it bought patented compositions from Parker at a price that included a royalty. Obviously, it is simpler both for Parker and the customer to figure royalty on the basis of quantity of material used than on the basis of amount of work processed. As a practical matter, the result would be substantially the same.

16. Prior to 1932, American Chemical Paint Company, a Pennsylvania corporation, was engaged principally in furnishing materials for cleaning metal surfaces prior to painting or other finishing. In 1932, it started furnishing materials for phosphate coating, and almost immediately came into conflict with Parker. Frequent controversies arose between the two companies over claims that American was infringing Parker patents. Parker threatened to bring suit against American and some of its customers if the practices of American did not cease. Attempt was made to adjust the difference between the two companies by a cross license of the patents or a merger of the two companies, or the purchase by Parker from American of its rust-proofing patents. None of these proposals was carried out and American continued to be an active competitor of Parker up to October, 1940, when the agreement hereafter referred to was entered into.

17. In February, 1937, Parker brought suit against the Norge Division of the Borg-Warner Corporation, in the District Court for the Western District of Michigan ; Norge being one of American’s customers or licensees. .American was not a party to this suit. That court held that the American process carried on by Norge did not infringe Parker’s patent in suit, the Tanner & Lodeesen ’726 patent. An appeal was taken from this judgment to the Circuit Court of Appeals.

In May, 1937, American brought suit against Parker in the District Court of the Eastern District of Michigan under the Declaratory Judgment Act, in which it sought a judgment that this same ’726 Parker patent was invalid and not infringed by American’s processes and materials. Parker filed a counterclaim in which it alleged that the American processes and materials infringed this patent. This court entered a judgment holding Parker’s patent valid and infringed by American and ordered an injunction and an accounting. See, American Chemical Paint Co. v. Parker Rust-Proof Co., 32 F.Supp. 908. American took an appeal to the Circuit Court of Appeals from this judgment. An agreement was entered into between the two companies which permitted American to continue servicing and supplying the alleged infringing processes to certain of its then existing customers, pending the determination of this appeal.

18. In December, 1939, James H. Gravel, President of American, died. Mr. Gravel had almost complete control of American and owned substantially all of its stock. Under his will, the control of American passed to a number of its former employees who had been active in the company for many years. In order to settle Mr. Gravel’s estate it became necessary to raise cash to pay taxes. Negotiations were entered into between Parker and the new officers of American, in which it was sought to settle the differences between the two companies, including the litigation heretofore referred to. In October, 1940, while the two appeals were pending in the Circuit Court of Appeals, an agreement was consummated. By the terms of this agreement, American gave Parker an exclusive license on all of its patents and patent applications relating to rust-proofing for a period of ten years for the sum of $750,000, payable in annual installments, with the provision that the license might be extended for the life of the patents upon payment of an additional $50,-000 at the end of the ten year period. This arrangement, which was in effect a sale, was carried out in this manner to reduce American’s income tax. The agreement also provided that American would assign to Parker any improvement that it invented or discovered in connection with the processes covered by the patents during the period of the agreement. Parker in turn agreed to purchase from American all materials that it had on hand for servicing the patents acquired, and it agreed to supply American’s customers with the materials necessary for carrying out the processes which American was under obligation to provide. At the same time, Parker entered into an agreement with all of the principal officers and research assistants of American that these individuals would assign to Parker any inventions they might make in this field during the life of the agreement.

The two suits pending on appeal in the Circuit Court of Appeals were terminated under formal stipulations, the Norge judgment in the Western District of Michigan being reversed on appeal and then dismissed without prejudice, and the Parker judgment in the Eastern District of Michigan being affirmed on appeal and other pending infringements suits were dismissed. As a result, American is permanently enjoined from carrying on the principal process that it was promoting prior to the entry of these two judgments.

In order to induce the Norge Division of the Borg-Warner Corporation to consent to the reversal of the favorable judgment it had secured in the Western District of Michigan, American agreed to supply that company with materials for a period of five years at a guaranteed price. Parker in turn agreed to furnish American with the materials necessary to carry out this agreement and agreed to reimburse American for any loss it might sustain because of this agreement to the extent of $1250 per year.

American also granted to Parker the sole and exclusive right to the use of trade marks owned and formerly used by American in connection with its rust-proofing activities.

American also agreed that if it made any new inventions not specified in the agreement, which might make Parker’s processes obsolete, Parker should have the first option either to purchase the patents issued for such inventions or to acquire a license thereunder. Neither American nor any of its officers was to receive any compensation for improvements on the patents under which Parker had the exclusive license and, therefore, there was no reason why either American or its employees named should continue in their research because they would not be compensated for their time, expenditures or creations made in connection with such investigations.

19. The 1940 agreement between American and Parker was intended to eliminate American as a competitor and it had that result. It may be that the officers of the two companies did not consciously set out to restrain trade and stifle competition, but this is the effect of the agreement. Neither American nor any of the individual employees named in the agreement have made any improvements on the patents or any new inventions in this field. There is no reason to expect that they will, as they are under obligation to turn them over to Parker. Parker sought to justify this agreement on the ground that it was merely the purchase of patent rights, the settlement of litigation and the purchase of a business. This agreement cannot be justified on these grounds as it went beyond the achievement of these legal ends.

All of the litigation carried on by Parker for the protection of its patent rights, including the litigation against American and Curtin-Howe, was carried on in good faith. The patent laws afforded Parker ample protection against infringement. Patents may be purchased like any other property, but the mere fact that patents are involved cannot justify a contract which has the object or effect of restraining trade or stifling competition. There was no direct relationship between the price paid by American and the value of the patents and other rights which it acquired by this agreement. The primary purpose for entering into this agreement was to eliminate American as a competitor in the rust-proofing field and to terminate its activities in the field of research looking toward the improvement of such processes. Because of the particular kind of business carried on by these two companies, this agreement had the effect of substantially lessening competition in that particular field.

20. The Curtin-Howe Corporation was first organized in New York in 1927. At the beginning, it was solely engaged in promoting the use of wood-preserving inventions developed by Dr. Leo P. Curtin, who is a competent research chemist. In 1932, he assigned to the corporation a patent he had secured for a rust-proofing process. The company started to market this process and immediately Parker claimed that it infringed its patent. Dr. Curtin later made other inventions and received other patents in this field and granted licenses to Curtin-Howe to market these inventions. Almost immediately Parker started patent suits against Curtin-Howe’s customers, and the two companies were engaged in interference proceedings in the patent office with respect to their respective pending patent applications.

Dr. Curtin was principal owner of the company and originally controlled its policies. This company was never adequately financed and in 1929 its owner sold 51% of its stock to United Chemical, Inc., for the purpose of acquiring additional capital. The new owners of the majority of the Curtin-Howe stock were not anxious to carry on this business and attempted at various times to sell these patents or to grant exclusive licenses thereunder. None of these negotiations was successful and the business in this field continued to operate at a loss. Up to 1940 the company had lost in excess of $100,000 in attempting to promote its processes. There was considerable disagreement between Dr. Curtin and the other owners of Curtin-Howe as to the policies to be carried out by the company. Dr. Curtin was at all times anxious to dispose of the patents owned by him. United Chemical, Inc., was principally engaged in financing business enterprises.

In November, 1940, Parker purchased all of Curtin-Howe’s patent rights in the rustproofing and priming fields for the sum of $225,000. Curtin-Howe thereupon ceased business and the corporation was dissolved. At the same time the purchase agreement was entered into, Parker retained Dr. Cur-tin as a consultant on a three year contract and he immediately went to work for that company. At its termination, this contract was renewed for a period of three years and at the date of the trial, Dr. Curtin was still employed by Parker as a research consultant.

Curtin-Howe never offered any substantial competition to Parker and the purchase of Curtin-Howe patent rights was a legitimate exercise of its rights to purchase. The employment of Dr. Curtin was a legitimate exercise of its right to contract with research chemists and neither agreement was intended to stifle competition. Neither agreement prejudiced the public by unduly restricting or unduly obstructing the course of trade.

Conclusions of Law

1. This is an action arising under the Sherman and Clayton Anti-Trust Acts of the United States, over which this court has jurisdiction. 15 U.S.C.A. §§ 1, 2, 14; 15 U.S.C.A. §§ 4, 25.

2. The fact that a suit is brought under the Anti-Trust Laws does not change the principles which govern the granting of equitable relief. There must be “a definite factual showing of illegality.” Appalachian Coals, Inc., v. United States, 288 U.S. 344. 53 S.Ct. 471, 480, 77 L.Ed. 825; Standard Oil Company v. United States, 283 U.S. 163, 179, 51 S.Ct. 421, 75 L.Ed. 926.

3. The Anti-Trust Laws were not enacted for the purpose of forcing every type of business enterprise into a common mold. Each case arising under these acts must be considered in the light of the particular facts involved. Only such contracts and combinations are within the prohibition of the Acts as would by reason of intent or inherent nature prejudice the public interest by unduly restricting or unduly obstructing the course of interstate trade. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas.1912D, 734; United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663.

4. The general objectives of the Patent Laws and the Anti-Trust Laws are the same. Both are intended to prevent unfair competition. The inventor is protected by the Patent Laws in his exclusive right to the products of his skill and energy. By affording this protection to the owner of an invention, Patent Laws make it possible for the patentee to practice the teachings of the patent without the danger of having those less worthy deprive him of the benefits of his toil and ingenuity. The Anti-Trust Laws were enacted to prevent competitors from contracting or combining in such a way as to put artificial handicaps in the way of intelligent and energefic competitors, who would thus be deprived of the opportunity to serve the public interest.

5. Under the common law, courts protect the owner of a secret process. Du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016; Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752. It would be contrary to the American sense of justice to induce an inventor to make a public disclosure of his invention and then to deprive him of the benefits of his invention by unduly restricting his rights to make use of it.

The Anti-Trust Laws do not include nor embrace contracts entered into in a legitimate exercise of rights conferred under the Patent Laws. Becton, Dickinson & Co. v. Eisele & Co., 6 Cir., 86 F.2d 267; E. Bement & Sons v. National Harrow Company, 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058.

6. The owner of a patent has a right to fix royalties; to prescribe sales prices; to limit the quantity of articles or the percentage of the whole output which the licensee may manufacture, use or sell; to limit the territory in which the licensee may operate under the patent; to prescribe the purpose or the field for which the licensee can utilize the invention; to determine the number of licensees and to select at his discretion those to whom licenses shall be issued. He may enter into any kind of a contract to protect these rights so long as he does not attach a condition to the contract which will have the effect of enlarging his monopoly beyond that covered by the patent. Ethyl Gasoline Corporation v. United States, 309 U.S. 436, 60 S.Ct. 618, 84 L.Ed. 852.

7. In the absence of any purpose to create or maintain a monopoly, the AntiTrust Laws do not restrict the long recognized right of a manufacturer freely to exercise his own independent discretion as to the parties with whom he will deal and to announce in advance the circumstances under which he will refuse to sell. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, 7 A.L.R. 443.

8. Some of the terms in some of the sales agreements issued by Parker considered separately from the historical background and without a full consideration of the particular type of business involved might appear to be an attempt on the part of Parker to prevent the use by a licensee of the raw material purchased from a competitor. These agreements were not intended for that purpose and were never so used. These provisions in the sales agreements were reasonably necessary to protect Parker’s rights under its patents and they did not substantially lessen competition nor tend to create a monopoly. They were not tying clauses within the meaning given to that term in International Business Machines Corp. v. United States, 298 U.S. 131, 56 S.Ct. 701, 80 L.Ed. 1085.

9. The courts furnish the owner with a remedy for the violation of his patent rights. There is no justification for permitting a patent owner to enter into restrictive agreements to extend those rights. The judgment entered in the District Court for the Eastern District of Michigan, referred to in Finding No. 18, was all that Parker needed to prevent American from infringing on its patent rights. If this judgment was erroneous, it could have been reversed on appeal, and the rights of both parties fully settled. This was different than the situation presented in the case of United States v. United Shoe Machinery Company, 247 U.S. 32, 38 S.Ct. 473, 62 L.Ed. 968, relied upon by Parker to justify the agreement with American. In the United Shoe Machinery Company case, the court found that the patents involved were so inter-related that neither company could get the full benefits of the patents without the consent of the other. The “deadlock” referred to in the United Shoe Machinery case did not exist in the American-Parker case and the American-Parker agreement cannot be justified on that ground. The primary purpose for entering into this contract was to eliminate present competition and prevent future competition. The AntiTrust Acts condemn a contract entered into for the purpose of eliminating competition that exists as well as a contract preventing the development of future competition. The contract entered into with American Chemical Paint Company and the officers named is illegal and Parker is not entitled to any of the benefits of that illegal agreement.

10. The agreement entered into between Parker and Curtin-Howe Corporation was a legitimate exercise of the right to sell and purchase patent property, and it was not entered into for the purpose of restraining trade or for the purpose of creating or maintaining a monopoly. It was not the type of agreement condemned by the Anti-Trust Acts.

11. The Government has failed to prove that it is entitled to any relief sought except a judgment declaring the agreement entered into between Parker and American and the officers of American therein named to be illegal and enjoining Parker from enforcing any of the rights -secured under the patents covered by that agreement. A judgment according to these findings shall be submitted for entry May 28, 1945.


author: WYZANSKI, District Judge.

text:
    STANDARD OIL CO. (NEW JERSEY) et al. v. MARKHAM.
    District Court, S. D. New York.
    June 1, 1945.
    On Petition for Reconsideration June 6, 1945.

      John W. Davis and Theodore S. Kenyon, both of New York City (Kenyon & Kenyon, of New York City, on the brief), for plaintiffs.
    Philip W. Amram, Sp. Asst. to Atty. Gen. (Herbert Wechsler, Asst. Atty. Gen., and Harry Le Roy Jones, David R. Mason, and Roy C. Frank, Sp. Assts. to Atty. Gen., on the brief), for defendant.
   WYZANSKI, District Judge.

This is an action under Sec. 9(a) of the Trading With the Enemy Act, 50 U.S.C.A. Appendix § 9(a). Standard Oil Company and three associated companies have brought this action to recover from the Alien Property Custodian thousands of United States patents and certain shares of stock in various corporations. Plaintiffs allege that they are the owners of these assets; that they acquired them, with a single exception, from I. G. Farbenin-dustrie by outright purchase; that the Custodian vested these assets in himself by two vesting orders; and that plaintiffs are entitled to have these assets returned.

One of several defenses asserted by the Custodian is that plaintiffs are not entitled to most of these assets because they were acquired by plaintiffs by agreements which violated the anti-trust laws of the United States. To raise this defense the Custodian has made allegations in paragraph V of his answer, has made an offer in evidence of a letter heretofore called Government Serial No. 149 written by Mr. Teagle to Mr. Riedeman, marked Exhibit D-62 for identification, and is prepared to make other offers of evidence. Plaintiffs have seasonably objected to the introduction of this evidence on the ground it is irrelevant.

This type of defense and offers of this type of evidence are novelties, in proceedings under Sec. 9(a) of the Trading With the Enemy Act. So far as research of counsel and of the court can discover, it has not previously been decided whether when an American corporation seeks to recover from the Alien Property Custodian property of which it claims ownership the corporation should be denied relief on the ground that in acquiring or using that property it violated the anti-trust laws of the United States.

In considering the validity of this defense the first point is to observe the inevitable breadth of the Custodian’s contention. If the Custodian is correct in his contention that relief should be denied where the claimed property was acquired in violation of the federal anti-trust laws, it would seem that relief should also be denied where the claimed property was acquired in violation of any other federal law, or any state law, or any foreign law. There is no hierarchy of laws in which the anti-trust laws are given peculiarly high rank. And the anti-trust laws, as the Supreme Court has recently recognized in Hartford-Empire Co. v. United States, 323 U.S. 386, 415, 65 S.Ct. 373, have no provision that patents used in violation of these laws shall be forfeited. Moreover, if the custodian is correct in his contention that relief should be denied where he is the person charged with a seizure unauthorized by law, it would seem that relief should also be denied where the person charged with the wrongful taking is a common thief, — at least if the suit where the issue arises is because of the nature of the property involved or because of the nature of the relief sought in an equity suit. The Custodian has no more statutory interest than any other person in the enforcement of the anti-trust laws.

Indeed if the Custodian’s defense under the anti-trust laws were to prevail here, it is difficult to see why, aside from the restraints imposed by self-discipline and a consciousness of the risk of impeachment and removal, the Custodian would not be at liberty to sequester and keep all property in the United States acquired in violation of law, regardless of whether there had been the slightest connection between the owner of the property and the enemy. This would mean that whenever property was acquired in violation of any law the offender ran the risk of the penalties prescribed by that law and also the risk of the unprescribed forfeiture of the property at the whim of an administrative official.

The unsoundness of the Custodian’s defense under the anti-trust laws is revealed not alone by the breadth of its necessary implications, but by cases such as Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 549-551, 22 S.Ct. 431, 46 L.Ed. 679, and A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 253, 45 S.Ct. 300, 69 L.Ed. 597. These cases hold that where a person engaged in and acting pursuant to a conspiracy to violate the anti-trust laws makes a contract which is not inherently invalid he can enforce that contract against the other party. Similarly, where a person has acquired property by a contract in restraint of trade he can recover the property from a wrongful taker. California Cured Fruit Ass’n v. Stelling et al., 141 Cal. 713, 75 P. 320, 322. These authorities illustrate the rule, that a party to a previous illegal contract, agreement or combination with others, restraining competition in that business is not deprived of legal protection of his property in that business. American Law Institute, Restatement of Contracts Sec. 519; Williston, Contracts, Rev.Ed., Sec. 1661. Such a rule embodies the broad principle that while one who has acquired property in violation of law is subject to whatever personal penalties and infirmities of title that law provides, he is not an outlaw and his title to property is not subject to collateral attack. See, Bowmakers, Ld., v. Barnet Instruments, Ld. [1945] 1 K.B. 65, 71 (C.A.).

The case at bar is quite unlike Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165, or Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486. Those cases hold that where two parties make a contract which is itself unlawful under the anti-trust laws a court will not enforce or grant a remedy upon that contract. In refusing to assist parties to consummate their unlawful bargains the court is obedient to the direct command of the law; it is not entering upon a collateral inquiry or attaching to prior unlawful conduct penalties unauthorized by statute. The distinction is too familiar to require elaboration. See A. B. Small Co. v. Lamborn & Co., supra; American Law Institute, Restatement of Contracts, Secs. 518, 519, 598, 607.

Although the Custodian places no reliance on Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363, perhaps a word should be said about its doctrine, particularly since it is in square conflict with the second illustration given for Sec. 519 of the Restatement of Contracts, cited two paragraphs above. As explained in Hartford-Empire Co. v. United States, 323 U.S. 386, 415, 416, 65 S.Ct. 373, the'Morton Salt Co. case stands for the proposition that so long as a patent owner is using his patent in violation of the anti-trust' laws he cannot restrain infringement of it by others. In the instant case plaintiffs, whatever may have been their past conduct, are not currently using the patents here involved in violation of the anti-trust laws. For some time the patents have been vested in the Custodian. Moreover, their use has been circumscribed for three years by the stringent terms of an outstanding decree of the United States District Court for the District of New Jersey. United States v. Standard Oil Co. Civil No. 2091 Thus the doctrine of the Morton Salt Co. case which is limited to current violations of the anti-trust laws by the patentee does not apply. Furthermore it would be a bold interpretation which would carry the doctrine of that case beyond giving an infringer a defense against a patentee. It is hard to suppose that the Supreme Court meant to indicate that anyone may without accountability to a patentee take from him a patent he is using in violation of the anti-trust laws. See Hartford Empire Company v. United States, supra.

In summary, I conclude that it is not open to the Alien Property Custodian to defend his seizure of the patents and shares of stock involved in this case on the ground that plaintiffs have acquired them by violating the anti-trust laws. To allow such a defense would permit a collateral attack contrary to accepted principles of contract and property law, would add to the anti-trust laws a sanction not authorized by Congress, and would establish a precedent whereby any. person, whether or not a public officer, could retain with impunity property which he had unlawfully seized from an owner who had happened to acquire the property in violation of some national or local law.

Objection sustained.

Petition for Reconsideration

The Custodian suggests that my memorandum of June 1, 1945, does not squarely meet all his contentions as to the admissibility of evidence tending to show that the plaintiffs have violated the anti-trust laws.

The Custodian asks me to assume that on the basis of the testimony I shall eventually find that on the dates the Custodian vested in himself the patents, corporate shares and other'assets here involved, (1) that legal title to some of those assets was in plaintiffs; (2) that, however, the principal beneficial ownership to such assets was in I. G. Farbenindustrie, and (3) that plaintiffs’ rights were merely to share in the managing or licensing of those assets and to share in the income, or royalties from them. If I should make these findings the Custodian says that I might normally enter a decree establishing licensing and royalty rights in the plaintiffs. But the Custodian urges that I ought not to enter such a decree because the plaintiffs’ rights are, in his view and in his terminology, “future executory contractual interests” springing out of agreements which were in violation of the anti-trust laws. Were my decree to establish such rights, the Custodian says that this Court would be enforcing an agreement in violation of law and this Court would be lending its aid to a restraint of trade.

There are at least two answers to the Custodian’s contention.

First, even in the situation assumed by the Custodian, unlike the situation Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. 165, this Court would not be enforcing the unexecuted part of an unlawful bargain at the suit of one party against the other party. This Court would be merely declaring that there existed a certain status between two parties in property seized by an outsider. It is to be remembered that even on the Custodian’s assumptions, this suit could not be converted into a proceeding sounding in contract to recover considerations which I. G. Farbenindustrie had agreed to transfer to plaintiffs in the future. This suit is primarily a proceeding by plaintiffs to recover assets which they claim I. G. Farbenindustrie had already transferred to plaintiffs in the past, and is perhaps alternatively a proceeding to have a declaration of the status of plaintiffs’ property rights in assets formerly owed by I. G. Farbenindustrie and now owned by the Custodian. When a question of the status of property rights is at issue an inquiry as to whether the status was acquired in violation of a statute is irrelevant and collateral unless the statute otherwise provides. The reasons are given in my memorandum of June 1, 1945 and are supported by Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 592-595, 41 S.Ct. 209, 65 L.Ed. 425; California Cured Fruit Ass’n v. Stelling, 141 Cal. 713, 75 P. 320, 322; Bowmakers, Ld. v. Barnet Instruments, Ld. [1945] 1 K.B. 65, 71 (C.A.); Am.L.Inst., Restatement of Contracts, § 519.

Second, there is no risk in the present case that any decree by this Court establishing rights in the plaintiffs in the assets here involved would aid in the current carrying out of an unlawful plan. The plaintiffs are already operating under the decree of the United States District Court for New Jersey. They may use their rights in these patents, corporate shares and other assets only as that decree provides. No one suggests that that decree is an inadequate protection against future use of these assets in violation of the anti-trust laws. There is no merit in the Custodian’s reply that the basic agreements were illegal ab initio and therefore the rights existing thereunder cannot be exercised. To refuse to recognize these rights when there is now no prospect of their future use in violation of law would be a confiscation of these rights on account of past misconduct and would also involve the imposition of a sanction not authorized by the anti-trust laws or by usual principles of equitable relief.

Independently of his other contention, the Custodian has also advanced the suggestion that if I. G. Farbenindustrie made transfers of titles or interests to plaintiffs these transfers were in violation of the anti-trust laws and therefore the transferor, I. G. Farbenindustrie, and its successor, the Custodian, have a right of rescission. This suggestion is in conflict with Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 592-595, 41 S.Ct. 209, 65 L.Ed. 425. There it was held that the shareholders of the Alice Gold & Silver Company which was charged with having made a sale of property to the Anaconda Copper Mining Company in pursuit of a purpose of both companies to violate the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, could not have that sale set aside. As Mr. Justice Clarke said at page 593 of 254 U.S., at page 210 of 41 S.Ct., 65 L.Ed. 425, “It is now the settled law that the remedies provided by the AntiTrust Act of 1890 * * * for enforcing the rights created by it are exclusive, and therefore, looking only to that act, a suit, such as we have here, would not now be entertained.” The reasoning of the Court makes it plain that there is no right of rescission by a seller, or one in his shoes, against a purchaser who in purchasing violated the anti-trust laws, regardless of whether the seller was also violating those laws.

My ruling of June 1, 1945, sustaining plaintiffs’ objection, stands.

       No opinion for publication.


author: KENNERLY, District Judge.

text:
    FOWLER v. SHEPPEARD, Deputy Com’r, U. S. Employees’ Compensation Commission, et al.
    Civil Action No. 323.
    District Court, S. D. Texas, Galveston Division.
    April 19, 1945.
    Mandell & Wright, of Houston, Tex. (by Bliss Daffan, of Houston, Tex.), for plaintiff.
    Baker, Botts, Andrews & Wharton, of Houston, Tex. (by T. E. Mosheim, of Houston, Tex.), Brian S. Odem, U. S. Atty., and C. H. Sherman, Asst. U. S. Atty., both of Houston, Tex., for defendants.
   KENNERLY, District Judge.

This is a proceeding under the Longshoremen’s and Harbor Workers’ Compensation Act, Section 901 et seq., Title 33 U.S. C.A., and under Section 10 thereof, Section 910, Title 33 U.S.C.A., to review an award of compensation made by a Deputy Commissioner to plaintiff, Jay Fowler, on August 17, 1944. In making such award the Deputy Commissioner found that on January 15, 1943, plaintiff was an employee in the service of the Todd Galveston Dry Docks, Inc., in Galveston, Texas, and that on such date, he was injured at a time and under circumstances that brought his case within such Act. The sole and only finding by the Deputy Commissioner which is sought to be reviewed here is as follows:

“That from January 15, 1942, to January 15, 1943, Jay Fowler earned $2,467.62; that on January 15, 1943, Jay Fowler was earning an average weekly wage of $47.46.”

Plaintiff says that there is no evidence in the Record to support the finding that he earned only $2,467.62 from January 15, 1942, to January 15, 1943, and the finding that on January 15, 1943, he was earning only an average weekly wage of $47.46.

The case has been submitted on the Stenographic Record made before the Deputy Commissioner.

1. Section 910, Title 33 U.S.C.A., sets forth the manner in which the average weekly wage of an injured employee is to be determined. It is as follows:

“Sec. 910. Determination of pay. Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:
“(a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.
“(b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.
“(c) If either of the foregoing methods of arriving at the annual average earnings of an injured employee can not reasonably and fairly be applied, such annual earnings shall be such sum as having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury.
“(d) The average weekly wages of an employee shall be one fifty-second part of his average annual earnings.
“(e) If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.”

I find in the Record this stipulation:

“The Deputy Commissioner: Have you worked out a stipulation on the wage matter?
“Mr. Mandell: Yes, sir.
“Stipulation
“It is stipulated that the claimant earned $2,609.82 during the year immediately previous to the injury in Maritime employment from April 3, 1942 to June 12, 1942; then from August 18, 1942 to January 15, 1943.
“The Deputy Commissioner: Is that correct, Mr. Harvey?
* Mr. Harvey: That is correct.
“The Deputy Commissioner: Very well.”

I construe such stipulation to mean that plaintiff at the time of the injury had not been working in such employment for the same or another employer during substantially the whole of the year immediately preceding the injury, but for only about seven months, during which time he earned $2609.82, and that Subdivision (a) of Section 910 is, therefore, not applicable.

2. I find in the Record this additional stipulation:

“Mr. Mandell: It is further stipulated that other employees doing the same type of work for the same employer and who had been employed as follows:
“One Jack Romero, from February 17, 1942, to December 31, 1942, earned $4,686.29 and one Axel A. Lasneske, who worked from January 15, 1942, to January 15, 1943, earned $5,313.14. These two employees were engaged in the same type of work as the claimant, working for the same employer.
“The Deputy Commissioner: Is there any objection to that?
“Mr. Harvey: No objection.
“The Deputy Commissioner: All right, Now, proceed with the testimony.”

This stipulation of the earnings of other employees would, under Subdivision (b) of Section 910, entitle the plaintiff to a finding of annual earnings of much, more than $2,467.62, and of more than $47.46 as his average weekly wage on January 15, 1943.

I have examined the Record, and the only other reference to plaintiff’s earnings is a stipulation that he earned $2,467.62 during the year 1943. Eleven and one-half months of this period would be after the injury. The Record shows he worked very little after the injury in 1943.

3. It is, therefore, perfectly clear that the Deputy Commissioner’s finding that from January 15, 1942, to January 15, 1943, plaintiff earned $2,467.62, and that on January 15, 1943, he was earning an average weekly wage of $47.46 is not supported by any Stipulation or Evidence in the Record.

It follows that the matter as to the finding complained of should be sent back to the Deputy Commissioner, with directions to, after due notice to interested parties, proceed under Section 910 to again hear, inquire into, and determine the matter of the applicable average weekly wage of plaintiff.

Let an order be drawn and presented accordingly.


author: BROWN, District Judge.

text:
    HOEPFNER v. NORTHERN PAC. RY. CO.
    No. 153.
    District Court, D. Montana, Butte Division.
    July 13, 1945.
    Wellington D. Rankin and Arthur P. Acher, both of Helena, Mont., for plaintiff.
    Corette & Corette and Kendrick Smith, all of Butte, Mont., for defendant.
   BROWN, District Judge.

This action was commenced by the Ad-ministratrix of the Estate of Mathias Hoepfner, deceased, against the defendant to recover of it damages for injuries which it is alleged the deceased received while in the employ of the defendant, he having survived his injuries for an appreciable length of time, and to recover on behalf of the widow and children the damage they sustained by reason of his death as the result of the negligence.

The action was brought in the State court. The complaint contains two causes of action. In the first cause of action it is alleged that at the time Hoepfner suffered the injuries the defendant was engaged in interstate commerce and that he, Hoepfner, was employed by the defendant in interstate commerce, thus the first cause of action is bottomed on the Federal Employers’ Liability Act, Title 45 U.S.C.A., §§ 51-60.

The second cause of action is identical in allegations with the first except that it is not alleged in the second cause of action that the defendant was engaged in interstate commerce, or that Hoepfner was employed by it in interstate commerce, and thus that cause of action is bottomed upon the State statutes, Sections 6605-6607, Revised Codes of Montana, 1935. The State statute was passed in 1911 and is modeled upon the Federal Employers’ Liability Act.

The cause was removed to this court from the State court upon the petition of the defendant. The plaintiff moves to remand the case to the State court, asserting that it is one under the Federal Employers’ Liability Act and thus not removable because of the provisions of Section 56 of Title 45 U.S.C.A., which in that respect provides: “ * * * and no case arising under this chapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.” Defendant resists the motion, contending that as there is a cause of action in the complaint bottomed upon the State law, joined with a cause of action bottomed upon the Federal Employers’ Liability Act, the statute with reference to removal, contained in the latter act, has no application and the case made under the Federal Employers’ Liability Act is properly here. There is no contention made, as there could not be, that the first cause of action does not set out a case under the Federal Employers’ Liability Act, complete within itself and without regard to anything set out in the second cause of action, and there is no doubt that if the facts alleged in the first cause of action are true, that upon the trial of the cause the result would be controlled by the provisions of the Federal Employers’ Liability Act without regard to any law of the State. Seaboard Air Line R. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475. The record here discloses that the petition for removal of the cause filed in the State court was based entirely upon the fact that there was and is a diversity of citizenship between the plaintiff and the defendant and the amount in controversy in the action exceeds the sum of $3000.00, exclusive of interest and costs.

Section 56, on its face, is apparently a prohibition against the removal of an action brought under the Federal Employers’ Liability Act from the State court to a Federal court. The Supreme Court, in Kansas City Southern R. Co. v. Leslie, Administrator of Old, 238 U.S. 599, 35 S.Ct. 844, 845, 59 L.Ed. 1478, said:

“The language of both amendment and Judicial Code, we think, clearly inhibits removal of a cause arising under the act from a state court upon the sole ground of diversity of citizenship.”

That was the sole ground set forth in the petition here. In Great Northern R. Co. v. Alexander, Administrator of Hall, 246 U.S. 276, 38 S.Ct. 237, 239, 62 L.Ed. 713, the Supreme Court said:

“The allegation of the complaint that the deceased was employed in interstate commerce when injured, brought the case within the scope of the Federal Employers’ Liability Act * * * and it would have been removable either for diversity of citizenship or as a case arising under a law of the United States, except for the prohibition against removal contained in the amendment to the act, approved April 5, 1910 (36 Stat.L. 291, c. 143). B'ut this allegation rendered the case, at the time it was commenced, clearly not, removable on either ground.”

In Southern R. Co. v. Lloyd, 239 U.S. 496, 36 S.Ct. 210, 212, 60 L.Ed. 402, an action was brought under the Federal Employers’ Liability Act. One of the railroad companies was joined upon the theory that under the law of North Carolina it was liable upon the cause of action asserted by the plaintiff. In denying the contention of the defendant,, that because of such joinder of one of the defendants under the local law the case was removable, the Supreme Court said:

“The question of the effect of this provision upon the right to remove a case because of diversity of citizenship, since the passage of the act referred to, was before this court and passed upon in Kansas City Southern R. v. Leslie, 238 U.S. 599, 35 S.Ct. 844, 59 L.Ed. 1478. It was therein held that there was no authority to remove such action from the state court to the Federal court because of diversity of citizenship. Nor did the alleged fraudulent joinder of the local defendant in the state court give such right.”

So far as I am able to discover from my search of the decisions of the Supreme Court, it has consistently refused to sustain any contention made before it that there are any exceptions to the prohibition of removability set out in the statute, or that a case made under the Federal Employers’ Liability Act in the State court may, for any cause, be properly removed to the Federal court. While I am unable to find, in my research, any decision of the Supreme Court wherein it had before it the question of the removability of a case made under the Federal Employers’ Liability Act, coupled with a count or cause of action under the State law, nevertheless I am of the opinion that the decisions of the Supreme Court, to the effect that a case made under the Federal Employers’ Liability Act cannot be removed from the State court to the Federal court solely by reason of diversity of citizenship, or ás a case arising under the laws of the United States, or because a defendant is joined by reason of the provisions of the state law, establish guiding principles that control in the proper solution of the instant case.

The defendant cites and relies upon the decision of the Circuit Court of Appeals of the Eighth Circuit in Jacobson v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 8 Cir., 66 F.2d 688. In that case a cause of action was stated in the complaint, based upon the Federal Employers’ Liability Act and another cause of action based upon a State statute. The Circuit Court of Appeals held the case properly removable to the Federal Court and the case is therefore directly in point.

The Circuit Court of Appeals, in rendering its opinion, quotes from the opinion of Judge Van Valkenburgh in Strother v. Union Pacific R. Co., D.C., 220 F. 731, 733, as follows:

“If a cause of action arising under the federal act is coupled with one arising under a state statute or at common law, stated in the alternative in separate counts, the plaintiff preserving the right, under recognized rules of local procedure, to make his election and avail himself of either at the close of the evidence, the right of removal is presented more baldly at the threshold of the case. There is present at the same time a case arising under the federal act, and therefore, standing alone, not removable, and one not arising under that act, and therefore, the citizenship being diverse, admittedly susceptible of being removed. Must the defendant await the action of the plaintiff at the close of the evidence before claiming the right, and, if so, is his relief then clear and complete? The Supreme Court has thus far refrained from settling such procedure, although it has intimated that the defendant should not necessarily he deprived of relief.
“It rests with plaintiff to determine whether he shall state a cause of action solely under the Employers’ Liability Act, and therefore incapable of being removed, or whether he may unite with it, in the alternative, a cause of action that may be removed. If he adopts the latter course, does he not subject himself to the exercise of all the rights which a defendant may legitimately claim? Beyond question both causes of action are cognizable in the federal court, whether originally brought there or removed by consent. The provision against removal is a privilege granted to the plaintiff, which he may waive. If a cause of action containing all the elements of removability be joined with a count stating a cause of action not originally cognizable in the federal court, nevertheless the defendant may remove the former cause of action, and this will carry the entire case with it.”

From the opinion it seems that Judge Van Valkenburgh and the Circuit Court of Appeals were strongly influenced because of the fact that under rules of local procedure the plaintiff at the close of the evidence had a right to elect whether he would proceed under the State law or under the Federal Act. There is no such right of election given to the plaintiff under such circumstances in Montana. The right of a plaintiff, employed by a railroad engaged in interstate commerce, to invoke the Federal Act depends upon whether he was or was not himself employed in interstate commerce by the railroad, and whether he was so employed in interstate commerce is either entirely a question of fact or a question of mixed law and fact. If the fact is that the plaintiff was employed in interstate commerce, the plaintiff then does not have any right to elect whether he will proceed under the Federal Act or the State law, but the plaintiff must proceed under the Federal law entirely, whether he desires to do so or not. His rights and the liability of the defendant are determinable only by that act. The law of the State has no application and is of no moment whatsoever in the determination of the lawsuit, for if the conditions exist that bring the case stated within the Federal Employers’ Liability Act, then the act itself becomes exclusive, the acts of Congress control and the laws of the State, insofar as they purport to cover the same field, are superseded. Second Employers’ Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44.

If the fact is that a plaintiff is actually employed in interstate commerce, there could be no question about the right of the defendant to require that the case be tried under the laws established by the Federal Employers’ Liability Act, irrespective of the desire of the plaintiff. Defendant could do this by in its answer admitting the allegation of the plaintiff’s cause of action that the railroad was éngaged in interstate commerce and the plaintiff employed in it by the railroad, and such being the state of the pleadings the second cause of action would serve no purpose, it would not be submitted to the jury and the State law would have no application. If the defendant did not desire to admit those allegations in its answer, certainly the fact could be developed by it in the evidence and during the progress of the trial.

It was also thought by Judge Van Valken-burgh that the right of non-removability is a privilege granted to the plaintiff that he might waive. The record here is that the plaintiff herself commenced the action in the State court. To me that indicates an intent on the part of the plaintiff to insist on the right rather than to waive it. The plaintiff is here insisting that the case be remanded to the State court. That, to me, imports an intent on the part of the plaintiff to insist on the right rather than to waive it. Thus, if the right under such circumstances is waived, it is not because the plaintiff intentionally desired to waive the right, but because of the fact that he coupled with his case made under the Federal statute a cause of action under the State law.

There is no language in Section 56 of the Federal statute, as I read it, that imports a proviso that the section shall not apply if a cause of action under the State law is coupled with a case made under the Federal statute. Neither is there anything in the history of the Federal statute which brings me to that conclusion. The act is remedial. It was passed for the purpose, among others, of giving to those employed in interstate commerce by a railroad engaged in interstate commerce valuable rights which they did not have under the law as it existed at the time of the passage of the Federal Act, and was passed partly for the purpose of drastically changing the law as it existed. One of the rights that it gave to such an employee was the right of a free and unhampered election as to the forum in which he would try his case, be it Federal or State, irrespective of the desire of the defendant in that regard, and in order that there might be no uncertainty about its intent, Congress said the case so made should not be removed. As the right of removal is statutory, Congress, of course, had the power to change the statute in that regard and thus Congress gave to the employee a substantial and valuable right that the employee had not enjoyed up to that time, and that is the right to select the forum in which to try his case, and at the same time took from the defendant a substantial right it had enjoyed up to that time, viz. the right to remove if the employee elected to chose as the forum the State court, and gave to the State court, insofar as was within its power, all of the jurisdiction to try such a case that a Federal court had were the case there. Plaintiff here exercised that right, but in addition included in her complaint a cause of action under the State law as she had a right to do. Section 9130, Revised Codes of Montana 1935. The statement in both causes of action related to the same transaction, it was against the same defendant and by the employee of that defendant, the acts of negligence were the same, the injuries were the same, the results the same, the damage the same, the difference being the question only as to whether the employee was employed in interstate or intrastate commerce. The stating of a case in different counts or causes of action conform with local pleading and practice. It has the approval of the State courts as it tends to prevent delay in litigation, multiplicity of actions and to assure that cases will be tried and finally determined on their merits rather than on questions of procedure. Such a purpose has the approval of the Federal courts as illustrated by Rule 18a of Rules of Civil Procedure for the District Courts of the United States. While it is true that the plaintiff could obviate a question such as this by confining his complaint entirely to a statement of the case under the Federal Employers’ Liability Act, without joining any other count or cause of action in the complaint, it does not to me necessarily mean that he mus, do so in order to avail himself of the right to keep the case in the State court, and neither does it seem to me that it was the intent of Congress that an employee, to avail himself of this right, must not avail himself of an advantageous right of pleading recognized by the State court given jurisdiction to try the case. As the Act is one remedial in character, it is my belief that it should be so construed as to advance the remedy given by Congress and not to narrow it, as only by so doing can the full intent and purpose of Congress in passing the Act be carried out, and I cannot reach the conclusion that the plaintiff, in joining with his case under the Federal statute a count or cause of action under the State statute, has thereby waived his right to insist that his case, made under the Federal statute, be tried in the State court.

The unquestioned fact here is that a case-made under the Federal Employers’ Liability Act has been removed to this court fronii the State court upon a petition asserting,, as the sole grounds for removal, diversity of citizenship, and that in the face of the statute saying that such a case, when filed, in the State court, shall not be removed and. in face of the decisions of the Supreme Court construing the statute and holding that diversity of citizenship is not grounds-for removal, and such being the record here, I am convinced that the motion to remand is well taken and should be granted.

In reaching this conclusion I am supported, in addition to those authorities cited, by the United States District Court for the Northern District of Oklahoma in Thompson v. St. Louis-San Francisco R. Co., D.C.,. 5 F.Supp. 785, the District Court for the Northern Division of Georgia in Jones v. Southern R. Co., D.C., 236 F. 584, the District Court of the Northern District of Georgia in Reese v. Southern R. Co., D.C., 26 F.2d 367, and the District Court of the Northern Division of New York in Peek v. Boston, etc. R., D.C., 223 F. 448.

It is therefore ordered that the motion to remand this case be and the same hereby is granted, and the case is ordered remanded to the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark from whence it came.

The Clerk is directed to forthwith notify all counsel of record hereof.


author: SMITH, District Judge.

text:
    O’DONNELL v. HAYDEN TRUCK LINES, Inc., et al.
    Civ. A. No. 1385.
    District Court, D. Connecticut.
    July 26, 1945.
    M. Joseph Blumenfeld, of Pelgrift & Blumenfeld, all of Hartford, Conn., for plaintiff.
    Henry J. Lyons, of Pullman & Comley, all of Bridgeport, Conn., for defendants Hayden Truck Lines and Michniak.
    Joseph G. Shapiro, of Bridgeport, Conn., for defendants Lola and John Angrisani.
   SMITH, District Judge.

This is a wrongful death action brought under the Connecticut statutes. The plaintiff, a resident of Rhode Island, sues as administratrix appointed by a Connecticut probate court.

The defendants Angrisani move to dismiss on the ground of lack of diversity, since they are parties defendant resident in Connecticut, contending that the real party in interest is the estate of the decedent, a Connecticut entity.

The motion must be denied. The powers and duties of the administratrix under her appointment make her a real party in interest even though the recoverv is for the ultimate benefit of others. McWilliams v. Dawson, D.C.N.D.Tex.1943, 48 F.Supp. 538, 539; Mecom, Administrator, v. Fitzsimmons Drilling Co., Inc., et al., 1931. 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904; and see Note, 54 Harvard Law Review, 1403-4.

The motion to dismiss is denied.


author: WELSH, District Judge.

text:
    ARCH et al. v. BERSON.
    No. M—1086.
    District Court, E. D. Pennsylvania.
    Oct. 16, 1944.

      Maurice E. Cohen, of Philadelphia, Pa., for plaintiffs.
    Morgan, Lewis & Bockius, Miles W. Kirkpatrick and J. Wesley Oler, all of Philadelphia, Pa., for defendant.
   WELSH, District Judge.

This case presents a very unfortunate phase of the Philadelphia housing situation. The petitioner bought the home in which the defendant lives. The home in which the petitioner now lives is not satisfactory to her or her family. We can sympathize with her in this. Defendant lives in a home that she has occupied for a long period of time. Her husband is a dentist, is in the armed forces of his country, and she has two small children, one of whom, almost an infant, is ill. Her husband, before his enlistment in the service, practiced his profession from their present home. Defendant has sought and is still seeking for housing accommodations reasonably satisfactory under the conditions she now finds herself in. She has not been able to find such housing, as yet.

The public policy involved is apparent to everyone. We take judicial notice of the fact that great numbers of tenants are required to move because their homes have been purchased by others. In this competitive battle for homes the man in the armed service is not the economic equal of the average person in civilian life, by reason of the difference in incomes. The present trends indícate a return to the conditions that existed during the first world war when the order was “Buy or move”. Those of us who are old enough remember very keenly the hardship and injustice of such procedure. If the instant case was between two-civilians this Court could not officially be-concerned with the question of policy. But inasmuch as defendant is in the armed service of his country it does not seem to me that it would be a wise, humane or a patriotic exercise of discretion to order the eviction of this woman in the circumstances, much as we sympathize with the legitimate desire of the plaintiff to obtain possession of the house that she has purchased.

We accordingly decline to order the eviction.


author: DAWKINS, District Judge.

text:
    STRICKER LAND & TIMBER CO., Inc., v. HOGUE et al. HOGUE et al. v. STRICKER LAND & TIMBER CO., Inc.
    Civil Actions Nos. 2486, 734.
    District Court, W. D. Louisiana, Monroe Division.
    Sept. 5, 1945.
    Paul G. Borron, of Baton Rouge, La., A. H. Jones, of Woodville, Miss., Hugh Tullis, of Vidalia, La., and W. H. Thompson, of Monroe, La., for Stricker Land & Timber Co.
    Engle & Laub and W. A. Geisenberger, all of Natchez, Miss., Sholars & Gunby, of Monroe, La., and R. D. Calhoun, of Vida-lia, La., for the Hogues.
   DAWKINS, District Judge.

A new trial having been granted in these •two cases, which were tried on the same ■evidence and briefed together, they have again been submitted on the original record alone. The lengthy briefs on rehearing have been devoted entirely to No. 734, filed under the old system as a bill in equity, while No. 2486 was an action at law, although counsel for plaintiffs in the latter have not conceded that the court was correct. However, inasmuch as the court is still of the opinion that Strieker Land and Timber Co. failed to show the requisite possession under codal provisions, the ruling in the possessory action will not be disturbed.

No. 734.

After a further careful study of the bulky record, including pleadings, testimony, maps and other exhibits, I am led to doubt that complete justice can be done by determining title to the property in question in the present state of the record. There seems little doubt but that, in a proper case, the issue of title may be decided in an action such as this, to remove a cloud therefrom. See Exchange Nat. Bank v. Head, 155 La. 309, 99 So. 272, 273; Parish of Jefferson v. Texas Co., 192 La. 934, 189 So. 580. In the first of these cases, the bank held a mortgage on certain real estate, upon which the owner had subsequently given a mineral lease. Foreclosure proceedings were instituted in the state court, whereupon the mortgagor went into bankruptcy. The bank proved its claim therein and abandoned foreclosure in the state court. The property was sold by the trustee free of all liens and other encumbrances, which were referred to the proceeds, and was bought in by the bank. It then brought in the state court, an action, “the purpose of which is (was) to have the oil and gas lease made by Shields (the former owner) to Head cancelled from the public records.” This suit was met by an exception of no cause of action, based on the proposition that plaintiff had not alleged possession in either party, so as to place it “in the class of any real action known to the law of Louisiana”, as well as on other grounds. In disposing of it the Supreme Court, through Justice Thompson, said:

“1. In answer to this contention, it may be said that the plaintiff’s suit is neither petitory nor possessory. Nor is it an action in jactitation nor an action to try title under Act 30 of 1908. But because the action does not fall under either class designated, it does not follow that the petition fails to disclose a cause of action for want of an allegation in regard to possession. It is true the petition alleges that defendants are slandering plaintiff’s title by claiming an oil lease on the plaintiff’s land; but the facts as set out in detail and the prayer of the petition do not make the action one of jactitation, strictly speaking.
“The relief sought is, not that the defendants be ordered to disclaim title or to make good the asserted title — the peculiar characteristic of an action in slander of title — but the prayer of the petition, responsive to the allegations of the petition, is that the alleged oil and gas lease be ordered cancelled and erased from the public records.
“For the purpose of this phase of the exception, the plaintiff must be regarded as the owner and possessor of the land, and there could be no possession of the land in the defendant under the oil lease separate and distinct from and to the exclusion of the owner of the land.
“But even where the plaintiff, claiming ownership, is not in actual possession of the property, he may yet have his action against a party out of possession for the cancellation of a recorded deed and to remove a cloud on his title.”

The Court also discussed and cited authorities on the legal proposition that there could be no possession by the lessee under a mineral lease, apart from the possession of the owner from whom it had been obtained, which made it both impossible and unnecessary to bring a petitory action against lessee as one claiming possession as owner. It then proceeded to hold that since the mortgage had been given and recorded prior to the lease, the effect of the bankruptcy sale and purchase by the bank was the same as if it had proceeded with foreclosure in the state court and bought the property at sheriff’s sale, correctly concluding that even if the amount paid was sufficient to pay the mortgage claim, the money had been furnished by the mortgagee as the price of the property, title to which it had acquired at the sale. It therefore held that the lease had been wiped off and could be cancelled as a cloud upon plaintiff’s title.

In the present case, plaintiffs do allege possession; that the defendant had attempted to place a cloud upon their title by purchasing claims of former owners of land on the west bank of the Mississippi River, distinct from Glasscock Island upon which the property in dispute here is situated, and placing its deed of record, under which it has attempted to take illegal possession. Ordinarily, either an action in jactitation or one for possession, it seems, would have served the purpose, if as a matter of fact and law, plaintiffs had had possession for more than a year. However, defendant not only denied plaintiffs’ possession but alleged possession in itself, which it has tried most vigorously to establish. After pleading specially that the court was without jurisdiction “either in law or equity * * * for the reason that plaintiffs are not now and were not at the time of filing said bill, and have never been in possession * * it averred: “Your respondent, on acquiring lawful title to said property, as alleged, took and went into actual, open and peaceful possession of said land * * It also made reference to its suit filed earlier (No. 2486 above) to quiet its possession. It prayed a dismissal of plaintiffs’ suit, with reservation of its right to claim damages in another suit.

In Parish of Jefferson v. Texas, supra, [192 La. 934, 189 So. 582], the Supreme Court began by saying that the suit “was instituted * * * to remove clouds from plaintiff’s title * * and in answer to defendant’s attempt “to treat this suit as a petitory action, or as an action in jactitation” it was said:

“The suit does not fall within the category of either of those actions. The nature of plaintiff’s action is clearly expressed in the averments of the petition and in the relief sought by the prayer. Although plaintiff alleges that it is in possession of the property in dispute, defendants also claim that they are in possession of the property. The suit is clearly one to remove clouds from title, or, as it is sometimes called, a suit to quiet title. Such an action is well recognized in our jurisprudence. In Exchange National Bank of Shreveport v. Head, 155 La. 309, 310, 99 So. 272, which was a suit to remove clouds from title, the Court draws the clear distinction existing between such suits and petitory actions, possessory actions, actions in jactitation, and suits under Act No. 30 of 1908. This case was cited with approval and followed in the case of Bodcaw Lumber Company v. Kendall, 161 La. 337, 338, 108 So. 664. As shown by the opinion, that suit was for the cancellation of an oil lease so far as it operated as an encumbrance and a cloud on plaintiff’s title to the land. The allegations of the petition in this case are similar to the allegations of the petitions in the Exchange National Bank and Bodcaw Lumber Company cases as outlined by the Court in its opinions.”

This latter case involved no such question as the inseparability of possession by the owner from that of the lessee. The property claimed by the Parish had been expropriated for and a canal had been constructed thereon and was in operation by the United States. The defendant claimed under a deed subsequently executed, whose broad terms were sufficient to cover the canal strip. The issue was as to the legal effect of the expropriation, that is, whether a title in fee simple had been condemned, or merely a servitude. There was judgment for the Parish confirming the title in fee simple.

Thus, it would appear, notwithstanding the numerous cases cited and discussions in the briefs to support the contention that there is no such proceeding known to the law of the state as one to remove a cloud from the title to real property, as distinguished from the various possessory and petitory actions, where both sides claim possession, thus putting that question before the court, as to each, it may, if necessary, consider title to dispose of the case. The trouble with any effort to finally dispose of the title in the present case, is that the government has claimed, surveyed and sold to plaintiffs, who have accepted the same, patents to lands not shown on the original survey of the whole of Glasscock Island, as it appears on the first sketch attached to the opinion handed down herein on October 10, 1939, which consisted of four sections only, to-wit, 65, 66, 67 and 68. According to this official plat Section 65 consisted of lot 1, shown as having 75.52 acres, lot 2 with 45.50 acres, lot 3 with 36.40 acres and lot 4 embracing 36 acres and totalling 193.42 acres; section 66 consisted of lot 1, containing 37.90 acres, lot 2 of 42.50 acres and lot 3 of 41.10 acres, or a total of 121.50 acres; while sections 67 and 68 were shown only as fractional sections, containing respectively 31.16 acres and 50.66 acres; and making a grand total for Glass-cock Island of 396.84 acres of land. According to the abstract filed by plaintiffs (Hogue) and bearing designation “Hogue No. 7,” filed in the possessory action No. 2486, the first transfer by the United States, after the survey made by Williams “in the fourth quarter of 1835,” was an entry by John Griffin on June 20, 1839, covering lots 1, 2 and 3 of Section 65, with a total of 157.12 acres, which was the exact area of these three lots as shown on the plat. This 157.12 acres passed to George W. Green from Griffin by a will dated August 12th, and recorded August 22, 1860. The next year or May 9, 1861, Green attempted to acquire title to lot 4 of Sec. 65, as well as the entirety of the three remaining sections, 66, 67 and 68 by entry from the state of Louisiana and received a patent therefor bearing the same date, which was not recorded until May 5, 1867. Thus, if this patent from the state, granted twenty-six years after the Williams survey, had been valid, Green would have been vested with title to all the land shown on the island, amounting, as stated, to 396.84 acres, save and except such batture or accretions as had formed between 1835 and 1839 as to the first entry from the United States and between 1835 and 1861 as to those passing from the State.

Without deeming it necessary to describe in detail the subsequent transfers by Green and his successors in title, it is sufficient to say that they attempted to convey, in words substantially the same in all transfers, “a certain tract of land known as Glasscock Island, situated in the Mississippi River,” etc., down to and including James Boyd, one of the immediate vendors to the plaintiffs in the present case, the language used in the deed from Truman W. Leonard to Boyd being “with full warranty of title and all interest * * * in and to that certain tract of land or plantation situated in Concordia Parish, Louisiana, being an island in the Mississippi River, about twenty-two miles, more or less, below the town of Vidalia, commonly known as and called Glasscock Island * * *.”

Boyd evidently discovered that his title, under the patent from the state, dated May 13, 1861, covering lot 4 of Section 65 and sections 66, 67 and 68, was invalid, for on November 24, 1925, he obtained from the United States a patent for “all of section 67, T. 5, N.R. 9 E, and all of section 68, T. 5, N.R. 9 E, containing 81.82 acres” which was the exact area shown on plat made by Williams in the fourth quarter of 1835. Had the title from the state been good, all accretions to these sections, after severance from the public domain, would likewise have inured to the owners, subject, of course, to the issue of whether such areas were accretions or “reappearance lands” under other chains of title as claimed by defendant. However, in the meantime, that is, between the original survey, in 1835 and the making of the plat by the Mississippi River Commission, as shown by the second sketch attached to the former opinion, comparing conditions in 1883 with those of 1835, all but a very small pear-shaped portion in the extreme western central edge of the original Glasscock Island had washed away or eroded and was occupied by the eastern channel of the Mississippi River. If, after 1883 and prior to 1925, the part of Glasscock Island forming or comprising Sections 67 and 68 had been restored and other areas had attached themselves thereto, Boyd’s acceptance of the patent from the United States was a conclusive recognition that he did not own those sections, and such portions of other lands as then existed, on all sides between them and the river, were necessarily excluded, both, because it was necessary in order to convey such accretions that they be described (Baree v. City of New Orleans, 22 La.Ann. 612), which they were not (the exact acreage of the two sections, 81.82 acres, as shown on the survey of 1835, appearing in the patent) and because the entry which was under the Stone and Timber Act could not include more than 160 acres. See T. 43, Sec. 311 U.S.C.A. The quantity of land in dispute in the present case it is conceded exceeds 700 acres.

Under the survey made by Guy R. Veal in 1926-27, there was also added to the original sub-divisions of Glasscock Island four more lots in Section 66, lying and adjoining on the west the first three shown in that section, numbered respectively, beginning at the top or north end and proceeding in a southerly direction, as lots 4, 5, 6 and 7, and which were patented to plaintiffs (Hogue), in 1932, at a time, as shown by Veal’s plat, when a substantial area of land had formed to the west of these new lots. Here again, of course, was a recognition by the present plaintiffs of the fact that these four lots did not belong to them under their prior titles and hence were not accretions to lot 66.

In view of these recognitions of the title of the Government in the intervening areas, both on the south (patented to James Boyd) and on the west (patented to the Hogues), long after the various transfers purporting to convey the whole island, a serious question arises affecting plaintiffs’ title to the lands beyond to the south and west, which it is believed can not be determined in the present state of the record. On the other hand, it has been found in the possessory action by Stricker Land and Timber Co. v. Hogue, No. 2486, that Strieker, for the reasons stated in the former opinion, did not have lawful possession of the disputed land. However, without finding it necessary to discuss the voluminous record, it is my view, both as a matter of fact' and of law, that the plaintiffs in action No. 734 did have possession of the contested area sufficient to warrant its being recognized in them for present purposes. It is the duty of the court and of the litigants, so far as consistent with a proper regard for their legal situations and contentions, to bring this protracted litigation to an end as speedily as possible. Defendant has emphasized throughout that it has not put its title in issue and consequently has not offered its evidence other than its deed to show the kind of possession, that is, as owner. Having decided that plaintiffs are entitled to a decree protecting their possession, and that defendant does not have possession, it would seem that the proper course for this court to pursue is to permit the defendant to amend its answer so as to set up its title or else be relegated to an independent suit for that purpose. Therefore, the defendant will be allowed a period of thirty days in which to amend its answer to claim title; in default of which, plaintiffs will be awarded a decree quieting their possession, and relegating defendant to another action to try title.

Proper decree should be entered.