BRUSH ELECTRIC CO.". 1l:LJilCTRIC IMp. CO.

557

BRUSH ELECTRIC

CO. et atv.

ELEC'l'RIC IMP.

Co.

OF SAN JOSE.

(Circuit Court of Appeals, Ninth Circuit.
APPEALA.BLE ORDERS-FINA.LITY..

July 14, 1892.)

.·

The owner of a patent moved to be dismissed from a suit for infringement brought by a licensee on the ground that the suit had been brought without its authority. Hel,d, that, as the motion presented questions of law and fact not presented in the bill of compiaint, an order it was a "final decision, " within the meaning of the act of March 3,1891, and therefore the subject of an appeal.

Appeal from the Circuit Court of the United States for the Northern District of California. On motion to dismiss appool. Denied. Statement by KNOWLES, District Judge .. The California Electric Ligl!1t Company, and the San Jose Light & Power Company, desiring to commence a suit against the Electric Improvement COnlpany of San Jose, for an infringement of a certain patent, joined. vvith them' as a plaintiff the Brush ElectricOompany. After the bill of complaint had been filed in the circuit court for the district {)f Brush Ele(ltric Company came into said court, and moved that the said caUse be dismissed as to it. At the hearing of this motion affidavits were introduced by both the Brush Electric Company arid the California Electric Light Company bearing upon the question {)f the right of the California Electric Light Company to use the nanie of said BrUsh Electric Company in the said action. The question of, fact was considered and determined upon the affidavits. Important questions of law were presented and decided in the ruling of the court upon this motion. The court overruled the motion to dismiss. 49 Fed. Rep. 73. The Brush Electric Company appealed to this court from this order overruling its said motion. Edward P. Cole and H. P. Bowie,. for appellant. The motion of appellees to' dismiss our appeal is based on the ground that the order of January 18, refusing to dismiss the Bru8h Electric Company from the bill, is not appealable; that is, that the order is not a final or-del'. .

The facts are these: A bill was tiled in the circuit court to enjoin an infringement of a patent. The bill was entitled: "Brush Electric Company, ,California Electric Light Co., San Jose Light and Power Co., vs. The Electric Improvement Co. of· 8anJose." The Brush Electric Company, the owner of the patent, moved to be dismissed from the suit, becanse it was begun with.Qutits authority, and it had newer given any consent' to· any one to use its 'name in' this litigation, andit did not desire to press the Case. Its coplaintiff the California Electric Light Company objected, and affidavits were tiled sllowdng that the California Electric Light Company was the licensee of the Brush Electric Company, and the light and power compl\ny was its sublicensee, but without its consent, and that the California Electric Light Company had no interest in the case. Thecollrt refused to dismiss the Brush Electric Companyfroml 1;he suit, and deoided that the California Electric Light Company had the:right to the use of its name iothis suit, and that the Brush Electric .company should have no control over nor interest in thesliit. From this order an appeal has been t.aken. .

558
Since Forgay v. Con1'ad, 6 How. 204, the supreme court has many times .. linal oQe:wherr of the parties as to merits is 'terminated; but no case like tile one lit bar has' ever arisen, and, in every inlJtance where tije court has refused to entertain an appeal, the parties h'ave tieetron the opposite side of the'record, and the decree has been simply interlocutory; but many apppalslJayeJ)een entertained ,where tbeilinlltteJ,\lldjudged Wa.&tlnal as to others to be deuided. and the state courts IInd!'r a similar statute have given a like toa to pre"ent injustice, The language of the act ,this court, in 6, Act March, 1891, says: ." The cir,'uit court of shall exerdse appellate jurisdiction to review byapp,ealj>,J;,l!Y )Vrit, ()f erroranYr etc. statute dol's not say that an appeal lies from the final decision, but from any fin"l dpcision, thus contemplating what is wl'lI kno\Y1l in ElquHy, viz., tliat.there may be more than one final decision in a cause;' . '. . InStich v.Goldner, 38 Cal. 6119, tbp. plaintiff supd defendant Dickenson to a'mortgage.He denied lhatplaintiff.was the owner of the note and mettg!'gll.;Gp14ner flIed.a cOl;nplaillt ·. Diebnson demurred and the demurrer was sJlslained, a,nd jUdgnlent. was thereuPQI'! ,against .the interveoer, .l'nd he The. respondents chil'i.led t.llIitthe appeal.WI1!lllremature, lind asked to have it dlsrtlissed. as n() f1nai"jndl{ment had bpen given In the case. 'fhe. court said: "'rids position was uhtei1able; that theJ1e l had been a 'final judgment against thtdntel"vener; Bolllll'lI!lD6,wasconcel'lled,rth..judgment was tinal. and ended thebti/{ation Thl' was ruled qHlllame way in peuple v. pfeiffer,59 C,*,9Qi ()UbU1'tl Y. 53 Cal. 741Ji and Hem'y v. [murance Co., {Colo. 26 Pac. Rep. 319. . .... '. . .' . 'bi 'BfonMfl v. RaUtofld Co., 2 Black, 529, a motion was made to dismiSS the appE'al,bpcHuse no final decree: wif.hin the meaning of the act givingtihe court'jlirisdictlori. 'Sorne excet1Uo'ns to the report of the master wt<re·pendingand undetermihedwhenthe dpcreewas made. DAVIS, J .· commenting on the <;oQtelltlon 9( defendants that there had !;leen .no final decree, fir: was ;said:." A rule from which consequelH'es so in]ul'lous to thtlnghts of partlPs lItigant wouldlWCt·Ssarily result has never rpceived thl' sal'1ctiollofthis court. 'fhis decree is not final, in the technical sense of the word, for sornethinj;t' yet remains for the court below LoellQ. But it iW388aid by Justice'. TANEY in [i'org{J.Y v. ()01t1'ud, {l How. 203;' 'This court has not therefore understood the "final deio thJSlltr.ict lectlmicaI:sel111e, bll.t I)a$ 1l1\'en to them more libl'ral, and, as we thiuk, a more reasonable, construction, and onp more. consonant to the intentl(mvfthe le"i$latUl'e;' the appeal WitS sllstained, lIt-calise it determined the. merits of the litJglition as fM'1U1 appellant eoultJ control it. In Thof(I,B'J7' v. Dean, 7 WaH. 345, it was beld that lin apI't:'al lay bpcause the decrt:'eclebmIlined the matter incontroversy,betWf'pl'ldhe p<lrtiesi 4nd clluld not 'be'ehangpd,except. by a new,a.nd distinct proceed,il1g,it.deteJ'mlw,odithatwItUer,Jlllally.T,"Ustees v. f]l'eenou,gh, 105 U. S. is. an in!ltructi:Vtl C/laeon: the right (If.llppeal, and .hasl>een reppatedly apo prolled. . In 1871JI',bilJ wastillld,DY Vose, a hond,hqlqe.t,againliltt<beLtr,ustlll':lJiPfJrtMFJorid,tJmprovelllent Fund et al.,. to set Co.UveyllHces., .the mauagement of the fund largl' $1111/8 of money. Qividt'd Hmong had:bu"m othl' whillel burden and had -ad,vllnlle,! ,1l1!!itbe,elQpen8pS" filetlAJ in the Sllitshow'ing Jhesefactsi· ...lld;prlliyed o£ the f:l,lnd.. ,fb'" "tlpQrt:WaIl C9ntlr.m!;'Q. iOlplUlt"l\Jl!l;frnm: tll16 allpealwas, that time .tbtt litigation was undetermIned. It was urged tbat:Ulis.ol'der:WM nota,final de-

BRUSH ,ll:LECTRlp<,OO.'tl, ELE'OTRIOlMP. 00.

659

detetmining. the meritsoftb,e ··litiglition between the' parties, anB benee notll.ppealahle.The 531, answered the' contention, si,tyiiig: "The order is certainly a final determination of the particular matter arising oponthe petition· for allowance. Though incidental to the cause. the inquiry wasa oollateral ,ooe, having a distinct'and. independent character; and receiY· ing a final decision that the main suit might continue for years. That the case is,a peculiar.one, is true, but, under all the ciroumstances, we think that the proceedings may be regarded as sO far independent as to make the decision substantially a final decree for the purposes of an appeal." In Williams v. Morgan, 111 U. S. 689,4 Sup. Ct. Rep. 638, the court again, speaking of an appeal from an order fiXing the fee of a trustee in an unfinillhed case, said: "It was in its nature final, aud was made in a matter dis· tinct from the general subject of litigation,-a matter by itself which affected only the parties to the particular controversy." In Terit/v. Sharon, 131 U. S.46,9Sup·. Ct. Rep. 795, after the decree of the circmit court, Sharon died, and F. W.Sharon, his executor, filed a bill of revivor. To this the defendant Terry demurred. The demurrer was overruled, and from the or· der Terry appealed. Aptotion to dismiss the appeal was made, becau'sethe 'order was not appealable; but Mr;Justice MILLER denied the Dlotion, because, ashe said, "the order which the court made was so essentially decisive ,and important that thecOllft did not doubt that it was appealahle." asntral Trust 00. v. Grant Locomotive Works, 135. U. S. 209, J.O Sup. Ct. Rep. 736, seems to us ,conclusiva as to our to maintain an appeal. Here, 'before any decree whatever in the main cause, on an ex parte application, certain orders were made' directing certain property involved in the litigation to be delivered to an intervener, the plaintiff appealed, and"on m(,tionto dismiss, Chief Justice FULLER, speaking for tbecourt,:said, (page 224,135 U. S., and page 742, 1() Sup.Ct, Rep:) "They were final in their nature. and made-upon matters from the general subject of litigation." Th,e last case tbe federal courts illustrative of, our position is decided by the fifth circuit court of appeals. vIZ., Oentral T,'ust Co. v. Marietta & N. G. By. 00.· 48 Fed. Rep. 851. In this decision the lastcited case is approved. Tlllifacts were similiar, and the court again rl.'affirmtld the well-settled doctrine that, wherever a final upon matters distinctfrom the,generalsub-' ject of the litigation affecting any party to the record, whether such pllrtyis on the same or differen,t side, an appl'al will lie by the party injured. It will be noticed that all of thel:le decisions and assuD,le that in every case there may be moretban one tinal decree, and also that the reason of th'erule allowing'ltn appeal from au ord!'r made npon matters:distinct from the general subject of litigation applies equally, if not more forcibly, to us; for if we cannot appeal this order we are without remedy, against, the wrong which may be done us, and, helpless in the hal)ds of our enemies, we will be, forced to see our valuable rights destroyed without an opportunity to protest or to be heard, since, if the decree be in favor of the complainants, there must be judgment that we b'ave authorized and consented to. the aSsignment to the San Jose Light & Power Company. If in favor of the defendant, then our valuable patent tights may be adjudged void. And thus we willbe injured in any event, becausc we are Parties tot1;l!l J:>jIl, and must be concludedby the issues i,nthe pleadings; but, in the language of J l1 stice DAVIS in 2 Black, 530: "A rule from which so to the rights of parties litigant would necessarily result has never received the sanction of this court. " . The adjUdications in the state courts are equally favorable'to ont' Fight tc ·maintainthis appeal. court of appeals have decided the· ex,act question in our favor, ip. ,the case of Hay v. H,an],in's Ex'rs,13 Mon. 844. See, also, SharO'l4 v. SharT,on, 67 Cal·. 196, Pac. ·. 635.

560

FEDERAL BEPOR'JlER,VoL

51.

Lith(JgrQ/Ph'ingCo. v. Crane. (Sup.) 12 N. Y. Supp. 835; Stephens v. Hall. (Sup;;) ION. Y. Supp. 753. The order refusing to dismiss us from the bill is final as to us, and is a final adjudication of our right both to control the suit. and also to ignore the our license to the light and power company; and, since all ourdgltts between ,us and our coplainti:ffs have in this litigation and suit been ,Bnan! determined. we submit that the order is appealable·

and 8 Pac. Rep. 709; DanielS v. Daniels. (Colo. Sup.) '10 Pac. Rep. 661;

Before Judges.

g.;. Miller, for.

,:¥:CKENNA,

CIrcuit Judge, anlRoss and

KNOWLES,

District

KNOWJ,ES, District Judge'; In this court the California Electric Light Company, h10vesthis court to dismiss this appeal, on the gronndfhat the order overruli[)g this motidn was not subject to appeal, the same not irig a final ,decision; .. TAe 111atter presented fOf. consideration in this Ulotion in' the court was not one presented in the bill of complaint. It.was not a matter sought in any manner to he determined by that bill. ,'l'heorderoverruling this motion should not be termed an "interloclltorydeeree." .. An. "interlocutory decree" is. generally applied to decrees inwhich matter, either of law or 'of fact, is directed pr(lparatory. , 2 Daniells, Ch. PI. & Pro (Perk. Ed.) 1192, note a., . I , The order lYas not a· preliminary decree, .concerning matters' preparatory to a final decree upon the issues made in the bill. Neither was it a decree determining filll,tllyany oftheissues presented in the bill. It 'was, however,a'<letermiht\tion of a matter collateral t,o' the issues pre. A decre,e ()r judgment. or.decision W;hich finally desented in the terminesalLof the issues presented bytbepleadings, and finally fixes the rights of the ·parties'. is undoubtedly a final decree or judgment. The question'ofdifllculty in this case is as to whether this order settling, as far, as the'circuiteourt,was concerned, the issue presented upon this motiop, as,8.:,final decision. The act of March 3,1891, estal;Jhsh circuit courts of appeals," etc., upon the subject of appeals to this c01,1rt, provides "that the circuit court of appeals establ,ished,by this act shall exercise appellate jurisdiction to review, by appell.lorby w:rit of error, final decisioris'in the district court, and. the d,ircuit courts, in all cases other than those provided for in the of this act," etc... It, is conceded that the term "final decision ,In tbJs act ,means the same thing as final decree or j 'ment. It must ,be apparent that that t,erm embraces the others. Under that statute,finaljudigments and decrees are brought to this court for review; . The ufhlllJdecree" and"finill 'judgmelit" have been C011court in statutes providing for appeals and writs of error from lower courts to it. In the case ofJJ1illiams v. Morgan, ·111 U. S. 689, 4: filup. Ct. Rep. 638, .thatcourt says of an order which was made upon .acollateral rnatter not presented by any of the pleadings in the case: ;('It was in its nature final, and was made in a matter distinct from the genera:I subject of litigatioll,-a matter by itself which

to.

BRUSH ElJECTRIC CO.V. ELECTRIC IMP. CO.

561

affected only the parties to the particular controversy." And this order it was held was such a final decree as could be appealed from. In this the supreme court followed its former decision in the case of Forgay v. Conrad, 6 How. 203. In that case the court said: "This court has not, therefore, understood the words 'final decree' in this strict technical sense, but has given to them a more liberal, and, as we think, a m.ore reasonable construction, and one more consonant to the intention of the legislatul'e.". In this case the court held a decree was final which tletermined certain issues, and which did not finally determine the case. .J'he conclusion that the decree, to be a final one, within the meaning ofthe act of congress, providing for appeals to the supreme court, need not necessarily be one that disposed of all the issues presented in the case finally,but may include a final determination in collateral matters, was reached in Bromon v Railroad Co., 2 Black, 530, and in Central Trust Co.v. Grant Locomotive Worlc8, 135 U. S. 209, 10 Sup. Ct. Rep. 736. In the state col1i'ts it decree for alimony pendente lite has been classed as a final decree, although the issues in the pleadings are not involved in awarding the same. Sharon v. Sharon, 67 Cal. 195,7 Pac. Rep. 456, 6;30, and 8Nc.Rep. 709. . The meaning given to the terms "final decree" or "judgment," in the statute providing for appeals tQ the supreme court, should be the same in' the statute under consideration providing for appeals to this court. Consideritigtheconstruction given by the supreme court to the terms "final decisions," "judgments," or "decrees," we reach the. conclusion that the term "final decision" in said statute under consideration necessarily such decisions or decrees only whiqh finally does nbt determine all the issues presented by the pleadings; that, while these are undoubtedly final decisions, the terms are not limited to them, but also. apply .toa final determination of a collateral matter distinot from the genernl8tibjectof litigation, affecting only the parties to the particular controversy, and finally settles that controversy. It would seem, also, that the importance of this collateral matter should be considered. Terry v.Sharon, 131 U. S. 46, 9 Sup. Ct. Rep. 705. The order overruling the motion of the Brush Electric Company to dismiss the cause as to it, does seem to have been the final determination of a most important question, collateral in its character. In considering the motion, questions of fact and of law were involved. Distinct issues of both were presented. They were such as were not presented by the general issues in the case. These questions would not be again presented. They were not preliminary to the decree· upon the merits,or involved in the decree upon the merits. The order determining the issues upon this motion we therefore hold was a "final decision," within the meaning of the statute concerning appeals in this court above referred to, ahdwastherefore the subject of an appeal thereunder. The motion to disrnissthe appw is overruled. v.5TFlno.9.......36

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It SA,ME-DEpBcnn':APPLIANOES-Duu 0' R,lILRO"D COJO'ANT. ' The duftyrof 'a> Jl8ilroad ,oompaoytll ,fUtnish 'Its! employes With safe and reliable adequate t,o seryioea in t\1ey are Dot be to apqtMr,servant 10 as to exempt from liability tor iOJuries' C8.usedJ bY', itl omission. Nor ,will'the negligence 'of a fellow servaot.exouse the coD/-pany lia,bj.lit,!to 8. Qot, I!-ay;e happened had ,the proper mllPhinery beenfilrnisbed.' "
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'k rafh'Oad hand'was 'on'a' hand car wttbdthe\" employes, under the eontroland sUJperintelldence' of a section, boss, and: WBB .t the rate of 10 miles an, Qllur. 00 CIU" had peen s#pplied by, the sel;ltio0l>Q!ls, and were deleetive. ' Exira trains were being run over that 'section, Withont noticeto tbeh",nas. i A rapidly moving freight trainappruaohed through a oull and ,.r0\l.0d ll,0 ,Warni.llg,or .Tpe brajl:e on apPIled' without' etfeot;and plaintl1f, believing hImself'in {mmmont peril, lumped, ',r,'ran ove,r,,:,him., He,ldsuJl1cient toW8l',la,IIltl"g"" 08ttw'"ee,It 't, 8, ',I'8,ilB,la,D<t t,lle hand,,'ca, " , , theJllq: ip. company Uaple1 '" '
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Tile' emplQiel', on the car had a rigllt to el[p(lCt that th()lle in charge of the freight train would give the usual warning in apprOlloohiog places danger; and the negligence of the officer io charge of the train in this respect was not one of , thil '11,"'1'1' and rillkB !las:ume1i' 'b.1 :the, plainti4 to hiB employInent" ,,,' , , ' " , , , I , " "",,'! "I, 'The mOde of examlninr a witness il "lvUbln; tbe:discretton of the' court, atld !it is not e,rror, toaIlj)w WitopeS$ito ,gire his te"tiQlpny Ina narr",tive fprm, and If he states mattetll br'lncolllpeteot it iluty o,f the party objecting ,to arrest the narrative, 8.nd,move, to have suoh te$ttmony,stricken out. 'J,'he.t,el1e,ral ,courts ,have no po\Ver to order avero1ettar
YBRDlpor-;I'OWl!!R ,01'" Cou,'r. ,

II.

nonsll-it at, ,the ,close of beffre the latter l1as rested

ICOURTS.:

'

6." BILL ........ TO , ' , A btU of etoeptio!lS which, In respect to certain aclmltted at the trial, '00,I:1tainll' mere"1,1.; the for,maIreco,rd, ",Objection taken,;,' overr,uled;· exo,eptIO.DS aI.. lowed, too gElll6ral to present any queljtiQll review, as the ground ot objection, shouid' be pointed Ont. ,', ,. . "'''. 7., VEBDICT-NBW TR1AL. 'J;'heCQrreQtiOll qf an verl'lict is !4luestion for' the trial court on a motion for a ilewtrial,the granting or reful\iDg' of which wID not 00 reviewed by the federal appellate COurtll. ': : '

Error to thEi Circuit Conrtof the United States:for' the District of Woshington. 'At ActionJ:>y Hngh 'Charless againstthe Northern Pacific Railroad Company for damages for personal injuries. Judgment for plaintiff in the sum of 818,25Q. . Affirmed. . :John error. A. McBrorrm and Pratlter.& Dansan, for defendant in error. Before· DEADY, HAwLEt ,and MORROW, District:Jndges.
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,

Dil'ltrl.c.t J action was brought 'by' Hugh :Charless, defendant in error, tlie' ,p.laint.iff ,below, tq,recover ;the'sum of, &25,000 for damages for personal injuries, alleged to have been received by him while in the employ of the Northern Pacific Railroad Company, defendant in error, as a section hand engaged at work on the line of the road at a