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GEORGIA SUPREME COURT,

to

J. M. STEWART et al., Plffs. in Err., titled to the same protection by law as other

property. A. C. HOOK et al.

New Jersey State Dental Soc. v. Dentacura

Co. 57 N. J. Eq. 593, 41 Atl. 672; Aronson (........Ga...... .)

v. Baker, 43 N. J. Eq. 365, 12 Atl. 177;

Simmons Hardware Co. v. Waibel, 1 S. D. •1. Independently of patent rights, the 488, 11 L. R. A. 267, 36 Am. St. Rep. 755,

discoverer of a medical preparation 47 N. W. 814; Tabor v. Hofi man, 118 N. Y. has a property right in his discovery, in that he may keep it a secret; and those 30, 16 Am. St. Rep. 740, 23" N. E. 12. who, through confidential relations with him,

As to the nature of such property at comgain possession of his secret, will be re- mon law, independent of the copyright statstrained by a court of equity from divulging utes, seeit so as to make use of it to his detriment.

Wheaton v. Peters, 8 Pet. 591, 3 L. This right may be sold as any other prop. ed. 1055, and note; Press Pub. Co. v.

erty. 2. One whom the

38 formula and

Monroe, 51 L. R. A. 353, 19 C. C. A. 429, right to manufacture an unpatented, U. S. App. 410, 73 Fed. 196; Peabody v. though secret, medical preparation Norfolk, 98 Mass. 452, 96 Am. Dec. 664; have been sold by the discoverer can-Green v. Folgham, 1 Sim. & Stu. 398. not maintain an action for damages against

Messrs. another to whom the discoverer has subse Thomas, for defendants in error:

Anderson, Anderson, quently sold the same formula and right, without showing that the defendant, in the

The term “Acme Opium Cure” was not in acquisition of the formula, has been guilty law such an expression as might be the subof a breach of confidence or of contract with ject of a trademark. the plaintif, or has acted in fraud of the

Larrabee v. Lewis, 67 Ga. 562, 44 Am. plaintiff's rights.

Rep. 735; Computing Scale Co. v. Standard

Computing Scale Co. 55 C. C. A. 459, 118 (August 12, 1903.)

Fed. 965; 26 Am. & Eng. Enc. Law, p. 361,

and notes. ET RROR to the City Court of Atlanta to review a judgment in favor of defend without knowledge of the right of another

Any person who purchased from Tilden ants in an action brought to recover damages and previous purchase would be protected. for alleged wrongful use of a secret formula His possession would be exactly like that of for the manufacture of medicine to the in

a person who purchased a horse without jury of plaintiffs. Affirmed.

knowledge of the fact that the vendor had The facts are stated in the opinion. Mr. C. L. Pettigrew, for plaintiffs in but had never delivered possession thereof,

previously sold the horse to someone else, error:

that is to say, that the defendants, not knowSecret formulas and receipts are personal ing of the fact that the plaintiffs had purproperty at common law, and also by the chased the formula, might also acquire a Civil Code, § 3070. Such property may be title to it, which the plaintiffs could never conveyed, either by a bill of sale, or by interfere with, though they might both have parol.

the right to use it. Civil Code, 38 3538, 3626. State courts have full authority to pro- Dec. 664; Tabor v. Hoffman, 118 N. Y. 30,

Peabody v. Norfolk, 98 Mass. 452, 96 Am. tect such property and property interests as 16 Am. St. Rep. 740, 23" N. E. 12; Chadwick in other cases of common-law rights.

v. Covell, 151 Mass. 190, 6 L. R. A. 839, 21 Dwight, Persons & Pers. Prop. pp. 488, Am. St. Rep. 442, 23 N. E. 1068. 489; Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 480.

Every product of mental labor embodied Candler, J., delivered the opinion of the in writing, or other material form, is the court: exclusive property of its author, and en- The plaintiffs, James M. and P. A. Stew

art, brought suit in the city court of At•Headnotes by CANDLER, J.

lanta against A. C. Hook and Alfred I. NOTE.—As to property right in secret re

Manson, the material portions of the peticipes or processes, see also, in this_series, tion being substantially as follows: Both Chadwick v. Covell, 6 L. R. A. 839 ; Tode v. the plaintiffs and the defendants are resiGross, 13 L R. A. 652, and note; Watkins v. dents of Fulton county, Georgia. For sevLandon, 19 L. R. A. 236.

eral years prior to December 15, 1894, one As to injunction to protect trade secrets, see 0. & W. Thum Co. v. Tloczynski, 38 L. R. A. L. F. Tilden manufactured and sold a cer200; Harrison v. Glucose Sugar Ref. Co. 58 L tain cure for the opium and morphine habit, R. A. 915 ; and Stone v. Goss, post, 344. known as the “Acme Opium Cure," of which cure Tilden was the discoverer and sole | fendants have infringed the trade name owner, and by means of which he had built which was the property of the plaintiffs, the up a large business. The cure consisted of action as a whole does not seem to be one secret formulas and receipts for the manu- for damages for the infringement of a tradefacture and compounding of medicines for mark or trade name, and any claim which the cure of the opium and morphine habit, may have been made on that ground was alleged to be known only to Tilden. At dif- abandoned in the argument before this ferent times during the month of December, court. The sole contention made in the 1894, Tilden sold to each of the plaintiffs brief of counsel for the plaintiffs in error a one-half interest in the Acme Opium Cure, is that their petition set out a cause of including all the formulas, receipts, and the action, in that it alleged a violation by the business, and the plaintiffs became the sole defendants of their property right in the owners of and partners in the said cure and secret preparation known as the Acme business; and Tilden covenanted with the Opium Cure. It is well settled that the plaintiffs “that he would never sell, manu- discoverer of a medical preparation or forfacture, offer for sale, or advertise any medi- mula, even though such preparation be not cine under the name of the said Acme Opium patentable, has, like an author or an inCure, and that he would not reveal the seventor, a property right in the product of cret of the manufacture of the same to any his mental labors. This right was recognized person whatever, nor would he at any time at common law, independently of copyright sell or deal in anything with a name so or letters patent. See Tabor v. Hoffman, similar as not to be distinguished from the 118 N. Y. 30, 16 Am. St. Rep. 740, 23 N. E. cure sold to the said J. M. & P. A. Stewart.” 12, and cases cited. It seems equally clear Immediately after their purchase of the that such property, like any other, may be business from Tilden, the plaintiffs began transmitted by sale or otherwise by the manufacturing, advertising, and selling the discoverer to others. The property right in Acme Opium Cure, and soon built up a large an unpatented preparation, however, is not business, from which they made a profit an unqualified one, and is only exclusive unamounting, in round numbers, to $2,500 per til, by publication, it becomes the property year. About January 1, 1897, Tilden, in of the public. T'abor v. Hoffman, 118 N. Y. violation of the plaintiffs' rights, sold the 30, 16 Am. St. Rep. 740, 23 N. E. 12. In same formulas and receipts to the defend other words, the discoverer may keep his ants, and the defendants began actively to formula a secret, and no one may, by fraud manufacture and sell the said cure under or artifice, obtain his secret from him. One the name of the Acme Opium Cure. This who, by reason of confidential business relawas not done by public advertising, but by tions with the discoverer, has gained possecret correspondence all over the country session of his trade secret, will be reunder the name of L. F. Tilden, and the de- strained by a court of equity from betrayfendants used "the same formulas and re-ing the trust reposed in him by using the ceipts beionging to the plaintiffs, used the formula for his own gain. Morison v. Moat, same literature, and all the means known 20 L. J. Ch. N. S. 513; Peabody v. Norfolk, for building up the business in this line." 98 Mass. 452, 96 Am. Dec. 664; Salomon v. This was unknown to the plaintiffs until Hertz, 40 N. J. Eq. 400, 2 Atl. 379; Tabor July, 1902. From the time of the sale to v. Hoffman, 118 N. Y. 30, 16 Am. St. Rep. the defendants and the manufacture and 740, 23 N. E. 12; Kerr, Inj. *440. If, how. sale of the Acme Opium Cure by them, the ever, one honestly and fairly comes into posbusiness of the plaintiffs fell off greatly, session of the formula of an unpatented and has been almost taken away from them. preparation, he has the right to use it and The plaintiff's were the sole owners of the to sell it, and equity will not restrain him Acme Opium Cure and all its appurtenances, from so doing. See James v. James, L. R. "including the trade name of the 'Acme 13 Eq. 421, where it was held: “Any perOpium Cure,' and the defendants have in son who has, without the use of unfair fringed upon their said trade name, and dam- means, become acquainted with the mode of aged their business, and appropriated to compounding a secret un patented preparathemselves profits belonging to the plain- tion may, after the death of the original tiffs, and their property in said formulas discoverer, make and sell the compound, and receipts." They prayed for damages in describing it by the name of the discoverer.” the sum of $1,000 per year from January 1, The case of Chadwick v. Covell, 151 Mass. 1897, to July 1, 1902, amounting to $5,500. 190, 6 L. R. A. 839, 21 Am. St. Rep. 442, To this petition the defendants demurred 23 N. E. 1068, is, as to its facts, very simgenerally and specially. The court sus- ilar to the case now under consideration. tained the demurrer and dismissed the suit, There it appeared that the plaintiff had and the plaintiffs excepted.

into possession of certain secret While the petition alleges that the de- 'formulas by gift from the administratrix of

come

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the discoverer, Dr. Spencer, and began to the plaintiffs, be held liable to them in any manufacture and sell the medicines. Sub- way whatever. sequently the administrator de bonis non Judgment affirmed. conveyed by deed to the defendant, and the plaintiff brought suit to enjoin him from All the Justices concur, except Turner, manufacturing or selling the medicines. I., not presiding. The court, Holmes, J., delivering the opinion, said: “So far as the right to manufacture and sell the medicine goes, the plain- SOUTHERN RAILWAY COMPANY, Piff. tiff's case may be disposed of in a few words. Dr. Spencer had no exclusive right

in Err., to the use of his formulas. His only right

H. JAMES. was to prevent anyone from obtaining or using them through a breach of trust or

(........Ga.........) contract. Anyone who came honestly to the knowledge of them could use em

Where a servant does an act in Dr. Spencer's permission, and against his the execution of a lawful authority will.” To the same effect, see Peabody v. given him by his master, and for the purpose Norfolk, 98 Mass. 452, and note appearing

of performing what the master has directed,

the master will be liable for an injury thereby in 96 Am. Dec. 669; Massam v. J. W. Thor

inflicted on another, whether the wrong be ley's Cattle Food Co. L. R. 6 Ch. Div. 574;

occasioned by negligence or by a wanton and Kerr, Inj. *441. Applying this rule to the

reckless purpose to accomplish the master's present case, it becomes apparent that the business in an unlawful manner. court below did not err in sustaining the 2. In the present case there was evidemurrer. There is no allegation in the pe

dence from which the jury could find that

the wrong done by the servant was done tition that the defendants came by their

within the range of his employment, and for knowledge of the formula of the Acme

the purpose of accomplishing the business Opium Cure in any unfair way, or that they which the master had authorized him to do. have committed any fraud or breach of trust of which the plaintiffs can complain. The

(August 11, 1903.) nearest that the petition comes to making such a case is in the allegation that the E RROR to the City Court for Floyd Counbusiness of the defendants was done "by

ty to review a judgment in favor of

plaintiff in an action brought to recover secret correspondence all over the country under the name of L. F. Tilden,” but, while damages for personal injuries inflicted upon this is an intimation that the business meth- plaintiff by defendant's servant, for which

defendant was alleged to be responsible. ods of the defendants were clandestine and far from aboveboard, it is by no means

Affirmed.

The facts are stated in the opinion. sufficient to charge them with having ob

Messrs. Shumate & Maddox and Hartained the formula by fraudulent means.

ris & Chamlee for plaintiff in error. On the contrary, the petition affirmatively shows that the defendants procured that and Barry Wright for defendant in error.

Messrs. W. H. Ennis, Seaborn Wright, formula from its discoverer, Tilden, and, from aught that appears, their acquisition • Heađnotes by SIMMONS, Ch. J. of it was as honest as that of the plaintiffs.

NOTE. As to liability of master for killing, It does not even appear that they knew of by servant set to guard premises, of person any right in the plaintiffs to manufacture coming thereon, see Davis v. Houghtelin, 14 L. or sell this preparation. It is quite evident R. A. 737; Lipscomb v. Houston & T. C. R. Co. that the plaintiffs have sued the wrong man.

55 L. R. A. 869; and Holler v. Ross, 59 L. R. A. According to their allegations, Tilden was

As to master's civil responsibility generally bound to them by contract not to divulge for wrongful or negligent act of servant towards the secret formula of the Acme Opium Cure, one having no claim upon the master by reason but (whether to relieve the sufferings of a of contract, see note to Ritchie v. Waller, 27 drug-cursed world or to increase the dimen- L. R. A. 161; Mayer v. Thompson-Hutchison sions of his bank account does not appear) Bldg. Co. 28 L. R. A. 433; Baltimore Consol. he has violated his agreement, and in so do- R. Co. v. Pierce, 45 L. R. A. 527; Nelson Busi

ness College Co. v. Lloyd, 46 L. R. A. 314 ; ing has well-nigh compassed the ruin of the Pierce v. North Carolina R. Co. 44 L. R. A. 316 ; plaintiffs' business. As has been seen, what. Galveston, H. & S. A. R. Co. v. Zantzinger, 47 ever Tilden’s liability may be, and this we L. R. A. 282 ; Dorsey v. Kansas City, P. & G. R. are not called upon to decide,—the ones to Co. 52 L. R. A. 92; Lynch v. Florida C. & P. R. whom he made the second sale of his dis. Co. 54 L. R. A. 810; Guille v. Campbell, 55 L.

R A. 111; Alsever v. Minneapolis & St. L. R. Co. covery cannot, in the absence of a showing 56 L. R. A. 748 ; Euting v. Chicago & N. W. R. that they obtained the formula through Co. 60 L. R. A. 158; and Kleebauer v. Western some fraud or unfairness practised upon Fuse & Explosives Co. 60 L. R. A. 377.

943

ance.

Simmons, Ch. J., delivered the opinion he was employed, or in and about that busiof the court:

ness? Ford swears positively that SaunIt appears from the record that Saunders ders, the yard master, employed him. Durwas the yard master, in East Rome, of the ing the negotiation prior to his employment Southern Railway Company. He employed Saunders asked him if he was afraid to Ford as night watchman of the company, to arrest tramps. Ford replied in the negalook after the property and interests of the tive. Saunders then told him he was to company in the East Rome yards, and for arrest all tramps or other persons stealing the purpose of arresting trespassers who rides upon any of the company's trains comwere stealing or attempting to steal rides ing into or going out of East Rome, and to on the trains of the company which passed take charge of them. What was the author. through those yards. It was also the duty ity of Saunders to employ Ford for this of Ford to attend the switch lights in the purpose does not affirmatively appear from yards. On the night of July 19 or 20, 1899, the record. The plea of the company denied Ford caught James, the defendant in error, his authority to employ Ford and authorize on the top of a box car, it being the purpose him to make arrests, but there was no eviof James to steal a ride on the train. Ford dence to support this plea. The evidence ordered him to get down. He obeyed, and did show that Saunders employed the plainFord arrested him. James resisted to such tiff and others, and discharged others. It an extent that Ford had to call in assist- also showed that, after the employment of

Ford then started with James to the the plaintiff by Saunders, plaintiff was paid calaboose of the town, where it had been his salary by the railroad company. It also the custom to confine prisoners of this char- appeared from the evidence that Ford's acter. Ford testified that he made the ar- predecessors in office had arrested persons rest for the company, and as its employee. stealing rides, and confined them in the calOn the way to the calaboose James broke aboose until morning, when they were turned away from Ford and ran. Ford commanded over to the state officers. This was suffihim to halt, but James kept running. The cient, we think, to authorize the jury, in night was dark, and Ford then, according the absence of evidence to the contrary, to to his own testimony, fired in about the infer that Saunders had authority to em direction in which James had run, not to ploy Ford as a night watchman, not only to hit him, but to frighten him, and cause him watch over the company's property, but to to stop, so that Ford could “arrest him and make arrests for the company. It is also lock him up." The bullet from Ford's pistol proper to note that there is a statute of struck James in one of his legs, which liad force in Georgia making it a penal offense to be amputated above the knee. James to steal a ride upon a railroad train. brought suit against the railroad company It was argued, however, by the learned for the injuries thus received, and the jury, counsel for the plaintiff in error, that, even on the trial of the case, returned a verdict if Ford had authority to arrest James, he in his favor for $500. The company moved had no right to imprison him, or to shoot for a new trial upon several grounds. The him on the way to the prison. While there motion was overruled, and the company ex- was no evidence to show that Ford was excepted.

pressly instructed to confine his prisoners The view we take of the case renders it in the calaboose, there was evidence that his unnecessary to discuss seriatim the grounds predecessors had done so. Even in the abof the motion for new trial. All of them sence of proof of such a custom, we think hinge upon the question as to whether, the authority to confine the prisoner necesunder the facts, the railroad is liable to sarily followed the authority to arrest. This James for the injury inflicted by its em- was one of the incidents of the arrest. If ployee. That Ford was an employee of the Ford could not imprison one arrested, what company there is no doubt, the only doubt was the use of the arrest? The town marin the case arising upon the question shal was shown not to be on duty at night, whether the acts done by him were within and some disposition had to be made of the the line of his employment. If they were, prisoner. It could not have been expected then under the law the defendant is liable; that Ford would personally hold his prison. if they were not, but were simply the indi-ers all night and neglect his other duties. vidual acts of Ford, the company is not lia- To tie them or lock them up at the yards ble. Our Civil Code ($ 3817) declares that could scarcely have been expected of him, the master shall be liable for the torts of nor would either of these methods have re. his servant when done in the prosecution quired less authority than to confine the and within the scope of his business, whether prisoners in the town calaboose. The cala the same be by negligence or voluntary. boose was the proper place to put them ip Were the acts committed by Ford within the until they could be turned over to the state's scope and range of the business for which officers to be held for trial. We hold, therefore, that the authority to arrest carried | ant had full authority from the master to with it the authority to take the prisoner to arrest the plaintiff'. If made in a proper the calaboose, and there confine him until way, this arrest would have been entirely he could be turned over to the proper offi- lawful. Indeed, the arrest was properly cers. When an agent is authorized to do a made, and was a lawful arrest. Acting still thing, he has implied power to do all the within his authority, and being still within acts necessarily incidental to doing the thing the law, the servant undertook to imprison authorized.

the person he had arrested. To do this it Having shown that Ford was authorized | was necessary to take him to the calaboose, to arrest and imprison, the next question to where he was to be confined. So far the arise is whether the company is liable for servant was clearly within his authority, the injury which James sustained as a con- and did nothing which was illegal. In ensequence of the shot from Ford's pistol. deavoring, however, to take the prisoner to The Code section cited above declares that the place of confinement, when the prisoner the master is liable for the torts of the broke away and ran, the servant negligently, servant within the scope of the master's recklessly, and wantonly fired in the prisbusiness, whether such torts be negligent or oner's direction in order to frighten him into wilful. This seems to be the settled law in halting. The authority to make the arrest all the jurisdictions in this country in which and to confine the prisoner implied the authe common law prevails. Where a master thority to use such force or violence as was instructs a servant to do a lawful act, and necessary. The servant, through a want of the servant, while engaged in the master's judgment and discretion, used an unjustifibusiness, and intending to do the act au- able amount and character of force and viothorized, is reckless in the performance of lence. He did so in an attempt to execute the act, and inflicts injury on another, the the authority to arrest and imprison, and master is liable. Webb's Pollock, Torts, the master is liable for the injury thus 103. So, if the servant, acting in the way wrongfully inflicted upon the plaintiff. of his employment, and on his master's account, wilfully and deliberately commit a much stress on the fact that the shooting

Counsel for the plaintiff in error laid wrong, the master is liable. Id. p. 109. See of the plaintiff was a criminal act, and aralso Reinhard, Agency, $$ 485, 486. rule is thus well stated by Hoar, J., in gued that it was, therefore, an act which

The arrest and Howe v. Newmarch, 12 Allen, 49, 56: "The could not be authorized. master is not responsible as a trespasser

imprisonment of persons violating the statunless by direct or implied authority to the ute against stealing rides on railroad trains servant he consents to the wrongful act. were, however, lawful acts, which could be But if the master give an order to a servant, authorized, and which were in fact authorwhich implies the use of force and violence

ized. The crime committed by the servant to others, leaving to the discretion of the was in his injudicious attempt to execute servant to decide when the occasion arises this lawful authority in an unlawful man. to which the order applies, and the extent ner. It was the means adopted by the serv. and kind of force to be used, he is liable if ant for the purpose of performing the authe servant, in executing the order, makes thorized work of the master. The civil use of force in a manner or to a degree which liability of the master is not affected in such is unjustifiable. And in an action of tort a case by the fact that the servant has renin the nature of an action on the case the dered himself criminally liable. If the master is not responsible if the wrong done criminal act of the servant was done within by the servant is done without his authority, the range of his employment, and for the and not for the purpose of executing his

purpose of accomplishing the authorized orders or doing his work. So that if the business of the master, the latter is liable. servant, wholly for a purpose of his own, Applying these rules of law to the present disregarding the object for which he is em

case, there was evidence from which the ployed, and not intending by his act to execute it, does an injury to another not with jury could find that the defendant was

liable for the injuries inflicted upon the in the scope of his employment, the master is not liable. But if the act be done in the plaintiff. See 20 Am. & Eng. Enc. Law, execution of the authority given him by his 2d ed. pp. 169-176; Noblesville & E. Gravel master, and for the purpose of performing

Road Co. v. Gause, 40 Am. Rep. 224, and what the master has directed, the master note [76 Ind. 142]; Smith v. Louisville d will be responsible, whether the wrong done N. R. Co. 95 Ky. 11, 22 L. R. A. 72, 23 S. W. be occasioned by negligence, or by a wanton 652; note to Goodloe v. Memphis & C. R. or reckless purpose to accomplish the mas. Co. 54 Am. St. Rep. 71; Higgins v. Waterter's business in an unlawful manner.” In vliet Turnp. & R. Co. 46 N. Y. 23, 7 Am. the case now under consideration, the serv- Rep. 293; Cooley, Torts, 2d ed. 626 et seq.;

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