4. Criminal law tion of guilt. (264 F.) 318-Falsification of testimony by defendant creates presump Falsification of testimony by defendant gives rise to a presumption of guilt, to be weighed by the court. In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. S. J. Lindsey was convicted of an offense, and he brings error. Affirmed. Certiorari denied 252 U. S. —, 40 Sup. Ct. 393, 64 L. Ed. ———. A. Johnston Ackiss, of Norfolk, Va., for plaintiff in error. Hiram M. Smith, U. S. Atty., of Richmond, Va. (Frank C. Miller, Asst. U. S. Atty., of Norfolk, Va., on the brief), for the United States. Before PRITCHARD, KNAPP, and WOODS, Circuit Judges. WOODS, Circuit Judge. Jury trial having been waived, the defendant was found guilty and sentenced by the District Judge on an information charging him in the first count with ordering, purchasing, and transporting 1,200 quarts of whisky from Baltimore, Md., to Norfolk, Va., on January 20, 1919, when the laws of Virginia prohibited the transportation and sale, of liquors for beverage purposes. In the second count it is alleged the transportation was not for any of the purposes allowed by the statute. Error is assigned in the refusal of the District Court to acquit on the ground that there was no evidence from which guilt could be reasonably inferred. The testimony against the defendant was to this effect: The officers found the defendant with two other persons loading cases of whisky at Face's Brickyard, on or near a wharf in Norfolk harbor. The defendant was in the act of taking a case from the direction of the wharf and placing it in the automobile. Some of the persons engaged in the loading ran, and the defendant dropped the package and crawled under the automobile, where he was arrested. Sixteen cases of whisky were found in the automobile. Walker, one of the defendants associated in the enterprisę, was afterwards arrested. Under his . direction an officer afterwards found in a scow or barge at Face's Brickyard 104 cases of whisky, similar in every respect as to marks, shape, size, and contents to those found in the automobile, described by Officer Holland as follows: "Bottled in Bond S. T. Snyder Corporation, "Net contents one pint, sealed with government seal, showing bottle, Fall, 1918, Distillery #368, 5th District of Kentucky, H. E. Walker, Distillers. "Box marked, "GLASS,' this side up with care TWO DOZEN PINTS WHISKY, also government stamp, Internal Revenue #5, State of Kentucky. This case contains three proof gallons distilled, fine spirits in twenty-four bottles." The defendant denied participation in loading the whisky and all knowledge of the transaction, saying that he was arrested near the wharf, where he had gone to pump out his launch and to look after >For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes his scow and other property near the wharf. The finding of the District Judge shows he believed the testimony of the officers to be true, and the testimony of defendant to be a fabrication. [1, 2] The labels on the packages and bottles and the identity in marks and other respects were strong proof that the whisky in the automobile and that in the scow made up a large shipment from without the state into the state of Virginia. This was the essence of the crime charged in the indictment, and it made no difference that there was no proof of transportation from Baltimore. Malcolm v. United States, 256 Fed. 363, 167 C. C. A. 533. The proof of the corpus delicti was therefore plenary. [3, 4] The possession of defendant and his associates and transportation of it by them from the wharf to the automobile with nothing to show any intervening possession or control leads to the legitimate inference that they had transported it into the state. "Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances." Wilson v. United States, 162 U. S. 613, 619, 16 Sup. Ct. 895, 898 (40 L. Ed. 1090). Falsification by defendant also gave rise to a presumption of guilt to be weighed by the court. Wilson v. United States, supra; Allen v. United States, 164 U. S. 492, 500, 17 Sup. Ct. 154, 41 L. Ed. 528. The unexplained possession and transportation in Virginia of the whisky shown by the marks and labels to have been transported from another state into the state of Virginia and the falsification of testimony by the defendant were sufficient evidence to support the inference of the court that the defendant was a participant in the transportation into the state of Virginia from another state. Affirmed. FRAZIER v. INTERSTATE R. CO. (Circuit Court of Appeals, Fourth Circuit. January 6, 1920.) No. 1741. Master and servant 286 (33)—Negligence as to switchman held question of fact. Where an employé in switchyards was ordered over his objection to assume the duties of brakeman in switching operations at night, a work to which he was unaccustomed, and while signaling was struck and killed by a car which was being pushed on another track, so that it obscured the engine headlight, the question of the duty to have a lookout on such car, or to give deceased warning, held not one to be determined as matter of law, but one for the jury. In Error to the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge. Action at law by Lou Frazier, administratrix of James L. Frazier, deceased, against the Interstate Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (264 F.) William H. Werth, of Tazewell, Va. (Werth & Werth, of Tazewell, Va.. on the brief), for plaintiff in error. J. L. Camblos, of Norton, Va. (Joshua F. Bullitt, of Philadelphia, Pa., and Bullitt & Chalkley, of Big Stone Gap, Va., on the brief), for defendant in error. Before PRITCHARD, KNAPP, and WOODS, Circuit Judges. WOODS, Circuit Judge.. A demurrer was sustained to the amended declaration, alleging negligence of the Interstate Railroad, resulting in the death of James L. Frazier while employed as a brakeman in defendant's Andover yard. We do not consider the error assigned in sustaining the demurrer to the original declaration, because the plaintiff elected to amend rather than stand on his original declaration. Specifically, the question is whether a jury could draw a reasonable inference, from proof of the surroundings in which deceased was working in the yard of the defendant, that due care required notice to him of the approach of the freight car which killed him by a light or a lookout, or by sounding the bell or whistle. Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758, is mainly relied on to sustain the demurrer. In that case it was held that negligence could not be inferred from the failure of the . defendant to keep a lookout or sound the bell or whistle on a switching train as it approached Aerkfetz under these circumstances: Aerkfetz was a track repairer of long experience in the yard, familiar with the movements of the switch engine. It was daylight, and there was no obstruction to his view of the slowly approaching train. Track repairing is ordinarily a work of deliberation, requiring no strain on the attention. Aerkfetz knew that the switch engine was busy making up cars and moving trains, and that at any minute cars were likely to move along the track on which he was working. Knowing the direction from which the moving cars were to be expected, he chose to work with his face away from that direction, and continued his work without even turning to look. The case decides nothing more than that under such conditions one in charge of moving cars may assume that those doing the ordinary work on a track will use their senses of sight and hearing, and keep out of the way of expected switch engines and cars. The case alleged here is essentially different, some of its features. being in striking contrast with these which distinguish the Aerkfetz Case. The regular employment of the deceased was that of a car knocker; his work being upon and about stationary cars. dience to the peremptory orders of the defendant and against his earnest protest, he was required to undertake the duties of a brakeman handling moving cars in the yard, work in which he had little experience, and much more hazardous than his regular employment. In the darkness of the night he had to step down from the engine, couple it to a car, step from between the engine and car, and communicate by signal with an extra brakeman, who was to couple another car, that the train was ready to pull out. After he had coupled, and while standing near the main track waiting for the exchange of signals, a train, consisting of an engine and a freight car in front and one be 264 F.-7 hind, came upon him unawares, without warning, and killed him. The crew of this engine and cars knew the position and work of deceased and his crew, and the danger to which they were exposed, or in the exercise of due care should have known. They also knew that the headlight of the engine would be obscured by the car it was pushing ahead, and that the noise of the engines would prevent deceased and the other members of his crew from hearing the approach of the train. It is common knowledge that the work of coupling, uncoupling, and signaling is dangerous and absorbing, and requires concentrated attention to avoid mistake and accident. Both authority and reason are against the proposition that the crew of a switch train, or any other train, can be judicially declared as a matter of law to be without fault in running along an adjacent track under such conditions as here appear, without showing a light or sounding a bell or whistle or having a lookout. Upon proof of the allegations of the declaration, it will be for the jury to say whether the proximate cause of the casualty was solely negligence of the defendant, or of the plaintiff, or the two combined, or inevitable accident. Among the cases sustaining this conclusion we cite: Norfolk & Western Ry. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172; Chicago, Rock Island Ry. v. Wright, 239 U. S. 548, 36 Sup. Ct. 185, 60 L. Ed. 431; Erie R. R. Co. v. Purucker, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166; Toledo, St. L. & W. R. Co. et al. v. Bartley, 172 Fed. 82, 96 C. C. A. 570; Southern Ry. Co. v. Smith, 205 Fed. 360, 123 C. C. A. 488; Southern Ry. Co. v. Darnell's Adm'x, 114 Va. 312, 76 S. E. 291; Hardwick v. Wabash R. Co., 181 Mo. App. 156, 168 S. W. 328. Reversed. WIGHTMAN & HOUGH CO. v. NIVOIS. (Circuit Court of Appeals, Second Circuit. February 18, 1920.) No. 151. Trade-marks and trade-names 9-"Yankee" held lawful trade-mark. The word "Yankee" held a lawful subject of appropriation as a trademark for cigarette cases. 2. Trade-marks and trade-names 61, 71-Use for different goods held infringement and unfair competition. Where complainant was granted by defendant an exclusive license to manufacture and sell cigarette cases under a patent, but limited to those made of certain metals, and built up a trade under the trade-mark "Yankee," and using distinctive ornamentation of the articles and marking of the containers, the use by defendant, on cases made and sold by himself of different metal, of the trade-mark, ornamentation, and marking of complainant, held an infringement and unfair competition. Appeal from the District Court of the United States for the Southern District of New York. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (264 F.) Suit in equity by the Wightman & Hough Company against Victor Nivois. From an order denying a preliminary injunction, complainant appeals. Reversed. The action is to restrain infringement of trade-mark and unfair competition. Defendant owned a patent on a cigarette case. In July, 1917, plaintiff became the exclusive licensee under said patent for the "manufacfacture and sale" of cases made under the patent, provided that said cases should be made only of "German silver, sterling silver, gold-filled, and solid gold, but no other metal or materials." Under the license agreement defendant became entitled to royalties guaranteed not to be less than $500 a year. Thereafter plaintiff manufactured under the license, advertised the cases so made, and has proved an existing business showing reasonable growth, until the defendant began to compete in the manner complained of. Plaintiff's cigarette cases were sold under the trade-name of "Yankee," which name the defendant first suggested. They are ornamented externally and internally in a peculiar manner, and packed for distribution in a box displaying on its outside a picture of the cigarette case and the name "Yankee." It is proved that defendant drew the license as he did because he expected and intended to make or have made cigarette cases under his patent of cheaper materials than those ordinarily used by plaintiff, whose business is largely that of jewelers. In 1919 defendant caused to be made and sold a cigarette case, said to be composed of brass coated with nickel, which he ornamented in substantially the same way as were plaintiff's "Yankee" cases; he called them by the name "Yankee," and packed each case for distribution in a box which is almost a fac simile of the one used by plaintiff. Thereupon this action was brought, and application made for injunction, which was denied. This appeal followed. Albert M. Austin, of New York City (Irving M. Obrieght, of New York City, of counsel), for appellant. Richard B. Cavanagh, of New York City (J. Granville Meyers and George G. Hyde, both of New York City, of counsel), for appellee. Before ROGERS, HOUGH, and MANTON, Circuit Judges. HOUGH, Circuit Judge (after stating the facts as above). [1] In the absence of any showing of earlier appropriation, plaintiff had per fect right to use "Yankee" as a trade-mark for cigarette cases. Cf. Scandinavia, etc., Co. v. Asbestos, etc., Co., 257 Fed. 937, C. C. A. —. [2] That defendant suggested the name as a good one is immaterial. A trade-mark is appurtenant to a business, and the question argued at bar is: Whose was the business of dealing in "Yankee" cigarette cases? It is quite true that a trade-mark may belong to a dealer in, and not to the manufacturer of, the goods known by the trade-name (Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526), and defendant, who bought "Yankee" cases from plaintiff in considerable quantities, seeks to occupy that position. He is not sus tained by the evidence; on the contrary, we find that the business of making and selling these articles was the plaintiff's business, and not the defendant's. Nor is it material that the cases are made under a patent owned by defendant. A licensee may build up a business in the patented article and create a trade-mark by his efforts, which will even remain his after the expiration of the patent. President, etc., Co. v. Macwil |