FRIZZELL v. UNITED STATES. (Court of Appeals of District of Columbia. Submitted October 8, 1924. Decided November 3, 1924.) No. 4044. 1. Infants 20 Informations charging defendant with contributing to delinquency of minor held defective. Informations charging that defendant contributed to the delinquency of named minor under 17 years of age, in that he persuaded him to commit "an indecent and immoral act," and that such minor had been convicted of disorderly conduct and incorrigibility, held insufficient, in that it failed to show that child was convicted of offense to which defendant contributed. 2. Infants 20-Defendant, charged with contributing to delinquency of child, must have contributed to offense for which child has been convicted; "delinquent child." Under Juvenile Court Act, §§ 9, 24, defining "delinquent child" as one who has been convicted more than once of violation of law, and making one who contributes to the delinquency of such child guilty of a misdemeanor, the defendant must have contributed to or caus ed the minor to commit an offense of which he has been convicted. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Delinquent Child.] 3. Infants 20-Knowledge of child's character not essential element of offense of contributing to delinquency of minor. Accused's knowledge of child's character is not essential element of offense of contributing to delinquency of minor, under Juvenile Court Act, §§ 9, 24. 4. Infants 20-Defendant may be guilty of contributing to delinquency of child by acts committed before date of child's first conviction. Under Juvenile Court Act, §§ 9, 24, defining delinquent child as one who has been twice convicted, and making it a misdemeanor to contribute to delinquency of such child, defendant may be guilty of contributing to delinquency of child by acts committed before the date of the child's first conviction. 5. Infants 20-Statute making it a misde-. meanor to contribute to delinquency of child not limited to persons standing in loco parentis to child. Juvenile Court Act, § 24, declaring persons contributing to delinquency of a child guilty of a misdemeanor, is not limited to persons standing in loco parentis, though such persons are included specifically. 6. Criminal law ~576(2)-Nineteen months Richard Frizzell, alias Raymond Frizzell, alias Henry Vernon Anderson, was convicted of contributing to the delinquency of certain minors, and he brings error. Reversed and remanded, with directions to dismiss informations. A. R. Mullowny, of Washington, D. C., for plaintiff in error. F. H. Stephens, L. B. Perkins, and Alex. H. Bell, Jr., all of Washington, D. C., for the United States. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. MARTIN, Chief Justice. The plaintiff in error was made defendant in four informations filed in the juvenile court of the District of Columbia, charging him with contributing to the delinquency of certain minors under the age of 17 years, in violation of sections 9 and 24 of the Juvenile Court Act, 34 U. S. Stat. 73; D. C. Code, appendix, p. 387. The defendant filed demurrers and motions to quash to each of the informations, all of which were overruled by the court. The case was then heard, the defendant was adjudged guilty upon each information, and was sentenced upon each to three months in jail. This proceeding is brought to review that conviction. The present record includes all of the four informations, but inasmuch as the same questions are involved in all of them we will refer to the first only for the purposes of this opinion. That information, omitting the formal allegations, charged that the defendant, "on or about the 15th day of November in the year of our Lord 1921, with force and arms, at the District aforesaid, and within the jurisdiction of this court, did then and there unlawfully contribute to the delinquency of Francis Fowler, a minor under the age of 17 years, in that the said [defendant] did then and there persuade, encourage, entice, and decoy the said Francis Fowler to commit a misdemeanor, to wit, the commission of an inde cent and immoral act; the said Francis Fowler having theretofore been convicted more than once of having violated the laws of the United States, or the laws, ordinances and regulations in force in the District of Columbia, said convictions being in the ju venile court of the District of Columbia as Error to Juvenile Court of District of follows: November 22, 1921, Dis. Conduct, Columbia. Case No. 33830; November 22, 1921, Incor rigibility, Case No. form of the statute. 2 F.(2d) 398 It will be noted that the foregoing Information was filed on November 30, 1921, and charges the defendant with having unlawfully contributed to the delinquency of a minor under the age of 17 years, and having persuaded and encouraged him on November 15, 1921, to commit a misdemeanor, to wit, the commission of an indecent and immoral act, and furthermore alleges that on November 22, 1921, the said minor was convicted of disorderly conduct, and on the same day of incorrigibility, in the juvenile court of the District. 33838-against the precede any conviction of the child, but they do not become punishable under the statute unless and until the child be twice convicted, nor unless the accused contributed to at least one of the offenses for which the child is convicted. It is manifest that under the act if a child should be guilty of many violations of the law but never be convicted of any of them, he would not become a "delinquent"; nor would a person who encouraged him to commit the offense in such case be guilty of contributing to the "delinquency of such child." And similarly if a child be convicted of one or more misdemeanors, and thereafter commits others of which he is never convicted, the latter could not be considered in passing upon the question of the child's delinquency, nor upon an information charging a defendant with contributing thereto. [1] In our opinion the information aforesaid is defective, and the demurrer thereto should have been sustained. We here copy those portions of the Juvenile Court Act which apply to the present question, to wit: "Sec. 9. The term 'delinquent' child or children as used in this Act shall be held to mean and include any child who has been convicted more than once of violating any law of the United States, or any laws, ordinances, or regulations in force in the District of Columbia. "Sec. 24.-That in all cases where any child shall be found to be a delinquent child, as defined in section nine of this Act, the parent or parents, legal guardian, or person having the custody of such child, or any other person responsible for or by any act encouraging, causing, or contributing to the delinquency of such child, shall be guilty of a misdemeanor. [2] Under the foregoing provisions the term "delinquent child" designates a child who has actually been convicted of two or more violations of the laws of the United States, or of the laws, ordinances, or regulations in force in the District of Columbia. And correspondingly the clause, "person responsible for or by any act encouraging, causing, or contributing to the delinquency of such child," applies only to a person who encourages or causes a child to commit any of the misdemeanors, the conviction of which makes the child a delinquent. other words the statute defines a delinquent child to be one who has been convicted more than once of violating the law, and provides a punishment for any person who contributes to that delinquency. The delinquency thus referred to must be one which makes the child a delinquent, to wit, one of the offenses of which the child is convicted. The acts of the accused in such case may In These considerations effectually dispose of all of the informations now in question, for none of them contains an allegation that the child therein named was ever convicted of the offense to which the defendant is alleged to have contributed. In the first information it is charged that on November 22, 1921, the child therein named was convicted of two offenses, to wit, disorderly conduct and incorrigibility. But the information contains no statement which connects those convictions with the misdemeanor which the accused is said to have contributed to, to wit, an indecent and immoral act committed on November 15, 1921. is stated in the brief of the government that the offenses were identical, but this statement can not serve to supply the omission of such an allegation in the information. It may be noted also that a bill of exceptions is included within the record, but no statement upon this subject appears therein. The informations consequently were defective, and the conviction of the defendant thereunder cannot be sustained. It [3-5] Certain other objections were presented by the defendant, upon which we may note an opinion. It was objected that the information failed to aver that the defendant, at the time of his alleged offense, knew that the child was a delinquent child. This objection was rightly overruled, for knowledge of the child's character by the accused is not an essential element of the offense, and, furthermore, a person may be guilty of contributing to the delinquency of a child by acts committed before the date of the child's first conviction. It was also objected that the informations failed to state statute. [6] Objection was made because of the fact that the prosecution was continued on call in the lower court for a period of about 19 months after the motion to quash and the demurrer were overruled, and that the defendant was then called before the court for judgment and sentence. It is said in the briefs that during this interim the defendant was serving a term in the penitentiary, to which he was sentenced by the Supreme Court of the District. We do not think that this delay under these circumstances worked a dismissal of the case, nor deprived the court of jurisdiction over the defendant. These objections were rightly overruled. that the accused was a person responsible sistent with the manifest purpose of the for or having the care and custody of the child in question. This objection rests upon the opening clause of section 24, supra, which, when defining the offense, provides that "the parent or parents, legal guardian, or person having the custody of such child, or any other person responsible for or by any act encouraging, causing or contributing to the delinquency of such child," shall be punished as therein stated; the contention of the defendant being that the statute relates only to parents, legal guardians, or persons having the custody of children or in a position of responsibility for them, whereas the defendant did not belong to that class of persons. In our opinion, however, this language was not intended by Congress to limit the application of the section to persons of any given class, but for the purpose of declaring specifically that persons standing in loco parentis to any child should be included within the provisions of the act. Any other interpretation would be incon However, for the reasons above stated, we hold that each of the informations was insufficient to charge an offense under the act. The judgment of conviction is therefore reversed, and the cause is remanded, with directions to dismiss the informations. 2 F.(2d) 401 SLOSS SHEFFIELD STEEL & IRON CO. v. (Circuit Court of Appeals, Fifth Circuit. No- 2. Master and servant 257-Allegation convict was injured while working for mine owner implied relationship requiring care for convict's safety. Allegation that convict, in involuntary servitude in mine, was injured while performing work for mine owner, necessarily implied relationship requiring mine owner to exercise reasonable care for convict's safety. 3. Master and servant 258(15)-Allegation negligence of mine owner's agent caused Injury to convict in service held to warrant recovery. Allegation that negligent act of mine owner's agent, operating motor and coal cars, resulted in injury to convict in involuntary servitude in mine, held to justify recovery by con vict. 4. Master and servant 286(19)-Evidence negligence of mine owner's agent caused injury to convict in involuntary servitude held sufficient to go to jury, and to warrant verdict for plaintiff. Evidence that negligence of mine owner's agent in operating motor and coal cars caused injuries to convict, in involuntary servitude in mine, held sufficient to go to jury, and to warrant verdict for plaintiff. In Error to the District Court of the United States for the Northern District of Alabama; William Q. Grubb, Judge. Action by Henry Brewer against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant brings error. Affirmed. Wm. M. Rogers, Chas. E. Rice, and E. L. All, all of Birmingham, Ala. (Tillman, Bradley & Baldwin, of Birmingham, Ala., on the brief), for plaintiff in error. J. Reese Murray, of Birmingham, Ala. (James H. Willis, of Birmingham, Ala., on the brief), for defendant in error. Before WALKER and BRYAN, Circuit Judges, and ESTES, District Judge. ESTES, District Judge. The plaintiff recovered a judgment for personal injuries received by him when working as a convict in a mine of the defendant. The pertinent 2 F. (2d)-26 portions of the count on which the case was tried are as follows: "On the 30th day of January, 1922, the defendant was engaged in the operation of an underground coal mine at or near Flat Top, in Jefferson county, Alabama, and in connection therewith maintained and used a main haulage way, along which tracks were laid, over which tracks empty and coal-laden trips or trains of cars were drawn by means of electric motors operated by the agents of the defendant in that regard. Plaintiff further avers that upon the date aforesaid, he was a convict in said mine, and was lawfully therein, under the control of the defendant, and engaged in and about the business of the defendant. And plaintiff further avers that upon the date aforesaid, in and upon said haulage way, three or four empty cars, constituting part of a train of empty cars attached to an electric motor, were off the track upon which the remainder of said train was standing, and that while he, the said plaintiff, being then and there under the control and direction of defendant, as aforesaid, was engaged in an effort to get said cars back upon the aforesaid track, the electric motor started and dragged the said cars against plaintiff, whereby he was thrown beneath the same and rolled or dragged a great distance. Plain tiff avers that one Spencer, whose name is to plaintiff otherwise unknown, was then and there the agent of the defendant in charge and control of said electric motor, and that all plaintiff's said injuries and damages were proximately caused by reason of the negligence of said Spencer while acting within the line and scope of his authority and duties as such agents, and that said negligence consisted in this: The said Spencer, while acting within the line and scope of his authority and duties as agent as aforesaid, negligently caused or allowed plaintiff to be dragged as aforesaid." [1] One of the two assignments of error is that the trial court should have sustained a demurrer to this count, upon the ground that it does not allege facts respecting a relationship between the parties that would render the plaintiff in error responsible for simple negligence. The point is made that facts should be set forth to show by what arrangement it was necessary or proper for the defendant in error to be in the mine, and in and about the business he was performing, at the time he was injured. We do not think the assignment should be sustained. When simple negligence is the basis of the cause of action, the plaintiff should allege facts that demonstrate that he was rightfully in the performance of duties assigned to him, and under the direction and control of the defendant. In that state of affairs, an averment that he was injured by the defendant's negligence states a cause of action. Sloss-Sheffield Steel & Iron Co. v. Weir, 179 Ala. 227, 60 So. 853. [2, 3] The allegations here that the defendant in error was a convict, and at the time of his injury was under the control of the plaintiff in error, at work in connection with the business of the plaintiff in error, in an effort to get cars that had been derailed in the haulage way of the mine back upon the track, necessarily imply a relationship that required the plaintiff in error to exercise reasonable care for his safety. The subsequent allegation that the agent negligently caused the motor to move, and the defendant in error to be injured, when so employed, would, if proven, justify a recovery. More than that, there does not appear to have been any controversy during the trial that the defendant in error was lawfully at work in the mine. [4] It is contended, in the second assignment, that the case should not have been submitted to the jury, and that therefore the trial court erred in refusing, at the close of the testimony, a general affirmative charge requested by the plaintiff in error. The evidence in behalf of the defendant in error tended to show that this man, with several others, was assigned to work in a narrow space some three or four feet-between two tracks, on one of which was a train of loaded cars, and on the other a train of empty cars, some of which latter class had been derailed. An effort was being made to put the derailed cars upon the track by pushing them as an aid to the motor, which for some reason, when manipulated by the "trip rider," failed to move them, in consequence of which the regular motorman, who had been at work with the defendant in error, took charge of the motor, leaving the defendant in error and others at their task in the narrow space between the loaded train and the derailed cars. This motorman knew of the position of the parties and of the necessity to move the string forward slowly and gradually. Instead of that, he caused the motor to move backward in order to get slack between the ears, and then started them forward in a way that caused an unusual jerk and rate of speed. This in turn was the cause of the defendant in error falling and sustaining injuries. The motorman did not at first receive certain signals that were given for him to stop the train. The signals were relayed in some fashion, and finally gotten to him from a man in front of the motor. The delay thus occasioned caused the string of cars to be dragged for an unnecessary distance, with the defendant in error under them. The evidence thus presented, although contradicted in important details by the evidence for the plaintiff in error, in our opinion is sufficient to raise the issues of fact which the trial court, under appropriate instructions, submitted to the jury. The verdict comprehends a finding that the man on the motor was in fault, either in starting the motor "too fast or too hard," or in failing to stop it in consequence of not getting the signal when he should have gotten it, or, after getting it, in not stopping it within a proper distance. Our conclusion is that there is evidence to sustain these findings, and it follows that there was no error in refusing to give the affirmative charge requested. It is therefore ordered that the judgment of the trial court be affirmed. BARTON et al. v. REX-OIL CO., Inc. (Circuit Court of Appeals, Third Circuit. October 21, 1924. Rehearing Denied December 1, 1924.) No. 3079. I. Trade-marks and trade-names and unfair competition 3(4), 67-Unfair competition in use of name. A descriptive name, though not capable of exclusive appropriation as a technical trademark, may by use and association with a commodity obtain a secondary significance, denoting that the goods bearing it come from one source, and thus a superior right to its use may be acquired by the person who first adopted it; but the utmost he can insist on is that no one shall use it against him in an unfair way. 2. Trade-marks and trade-names and unfair competition 93(1) Unfair competition not presumed, but must be proved. A technical trade-mark being treated as property, infringement thereof carries with it the presumption of fraud; but where no exclusive right to the use of the mark exists, fraud, or unfair competition, in the use of the mark by another, must be proved, and not its use, but the unfair method of its use, is all that can be enjoined by the courts. 3. Trade-marks and trade-names and unfair competition 3(4)-"Dyanshine" held descriptive, and invalid as trade-mark for leather. polish. The name "Dyanshine," as applied to a leather dressing, is a collection of several words, misspelled, which are merely descrip |