1 sufficiently averred that the decased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce; that his death resulted from the negligence of the company" -while it was also so engaged; and it is held that an amendment to a petition showing only the capacity in which one prosecutes a cause of action, without in any way modifying or enlarging the facts upon which it was originally brought, is not the statement of a new cause of action, and falls clearly within section 954 of the Revised Statutes of the United States (Comp. St. 1916, § 1591). This accords with the rule held in Cahill v. Railway Co., 137 Iowa, 577, 115 N. W. 216; and Myers v. Railway Co., 152 Iowa, 330, 131 N. W. 770, and other cases. The Wulf Case is clearly distinguishable upon its facts from this. The original petition there stated facts which clearly alleged a cause of action under the Employers' Liability Act of Congress, and the amendment only alleged the right of the plaintiff, as administratrix of her deceased son, to bring the action under that act, made while the action was pending and but little more than a month after the two-year limitation of the Employers' Liability Act had expired. In the present case the action arose December 8, 1908, was founded upon the common law of negligence, for an injury to a servant by the negligence of the master; the case was tried and judgment rendered in the Circuit Court in May, 1912; the final decision of the Court of Appeals was May 15, 1913; the petition for certiorari denied by the Supreme Court October 20, 1913; the mandate from the Court of Appeals filed in this court October 25, 1913; and the amendment under consideration filed November 27, 1914, stating for the first time a cause of action based upon the Liability Act of Congress, a clear departure from the right of recovery alleged in the original petition, to a right of recovery under an act of Congress, and filed nearly six years after the cause of action arose. There seems to be no escape from the conclusion that, if the two-year limitation prescribed by the Employers' Liability Act, in which actions to recover thereunder must be brought, has any force, the cause of action alleged in this amendment was barred when the amendment of November 27, 1914, was filed, and cannot be maintained. Railway Co. v. Wyler, 158 U. S. 285, 296, 15 Sup. Ct. 877, 39 L. Ed. 983; Garrett, Administrator, v. L. & N. Ry. Co., 235 U. S. 308, 35 Sup. Ct. 32, 59 L. Ed. 242; Atlantic Coast Line Ry. Co. v. Burnette, 239 U. S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226; Whalen v. Gordon, 95 Fed. 305, 309, 37 C. C. A. 70; Van de Haar v. Van Domseler, 56 Iowa, 671, 676, 10 N. W. 227; Box v. Railway Co., 107 Iowa, 660, 78 N. W. 694; Lang v. Choctaw, O. & G. R. Co., 198 Fed. 38, 45, 117 C. C. A. 146; Galesburg & E. Ry. Co. v. Hart, 221 Fed. 7, 12, 136 C. C. A. 533; Bravis v. C., M. & St. P. Ry. Co., 217 Fed. 234, 237, 133 C. C. A. 228. In Railway Co. v. Wyler, 158 U. S. 290, 15 Sup. Ct. 879, 39 L. Ed. 983, above, Mr. Justice White stated the rule that must control in this case. He said: "The legal principles by which this question must be solved are those which belong to the law of departure, since the rules which govern this subject afford the true criterion by which to determine the question whether there is a new cause of action in case of an amendment. In many of the states which have adopted the code system great latitude has been allowed in regard to amendment; but even in those states it is held that the question of what constitutes a departure in an amended pleading is nevertheless to be determined by the rules of common law, which thus furnish the test for ascertaining whether a given amendment presents a new cause of action even although it be permissible to advance such new cause [of action] by way of an amendment. * In Whalen v. Gordon, 95 Fed. 305, 308, 37 C. C. A. 70, 74, Judge Sanborn, speaking upon the same question, said: "An amendment to a petition which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different * * demand, not before introduced or made in the pending suit, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed." The situation of the plaintiff here is apparently much like that of the plaintiff in Garrett, Administrator, v. L. & N. Ry. Co., 235 U. S. 308, 35 Sup. Ct. 32, 59 L. Ed. 242, above, save that in that case the plaintiff was given opportunity by both the trial court and the Circuit Court of Appeals to so amend his petition as to show his right to recover under the Liability Act of Congress, but declined to do so, and the judgment accordingly went against him. The Supreme Court denied an application to remand the case that such amendments might be made, saying: "The request is now made that in view of all the circumstances-especially the former undetermined meaning of the statute this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted." Counsel for plaintiff urge in argument that the question involved upon this demurrer is one solely of state practice and procedure, and cite in support of such contention, the following cases: Basham v. Chicago G. W. Ry. Co. (Iowa) 154 N. W. 1019, on rehearing 157 N. W. 192; Knight v. Railway Co., 160 Iowa, 160, 140 N. W. 839; Collins v. People's Power Co., 223 Fed. 47, 138 C. C. A. 411 (Court of Appeals this Circuit); and some others. It is sufficient to say of all of these cases that they involve a construction of the statute of limitations of the state of Iowa or other local statutes or rules of practice in that state. In Knight v. Railway Co., 160 Iowa, 160, 140 N. W. 839, the cause of action arose under a statute of Illinois, and the question involved was whether or not the action was commenced in Iowa within the time required by the statute of Illinois to recover damages under the Illinois statute, and was therefore a construction of the statute of Iowa as to how and when an action in that state is to be commenced. 241 F.-26. The cause of action in Collins v. People's Power Co., 223 Fed. 47, 138 C. C. A. 411, also arose under the same Illinois statute involved in the Knight Case. The Court of Appeals, this Circuit, simply followed the rule in the Knight Case, upon the ground that the construction of the Iowa statute in that case was controlling upon the federal courts in Iowa. In the Basham Case it was held that an amendment which defendant challenged as stating a new cause of action, if necessary at all, simply enlarged or made more specific the allegations of the original petition. [3] Whatever may be said of the Knight Case and other Iowa cases, they have no controlling effect upon the federal courts in Iowa, or elsewhere for that matter, where the cause of action is based upon an act of Congress; for the opinion of the Supreme Court of the United States construing the Employers' Liability Act, or other acts of Congress, is controlling not only upon the federal courts, but the state courts as well upon the construction and interpretation of the laws of Congress. Central Vermont Ry. Co. v. White, 238 U. S. 507, 511, 35 Sup. Ct. 865, 867 (59 L. Ed. 1433, Ann. Cas. 1916B, 252) and the cases there cited. In this case Mr. Justice Holmes, speaking for the Supreme Court upon this question, said: "There can, of course, be no doubt of the general principle that matters respecting the remedy-such as the form of the action, sufficiency of the pleadings, rules of evidence, and the statute of limitations-depend upon the law of the place where the suit is brought. McNiel v. Holbrook, 12 Pet. 84 [9 L. Ed. 1009]. But matters of substance and procedure must not be confounded because they happen to have the same name. For example, the time within which a suit is to be brought is treated as pertaining to the remedy. But this is not so if, by the statute giving the cause of action, the lapse of time not only bars the remedy but destroys the liability. Phillips v. Grand Trunk Ry., 236 U. S. 662 [35 Sup. Ct. 444, 59 L. Ed. 774]; Boyd v. Clark (C. C.) 8 Fed. 849; Hallowell v. Harwick, 14 Mass. 188; Cooper v. Lyons, 77 Tenn. (9 Lea) 597; Newcomb v. The Clermont No. 2, 3 G. Greene (Iowa) 295. In that class of cases the law of the jurisdiction, creating the cause of action and fixing the time within which it must be asserted, would control, even where the suit was brought in the courts of a state which gave a longer period within which to sue." The demurrer to the amended petition filed November 27, 1914, should be and is sustained; and it is so ordered. On Rehearing. The plaintiff has filed a motion to set aside the ruling sustaining the demurrer to the amended petition of November 27, 1914, and to overrule said demurrer. The case of Seaboard Air Line Railway v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1006, is cited in support of the motion, and it is said in plaintiff's brief "that the amended petition of November 27, 1914, is squarely within the Renn Case." In that case the suit was brought in a state court of North Carolina; the original petition was very brief, but alleged "that the defendant was operating a line of railroad in Virginia, North Carolina, and elsewhere, that the plaintiff was in its employ, that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant's trains, and that the injury was sustained at Cochran, Va., through the defendant's negligence, etc." During the trial the defendant sought some advantage because the complaint did not sufficiently allege that at the time of the injury the defendant was engaged and the plaintiff employed by it in interstate commerce, and the trial court upon motion of the plaintiff permitted the petition to be so amended as to state specifically that the defendant was engaged and the plaintiff employed by it in such commerce, and it was conceded by both parties that what was alleged in the amendment was true in fact and conformed to the proofs, and that point was thereafter treated as settled. The Supreme Court said: "Of course, the right of action could not arise under the laws of North Carolina, when the causal negligence and the injury occurred in Virginia; and the absence of any mention of the laws of the latter state was at least consistent with their inapplicability. * In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although imperfectly, to a cause of action under the law of Congress. And, this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action and related back to the commencement of the suit." etc. The facts alleged in the original petition, however, show inferentially at least that the railway company was engaged in interstate commerce, and that the plaintiff was injured through its neglect while in the line of his duty as an employé in such commerce, and the amendment which the trial court allowed only stated more in detail the engagement of the defendant and the employment of the plaintiff by it in such commerce. Furthermore the amendment was applied for and allowed during the trials and before the verdict, to conform the pleadings to the proofs. In the present case it may be admitted that the petition sufficiently alleges that the defendant railway company was operating a line of railroad in and through the states of Illinois and Iowa; but there is an entire absence of any allegation that the train on the branch line between New Sharon and Newton, both points in Iowa, was a train running from points in Iowa to points beyond that state, which it is alleged was negligently handled by defendant's employés; nor is there a word to indicate that the plaintiff was employed in operating that train, or any other train of the defendant, in interstate commerce, or that the baggage he was handling was to be carried in such commerce. Further than this the request to file the amendment of November 27, 1914, was not made; and the same was not filed until more than a year after the case was finally determined in the Court of Appeals, and a petition for rehearing in that court, and for certiorari in the Supreme Court of the United States, had each been denied, and some six years after the injury. I am unable to believe that under those circumstances an amendment to the petition filed at such late date can save the cause of action first alleged therein from the bar of the statute under the act of Congress or the statute of the state of Iowa. The petition or motion for rehearing must be and is denied. It is accordingly so ordered, and plaintiff excepts. 1. COPYRIGHTS EICHEL et al. v. MARCIN et al. (District Court, S. D. New York. April 2, 1913.) 39-EXTENT OF MONOPOLY-PLAY. A copyright does not give a monopoly in any incident in the play, but protects only the arrangements of the words, and permits other authors to exploit the general ideas, provided they do not substantially cover the form in which they have been developed, since the object of copyright is to promote science and the useful arts, and permitting the copyright to withdraw the ideas or conceptions of the copyrighted article from the stock of materials to be used by other authors would narrow the field of thought open for development. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 39.] 2. COPYRIGHTS 65-INFRINGEMENT INCIDENT OF PLOT. In a suit to restrain the infringement of the copyright of a dramatic play, defendants' play held not to copy from plaintiffs' play any plot, scene, dialogue, or characters, aside from general features of the plot, which were clearly open to common use. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 62.] 3. COPYRIGHTS 85-PRELIMINARY INJUNCTION-INFRINGEMENT OF COPYRIGHT. A preliminary injunction should not be granted for the infringement of a copyright after months of delay, where it appears that defendants did not know of the existence of plaintiffs' work until the commencement of the suit. [Ed. Note.-For other cases, see Copyrights, Cent. Dig. § 78.] In Equity. Suit by Charles Gerard Eichel and another against Max Marcin and others for the infringement of a copyright. On motion for injunction pendente lite. Motion denied. Ruskay & Ruskay, of New York City, for plaintiffs. MANTON, District Judge. The defendant Max Marcin claims to be the author of a play registered for copyright called "Cheating CheatThe defendant Woods produced the play on the 9th of August, 1916, at the Eltinge Theater, New York City, where it has been playing since. The Eltinge Theater is controlled by the A. H. Woods Theater Company. Woods is the president and general manager of the Cheating Cheaters Company. The plaintiffs claim they are the sole and exclusive proprietors and owners of a satirical melodramatic farce or play entitled "Wedding Presents," written and composed by them jointly, that it has never been published or produced in this or any foreign country, and that it was copyrighted under the copyright law of the United States under the title of "Wedding Presents" on the 18th of December, 1915. The latter part of January, 1916, the plaintiffs submitted a copy of this play entitled "Wedding Presents" to the defendant Woods, by leaving a copy thereof at his office, the Eltinge Theater, with a Mr. Hoffenstein, then connected in business with said defendant. This dramatic composition was returned to the plaintiffs about two months later. The For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |