Schreiber & Sons v. Charles Sharpless & Sons , 6 F. 175 ( 1881 )

Butler, D. J.

At the trial, the. court, after referring to the fact that suit is against the firm of Charles Sharpless & Sons, charged that the claim of the plaintiffs is twofold,— First, for copying the picture, and second, for qrablishing the copies. . That as respects the first, the evidence shows the copying to have been done by the firm’s employe, Mr. Thornton, without its assent or knowledge, and that it was not, therefore, responsible for his act; that the suit being brought to recover a penalty, the doctrines of principal and agent, which prevail in civil transactions, are inapplicable. That as respects the claim for publishing, if it be admitted that the term “publish,” as employed in the statute, has reference to pictures, there is no evidence that the defendants published the copies procured by Mr. Thornton; that, as the evidence shows, a number of the copies were taken to the store by Mr. Thornton, and others sent to the dyers, where they were affixed to goods, which were subsequently taken to the defendants’ store; that Charles Sharpless first saw the copies when the goods arrived, and was then informed of Mr. Thornton’s acts in procuring them; that a part of the goods were subsequently sold, with the labels attached; that the'publication of the copies had been made by Mr. Thornton and the dyer, before the attention of Mr. Sharpless was called to the subject; and that the other members of the firm never had any knowledge respecting it. The jury was, therefore, instructed that the evidence did not warrant a recovery, and to render a verdict for the defendants.

The only question presented on the trial, and the only question now presented, is, can the defendant's be held responsible, under the statute, for what was done by its agent or agents, in pursuance of their employment, without its knowledge? On the trial I believed it could not; and after hearing the plaintiffs’ counsel on this motion for a new trial, I believe so still. The case of Stockwell v. U. S. 13 Wallace, 548, draws a distinction between remedial, or compensatory statutes, and penal statutes. That the statute here involved is penal, is not open to doubt.

If the suit might be regarded as against the several members of the firm individually, and a recovery be sustained against Charles Sharpless alone, for publishing, a question might possibly arise whether the case should have gone to the jury, as upon a suit against him only. No such claim having been made, however, at the trial, this aspect of the case -was not considered. As the record stands, T incline to believe the claim, if made, must have been denied.

The rule, therefore, is discharged.

McKennan C. J. concurred.