The Advertiser (Adelaide, SA : 1889 - 1931)(about) |
Previous issue
Thursday 15 May 1902
Next issue
Send to:
|
1 correction by anonymous - Show corrections
SUPREME COURT-CIVIL SITTINGS.
Wednesday, May 14.
(Before his Honor the Chief Justice.)
The hearing of the case Walker v. Wal- ker and another was resumed at the Supreme Court on Wednesday. The peti- tioner, Hugh Alexander Walker, a railway porter, sued for a divorce from his wife, Rosina Walker, on the grounds of her mis- conduct with Richard James Hutchens, the district clerk of the locality. Mr. G. De- genhardt for the petitioner, Mr. R. Hom- burg for the respondent, and Mr. J. C, Hamp for the co-respondent.
Charles James Mellor, teller of the Bank of Adelaide, a witness, of 34 years' ex- perience as a judge of handwriting, said that the two envelopes produced appeared to bear the same handwriting. He thought that the letter produced was in the same handwriting, but disguised.
Edith Lowther deposed to receiving a certain letter from the Orroroo post-office.
Mr. Degenhardt applied to put the let- ter in, but the Chief Justice ruled against
its admission.
Witness said that she went to live at the Walkers just before Christmas in 1899. She was on very friendly terms with Mrs. Walker, but did not sleep in her house, always going home at night. Wit- ness's home was further from the township than the co-respondent's. When she went home at night Mrs. Walker occasionally went with her. It was generally half-past 7 o'clock when she left the Walker's house, and they frequently met Hutchens at his gate. Mrs. Walker would stay there, and witness would go home alone. Mrs. Walker generally came to her home, where she lived with her grandmother, after an interval of an hour or less. Mrs. Walker had told her that co-respondent always took her home, so it was unnecesssary for anyone else to accompany her. She generally left witness's house at about 9 o'clock. Respon- dent always called co-respondent ''Dick" when speaking of him, and had said that she thought a lot of him, and liked him better than her own husband. She never spoke well of her husband, and once she said that she wished he would never come home and that some- thing would happen to him. She remem- bered respondent going to Adelaide last Easter and on her return she met her at the station. After she got home respon- dent asked witness if petitioner had said anything about her being away at the same time as co-respondent and she re- plied, "No." Respondent had further said that Hutchens met her on her arrival in Adelaide with the greeting, "Hullo! Here you are." He remarked that he would have to keep out of sight, as there were so many Orroroo people in Adelaide at that time. They went to co-respondent's hotel and had a drink, and Hutchens said that they could not stay there because of
the Orroroo people about. He went and
found accommodation at a Coffee Palace, and respondent told her that they stayed there as man and wife and addressed one another as husband and wife. They had a "very nice time," in the words of the re- spondent to the witness. On one occasion when at her grandmother's respondent told her that petitioner was going to dress up and frighten her on her way home, and she asked witness if she would mind going to a corner beyond Hutchens' house with
her. She did so, and saw Hutchens under his verandah. Mrs. Walker went in to tell him, and he came out to the gate, where witness was standing. He seemed as if he had had some drink, because when he came out he said, "Hello, my little dear, how are you?"' Mrs. Walker told her that peti- tioner had spoken to co-respondent, and had threatend to hit him on the head with a stick because of familiarity with his wife.
By Mr. Homburg-Witness left the em- ploy of Mrs. Walker about October, 1900.
By Mr. Hamp-While she was in service in respondent's house Mr. and Mrs. Wal- ker did not live on good terms. She left Mrs. Walker's service because of certain remarks made by that lady about her.
Stanley Barber said that on his way home from the bakery where he worked he had four times seen Mrs. Walker go into the front door of Hutchens' house be- tween 9 and 10 o'clock at night. He gave the dates of these visits, and when ques- tioned concerning his reason for remember- ing them he said that the "lads" in the town were talking about the relations be- tween the two, so he determined to get as much information as possible. On the last occasion (Oc- tober 2) he saw the respondent and co- respondent talking in the garden about 200 yards from the house. He watched and saw Hutchens enter his house, follow- ed at about 50 yards distant by his com- panion. He had communicated the dates to Mr. Walker, at the latter's request.
Augusta King Dowie said that she lived opposite to Mrs. Walker. On the night of October 23 Mrs. Walker, dressed in a flannelette nightdress, and without shoes or stockings, came to her house and asked to be let in, as her husband had turned her out. Witness said that she did not
know whether she would be doing right
and that they had better go to the police officer's. Whilst they were going thither they met Mr. Walker, who told her that he had done with his wife, as he had found a man in the house with her. Witness
said that she did not know whether she would be doing right in sheltering the re- spondent, but petitioner said that she must have shelter for the night. Witness said she must have some clothes, and petitioner replied by returning to the house and fetching out her clothes. As he gave them to her he said, "Poor woman, you are cold. Would you like to cling to me?" His wife replied, "Yes," and he continued,
"But I have done with you for ever." Mrs. Walker stayed with her that night.
By Mr. Homburg-Mrs. Walker had de- nied that co-respondent was present in the house when charged with it in presence of
witness.
Alfred David Gray, of Orroroo, carrier, said that on the evening of October 23 Walker called at his house to get a horse, but he did not see him on that occasion. Earlier in the day witness had lent him a horse to go to Peake Vale anniversary, and at 9 o'clock in the evening or a little after he returned the animal.
By Mr. Homburg.-He was not prepared to say that he had heard anything against Mrs. Walker's character prior to the insti- tution of the present action.
William John Jacka, the proprietor of the Coffee Palace on North-terrace, pro- duced a record of his guests, and on April 12, 1900, the name of Mrs. Walker did not appear. Only four rooms were occupied by married couples that night, and of the four couples he knew all save one couple, who were booked as Mr. and Mrs. Rogers. On the previous day Mrs. Walker said to
him, "Don't you remember me staying at your house? I have stayed there several times; on one occasion for a week with husband."
By Mr. Hamp-He did not think it pro- bable that respondent and co-respondent were the couple who occupied the room on the day in question, because the room was booked before mid-day dinner.
Edward Kelly Walker, brother of peti- tioner, said he was ordered to "relieve" at Orroroo on February 16, 1901. At 6 p.m. on that day he went to the petitioner's house, and saw respondent there. He
stayed at the house during his brother's absence from the township, and occupied a bed in the kitchen during the nights. The weather was very warm, and he slept with the window wide open. At about mid- night on February 16 he was looking out of the window, and saw a man come in from the direction of the side gate and go to the window of the room occu- pied by the respondent and knock on it. Witness saw the respondent through the
open doors of the two rooms. She got out of bed and went to the window. He heard nothing said, but the man left. The man was co-respondent, but at that time he did not know him. On the following day he saw him again about a couple of hundred yards from the house, and he asked Mrs. Walker who he was. She replied, "Mr. Hutchens, the clerk of the council." After the occurrence referred to respondent called witness, and said that a man was knocking at the window. Witness replied that the man had gone.
By Mr. Homburg-He had made no com- munication on the subject to anyone with the exception of Mr. Degenhardt on Mon- day last. No one knew the evidence he had to give until then. He was subpoenaed before Monday last, but he had never told his brother what had occurred. The only way he could account for his brother's knowledge of the evidence he had to offer was that the respondent must have told
her husband about it.
By Mr. Hamp-At breakfast on the morning after the incident he had related the respondcnt said to witness that it was strange that a man should come to her window the first night after her husband had left. Nothing else of the kind hap- pened whilst he was there. Re-examined -He did not tell his brother, because it was a case of suspicion with no evidence. He
had expressed no surprise at seeing a man tapping at the window, because when he arrived at Orroroo several boys wanted to know where Walker was, and on hearing that he had gone for his holidays one of
them remarked that Mr. Hutchens would have fine times while he was away.
Agnes May Kirkwood deposed that she had seen co-respondent and respondent to-
gether at the district office with the door closed so that it could not be opened from the outside except with a key. The visits lasted on more than one occasion for about an hour. On December 21, 1899, she was in the front verandah of her house between 8 and 9 o'clock p.m. There was a light in the district council office at the time. Previous to this time she had seen co respondent go in, and whilst under t verandah .«he saw bim come out again. . he passed her house he said to her moth who was willi her, that it was too li to work, and he was going home. Ile c no1 do so, but returned to the office, a later witness saw Mrs j Walker turn in the lane leading to the rear of Hie distr office, and enter it by the back door, whi waa opened from within, and closed aft her. Witness and her mother then wc back to -the front of the building and loc ed at the windows?. There was a light i side, but after some minutes it was i tinguished, and witness returned to li house. At about 10 o'clock she saw Hi chens come out of the office and wn down the lane at the back of Hie buildir leaving Mrs-. Walker standing in the do< way. By-and-bye he returned sayir "It is all right; you can go now," and i spondent then went away. The lights
the council-room were ve-lighted and aga extinguished, and witness from the fro of her house saw Hutchens emerge fro the iront of theliouse and go away. Sin the proceedings had commenced she h
had "an interview with Hutchens. This ( currcd in January at witness's« house. T co-respondent asked her if she were goii down as? a witness for Mr. Walker. W ness? replied, "I do not know.'*' He sa that he heard she was going down to si lliat she had seen Mrs. Walker Visit hi at the council chamber, and witness replie "If I do go I shall, say that I have." Iii; chens made no reply.
At this stage the court was adjourm until half-past 10 o'clock this? morning.
(jjefore bit? Honor Mr. Justice Bundey.) Action for ¿/¡images and to Restrain frc
Use of Trade Secrets.
The action of Crowder v. Hilton, for i injunction restraining the defendant fro making use of or disposing of certain trad recipes», and claiming £500 damages
connection with the same, was continui from the previous day.
Sir Josifth Symon, with Mr. Cleland, f plaintiff, and ¡the Attorney-General (Ho J. II. Gordon), with Mr. J. K. Anderso
for defendant.
The Attorney-General, continuing his a dress, said plaintiff had himself diedos« the secrets, «s threo persons had given el dence lo the effect that they had seen ti book lying in the office. If it were co tended that the book had been left- whe its content;? could be perused by others ¡ the result of an inadvertence on Hie part
plaintiff' that would still deprive the fe muks of the character of secrets. He cit< Frost on Paten!: Laws and Practice, 18S p. 303. The fact that Crowder secure the services of Vandome and Hilton
check the working out of proportions, an that they ¡aw the contents of the book, an that Hilton had also usied it to check errol in materials and quantities in goods wliic had been returned, were also publication The law as laid down in Frost, r». 398, wt that any person who became possessed of secret, which was not a paient, could main facture, and if lie chos-*c to do so coul even go so far as to use the original titli This was shown in James v. James, 13 L.K Eq. Div., p. 424, and Cannon v. Jonen, 1 Itev. It., p. 10. He knew of no case whic would establish the principle .that a ma who acquired the knowledge of a trail secret without fraud could not use it. H further submitted that if the uecrets wet trade secrets,-and were not published, the would in that case be secrets of the cn: plover, and not Crowder's. The stn was made of the employer's materials an in their time. The product went out as? th manufacture of the company. h woul have been competent for Crowder to stipi late with the company that the method o ma nu facture should be his secret; bu there was no ouch stipulation. The ern plovers had the right to say how the coi dials should be made, and exercised tha right when they ordered the us>e of certai ingredients.
Mr. Cleland submitted that it was abun dautly proved that defendant improperly surreptitiously, and without plaintiff' knowledge or consent, copied the recipcc and sold one copy of the book. He con tended that the copy had been made "ii fraud" of the plaintiff's rights. There wai no doubt as to the plaintiff's ownership o the book in question. The book was thi final result of his labors and knowledge o the trade. Q'he sources of that knowledgi were his own experience of 28 years, and hu father's experience, which he had ratified Plaintiff's rieht consisted of tho existenci of an unpublished manuscript which wa: in his possession and the possession o: trade secrets. On the aspect of copyright he cited Lord Watson in Caird v. Sime, 12
An. C. p. 344.
His Honor, in giving judgment, said tin cas-e was absolutely the iirs-t of its ki uti which he had met with either while at th« bar on when on the bench. Ile was no1 aware that there had ever been an exact!« similar one before that court. Nor coulo he find one altogether analogous to it ir
the text-books. It sveemed to him that jl would be contrary to the principles of na- tural justice if no remedy existed in a cas« where it was shown that a person who was the owner of a lot of trade secret« in a book had, in fraud of his rights and with out his knowledge, been deprived of them by the wrongful action of a person in the position of defendant. It was not di.s puted that the s-ecrets* were valuable, and defendant had himself placed a consider- able value on them when he asked £7?. for a copy of the book, and actually re- ceived i'30 for it. The cases cited by de- fendant's counsel went to establish the fact that whatever property of a valuable char- acter one person had obtained by the gilt of another, and especially when he in- creased its value cither by adding to it or subtracting from it, he could hold against the world. So although plaintiff got most of the recipes from his father his right in. theni was not destroyed. A wrongful interference with the property which a person had in such a collection was on the same principle as trespass. These reeijies were in fact the living of plaintiff, and the question arose-had he by any acts of his own parted with his rights in them? If he laid his watch on a table in a place where he was working that would not give to any other employe the right .to wear and use the watch. The case was even stronger, as it deprived the rightful owner of that in which ins living consisted. Ile regretted that a young man in the position of defendant should have acted in the way he had done. His conduct had been both dishonest and dishonorable. It was as bad as talcing a man's property and applying 't to his own use to take the re- sult of liia. labor aud brain in .the .way the
' evidence had shown defendant had done. The mere passive act of plaintiff in leaving j the book lying on a table did not give the j defendant the right to interfere with it. It was plaintiff's property. He thought the case might come within the principles laid down in the e-ases sited by i plaintiff's counsel. He was- bound ¡ to K-iy, however, that lie had some doubt as to this. Ile was glad to sav j that the Attorney-General by his very able I and ingenious argument had placed the case
very strongly from the other standpoint.' , It was always a pleasure to a judge to lis i ten to such an able and lucid argument, , and he had heard Mr. Gordon with grca t I pleasure. Judgment would be for plaintiff, with XàO damages, and there would be an order restraining defendant, in the terms of the plaintiff's claim, with costs against the defendant. His Honor gave leave to the Attorney-General to move in the Full Court to set aside the judgment on the various points submitted in his argument
On the application of the Attorney-Gene- ral, ten days were allowed him to move in the Full Court for the judgment to be set
a-idc.
At the elose of the case his Honor re- marked that he was pleased to find that the company had not in any "way been implicated in the abstraction of the secrets, and that Mr. Kundle had been able to deny that he had congratulated defendant on his smartness in getting and selling a
copy of the book.