The Advertiser (Adelaide, SA : 1889 - 1931)(about) |
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Wednesday 14 May 1902
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SUPREME COURT-CIVIL SITTINGS.
Tuesday, May 13. (Before his Honor the Chief Justice.)
Petition for Dissolution of Marriage.
Walker v. Walker and Another.
This was a petition for a decree of dis solution of marriage.
Mr. G. Degenhardt for the petitioner. Mr. R. Homburg for the respondent, and Mr. J. C. Hamp for the co-respondent.
The petition set out that the petitioner Hugh Alexander Walker, was lawfully mar- ried to Rosina Walker, then Rosina Davey, a spinster, of Redhill, on March 15, 1890. That on October, 1901, and other dates the said Rosina Walker, at Orroroo, committed adultery with Richard James Hutchens, dis-
trict clerk.
The respondent's, defence was a denial of the alleged adultery. She further set forth that the petitioner had repeatedly beaten
and assaulted her.
Co-respondent's pleas denied the adultery alleged.
The petitioner, Hugh Alexander Walker, railway porter, said lie was married to re- spondent on March 15, 1S90. There had been no children by the marriage. For about l8 months after the wedding they re- sided at Crystal Brook, after which they removed to Jamestown, where they remain- ed until December, 1S92. They next went to Redhill, where witness assisted bis wife's father with harvest work. In February, 1893, they returned to Jamestown, and he again joined the railway service. They re- mained there till November, 1895, when he was transferred to Orroroo, where he was still living. For the first l8 months witness and his wife lived comfortably and happily together. He resigned his position in the railway service before going to Redhill, as his wife complained of being lonely when he was out on night duty. His intention was to take up land on the west coast, but as his, wife thought she would not be strong enough for this sort of life he abandoned the idea and rejoined the railway service. Witness objected to his mother-in-law pay- ing too frequent visits, as she caused un- pleasantness. In November, 1895, he went to Orroroo, and hi« wife joined him, bring- ing the furniture, in December of the same year. She took a domestic servant with her, and after they were settled witness said to his wife that as he would be on day work and home at night she ought to do the housework herself and dispense with the servant, especially as she had only them- selves to look after. She objected to this, and he allowed her to keep the girl. They had seldom been without a domestic servant, but he used to rise early, light the fire, and bring respondent a cup ot tea in bed. On coming home at
8 a.m. to breakfast he used to take his wife her breakfast in bed, but on some occasions he remonstrated with her. In August, 1900. his mother-in-law (Mrs. Davey), visited them, and remained till Christmas. He asked her to look out for another place. She did not go, and one day he put her out on the verandah and fastened the door. She went to live with a Mrs. Coulter. Alter this respondent frequently visited Mrs. Coulter. On the evenings that she did not go out co-respondent often visited the house and had conversations with her at the gate. On Sunday, March l8, witness's wife at- tended church, in the evening. Hutchens was there. Witness remained to a Sacra- mental service, and his wife and Hutchens left the church together, Hutchens having occupied the same seat that they were in. His wife told him when he reached home that co-respondent followed her to the gate, and told her that he thought such a lot of her and loved her so much that if petitioner were out of the way ho would make her happv. ' She said Hutchens was crying at the time. On March 19 respondent went up the passage to the front door. Witness picked up a heavy malacca cane. Hutchens, who was outside, asked, "Do you think we are going to get any rain out of this?'' Wit- ness replied, "No," and added that he did not think much of Hutchens; and, continu- ing, said, "If I catch you prowling around my premises trying to seduce my wife I will smash your head in." Co-respondent then left. Other such visits took place, and witness told his wife it would be better to "cut it." He informed her that he had heard things about the conduct of Hut- chens, and that evidently he was not a fit man for her to associate with. He ob- served a change in the demeanor of respon- dent. She had threatened to poison him. He had frequently seen Hutchens pass the window of the house and wave his hand to respondent, who would acknowledge the sa- lute. One evening he thought he would spring a surprise on the co-respondent, and he put on an apron and hat belonging to his wife, and waved to co-respondent as he passed the house. He returned the sainte. On the evenings when witness's wife went .to visit Mrs. Coulter she left at about 7.30, and sometimes returned home rather late. Witness was transferred to Adelaide for about five weeks, and when he left he ar- ranged for a girl to stay with his wife. On his return he was told that it was probable that he would be sent to Quorn. Respon- dent saw the traffic superintendent, with witness's consent, and as the train in which he was a passenger was leaving the station she handed the official what looked to him like a letter. His wife subsequently told him that it was a medical certificate for her mother. He, however, knew at the time she was well and residing close to them. As a result of this he was not transferred. On October 23 Mrs. Wm. Davey, witness's wife's sister-in-law. unexpectedly arrived at Orroroo. Witness was going to Peake Vale in the evening to attend a church meeting. Some days before this he had asked his wife lo go with him to the meeting. On the evening of October 23, when he returned from work, he found everything in order as usual. Before he left home his wife asked him to call at a certain house and tell her niece that she would call to see her a little later in the evening. When he got to Peake Vale the Rev. Chas. Tresise told him that the meeting had been postponed. He returned to the house men- tioned at about 9.20 p.m. If the meeting had been held it would have been two hours later before he would have reached the house. When he returned home he wail surprised to find, that there was no light in the window. The key of the door was not in its usual place. He caught hold of the handle of the back door and called out, "'Rose.'' He immediately heard voices from within the house and footsteps. He went round to the fiont of the house and saw co-respondent, who was partlv dressed,
making his exit by the door. Witness called after him. ''Come back here, you cut." Respondent closed the door in wit- tiess's face, but he forced it open. Witness chased Hutchens, and accused him of acting improperly with his wife, and called him a coward and a "contemptible hog." Hut- chens, repled. "Don't make such a noise. There is no harm done." He took Hut- chens back with him. and said to him. "Take the woman: I have done with her for ever. If you are a man you will take her away." He was angry, and intended at the time to shoot both his wife and Hütchens. He went and informed a neigh- bor what had taken place. Respondent fol- lowed him, and stayed at the neighbor's house for the night. When witness re- turned home he found the bed had the ap- pearance of two perrons having occupied it. Some of his wife's clothes were lving at the foot of the bed, and witness took them and some boots to the place where respon- dent was staying. Early the next morning his wife came, and asked him to take her in. He replied, "Go to that hog of a Hutchens, and ask him to take you in." She again visited the house when witness was at breakfast. She looked through the kitchen window, and called, "You seem to be enjoying yourself. I must get in and get on with the dinner, or it will not be ready for you when you come home.'" He told her to go away. She was in the ver- andah at dinner time, and when she de- clined to go away he threw some
water, over lier. She then went
away. On Sunday evening. October 27. after church, his wife visited the house, and begged him to forgive her. He an- swered that he would not have anything to do with her. On Sunday evening, No- vember 24, she again appealed to him to take her back. He told her that he had
for ever done with her. At the time the petition waa filed he only knew of adul- tery having taken place on October 23 The other charges were the result of know ledge which came to him later. On tho night of October 23 he searched the bed- room, and found a bottle produced, and a fancy purse. The latter article bore the initials "R.J.H.," and the words "Remem- ber me." There was also a dress ring. He had not previously known anything of these articles. Witness was getting £2 2/ per week, and of this he handed £4 per fort- night to his wife. No hills had come in since ehe left him. Witness was a tee- totaller.
By Mr. Homburg-Witness had not ac- cused his wife of improper conduct before October 23. Her brother (Joseph Davey) visited him two days later, but he did not allow him to enter the house, as he had done with his wife, and did not want to have anything to do with her people. Re- spondent declined to accompany petitioner to the church meetings. He had never promised his wife that he would forgive lier and take her back again.
By Mr. Hamp-Witneys had known co- respondent for about seven years. Hut- chens filled the position of ranger as well as district clerk at Orroroo. It was pro- bable that his office duties would often keep him out late at night. He had frequently remonstrated with his wife in respect to her familiarity with Hutchens.
At this stage the court adjourned till 10.30 this morning.
(Before Mr. Justice Bundey.)
Action for Damages and to Restrain Use
of Trades Secrets.
The action of Crowder v. Hilton for an injunction tcstraining the defendant from making use of or disposing of certain trade recipes and prescriptions, and claiming £500 damages in connection with the same, was continued from the previous day.
Sir Josiah Symon, with Mr. Cleland, for plaintiff, and the Attorney-General (lion. J. H. Gordon), with Mr. J. R. Anderson,
for defendant.
Arthur Phelp« Crowder continued his evidence, and said he did not always make the same quantity of cordials as those indi- cated iii the recipes.
Arthur Hilton, defendant, said, under examination by the Attorney-General, the company possessed printed books of re- cipes and saccharine tables. When assist- ing plaintiff the latter had on many occa- sions allowed him to see tho list of ingre- dients used, and he had also assisted to check the-working out of quantities in the
book.
Mr. Cleland was about to cross-examine witness, when the Attorney-General ob- jected, and contended that he had exhaust- ed his right under rule 4, of order 69.
His Honor allowed the cross-examination, and witness said cordials had often been returned. In January last some were sent back' on account of offensive odor. He could not say how long it had been in the factory before it was sold.
Joseph C. A. Rundle, managing director, said^the firm had never taken advantage of the recipes copied from Crowder'» hook.
By Mr. Cleland-He only learned of the copying since the writ had been served. He had never said that Hilton had done a smart piece of business in getting the
copy of the book for £50.
Frederick Vandome, clerk, deposed that he had frequently seen Hilton's copy and plaintiff's book in the office and cordial room. He had looked casually at Crow- der'» book, but had not felt any interest
in it.
William Peckham, manufacturer to the company, said he had had access to plain- tiff's hook and Hilton's copy in the cor- dial-room, to which all hands "could gain ad-
mittance.
By Mr. Cleland-Had been in the trade for 12 years as a bottler np to the time that Crowder left, and till then had had nothing to do witfi cordial making. Some of the recipes he used he had purchased, and others he got from his father. The book of his own recipes produced was written up by biro about a month ago. He did not think any of them 'corresponded with Crowder's. He had once supplied Crowder, at his request, with a recipe for ginger ale. It was on a loose slip, which
rowder put in his own book. Crowder used to leave his book lying on the table whilst lie went, for a drink. He had looked through it, but never with the intention of copying it.
In opening his defence, (he Attorney General said there were not many facts in the cas«, but it was full of law." He dis- puted the proposition that Crowder was entitled lo succeed, as ho had not any pro- perty in the recipes. The case cited by Sir Josnnh Symon (Caird v. Sime, 12 ap. cases, p. 326) was distinguished from the present trial. First, because the lectures were Caird's own composition; and then by an implied contractual obligation between the professor and his students, not to re-
peat to the outside world what they heard. Also, according to page 43, and the judg- ment of Lord Watson, there was fío case to show that a man had any property in com- mon law in a mere copy of another man's inventions. Crowder hod stated in evi-
dence that he copied most of the recipes from his father's book. Sir Josiah Symon
had made reference to tho case in which the speeches of Lord Roseberv were dealt with in Walter v. Liane, L.R., ap. case, 1900, p. 539. That dealt with »he mean- ing ot the word "author," and was not decided on the grounds of proprietary right in common law. hut on statutory right conferred by the Copyright Act. Com- mon law right was founded on the labor involved in the work of origination. The mere labor involved in copying would not, apart from copyright, establish a proprietary right. The contention of plaintiff's counsel was, in effect, that a property in common law was given to a man who copied from some other source, «?o far as the copy was concerned. They
were faced with the fuct that they had no knowledge to show that the recipes in the book of the late Mr. Crowder, and which plaintiff had copied into his book, were original: Kor alt they knew, they iiiight ! have been copied from some other" source. The onus was on plaintiff to show that ho had a right of property founded on soiiii? thing stronger than that he copied the recipes. In suppoit of this contention lie cited Mori»on v. Moat. 20 L.J., Ch. D., p. 513. Referring to the quotation ot Sa Josiah Symon ti oin Short on the "Law re- lating to literature and art.'* p. 539. lie pointed out that it wa» .»taied there that if such a right existed at nil, it must exi*t exclusive ot all other person«-. Judgment could not go in any event on the claim founded on the proprietary right of Crow- der in the recipes, as hejiad not shown that they were original. The argument for the plaintiff .for the property in the re- cipes vv;j=: founded on the misconception of the subject matter of the action. The law distinguished between literary pioduction*,. and specifications of inventions, or.formu las for the manufacture of goods. There was no private propeity in invention«" un- less they were, patented, and directly de- scriptions of theih were published they be- came public property. If Crowder had any | exclusive right in the recipes, it was as
trade« secret». Plaintiff had contended
that he lind this right, and that ¿(éten- dant had fraudulently talten possession of the secrets. He denied that they were trades secrets, or that they were Crowder'« property, and that they "vvete improperly acquired. Defendant had not sold any trades secrets belonging to Crowder. If plaintiff's father had any secret in the re- cipes he had himself destroyed it by giving them to plaintiff under no obligation to keep them secret. He also gave the book to one of"his daughteis to pass ic on to plaintiff'. There was no evidence to show that they were kept secret while in the hands of plaintiff's sister, who, hy hand-
ing the book to her sister-in-law. had again j published them. Tho late Lord Justice
Fry, in Humpherson v. Sycr, 4, L.R., pa-1 tent case1?, p. 415, had laid it down that « publication of a trades secret to a person
under no obligation no1 to reveal it was I publication lo the world.
At this stage the court adjourned till i Wednesday morning at 10.30. |