596 



THE INDIA RUBBER WORLD 



[July 1, 1917. 



the chance of their getting in trouble too, and that if one got in 

 trouble perhaps the British Government would begui to curtail 

 the supply. I am only stating what I undurstand is the de- 

 fendants' claim. So the defendants claim that anything they did 

 was not because of any action of the plaintiff in regard to the 

 KulcnkampfT affair. That is the reason why I say that the mere 

 fact whether the Kulenkampff affair was an honorable one or a 

 dubious one or a dishonorable one may not of itself help to 

 determine this controversy. It has a bearing in the case, because 

 everything must be considered that is in evidence on the intent 

 of the parties. It has a bearing certainly, or it may have, upon 

 what ullimatelv was the reason why Mr. Blitz did not get any 

 more rubber through the British Consul. In so far as it has 

 those bearings, it is important. But I do not think the case turns 

 one way or the other upon how you decide that question. But 

 that is the reason I am pointing it out to you. 



In this case, like every case, the plaintiff has to prove jus case. 

 That me:ms just this. It means that now that the case is all in, 

 the evidence and the exhibits all before you. that you have to be 

 convinced, that you have to be satisfied, that the trutli of the case 

 establishes the fact that the plaintiff claims, namely, that these 

 defendants wrongfully and unlawfully conspired to do him this 

 grievous harm. If you are convinced of that, then the plaintiff 

 has proven his case. If you are not convinced of that, then the 

 plaintiff has not proven his case. If he has not proved his case, 

 under the law. the verdict must be for the defendants. In other 

 words, the defendants do not have to disprove the plaintiff's 

 claim. The plaintiff has to prove his claim. Failing to do that 

 to your satisfaction he loses. To put it in another way. If you 

 do not know whether or not these defendants wrongfully and 

 unlawfully conspired to do this injury to the plaintiff, if you 

 do not know whether it is so or not, then you must find for 

 the defendants, because the plaintiff has not convinced you 

 that it is so. He has to convince you that it is so before he can 

 succeed. If you are satisfied that the defendants did not con- 

 spire, then the verdict is for the defendants, because the plaintiff 

 has not shown you that they did conspire. It is only in the one 

 event that you are satisfied as a matter of truth and fact that the 

 plaintiff has proven and that the evidence shows that the de- 

 fendants have wrongfully and unlawfully conspired to do this 

 harm to this plaintiff, that you may find for the plaintiff. 



There have been a number of interested witnesses in this case. 

 Under the law the plaintiff is an interested witness. Each de- 

 fendant is an interested witness. The plaintiff is interested be- 

 cause he is trying to get money. The defendants are interested 

 because they are trying to defeat a claim of money sought to be 

 obtained from them. So the law recognizes all of them as inter- 

 ested witnesses, and says merely this about them. The law does 

 not sav vou must not believe "them. A great many years ago 

 thev w'er'e not allowed to testify at all, because somebody ap- 

 parently had the idea that interested people never told the truth. 

 You are all business men, and you know that is not the fact 

 ahvavs. You know that interested people sometimes do tell the 

 truth, even though it hurts their interests. On the other hand, 

 you know perfectly well that somaimes interested people do 

 not tell the truth ; that when it serves their purpose to exaggerate 

 or color, or do even worse, they sometimes do it. The law 

 recognizes all that, and says just this about interested witnesses, 

 that vou should take their testimony with care and caution and 

 look at it carefully before you tie up to it. Before you are satis- 

 fied that you can relv on it, be sure that you believe it is true. 

 If you do believe it is true, believe it, notwithstanding they 

 have an interest. If you do not believe it is true, discard it. 

 That, of course, you would do anyhow with other witnesses as 

 well as those interested witnesses I have referred to. 



The verdict in this case will be either for the plaintiff or for 

 the defendants. If it is for the defendants, there is nothing more 

 to the verdict and nothing more for you to deliberate upon. But 

 if you find, under the rules I have given you, that the verdict 

 should be for the plaintiff, then you will have to decide two other 

 things. One is against which of the defendants the verdict 

 should be ; and the second what the amount of it should be. 



Gentlemen, I really feel almost embarrassed in stating some 

 things here to you, because you are so intelligent, but I feel it 

 is my duty to say this. You will understand the fact that I am 

 going to charge you about the question of damages does not in- 

 dicate that I think you will ever get to that question at all. I 

 have to charge you about it, because under the law I have to 

 cover every possible question in the case before you retire. I 

 cannot tell whether you are going to find for the plaintiff or 

 for the defendants. So do not be misled by the fact that I am 

 going to charge on the question of damages. You will not get 

 to the question of damages if you find for the defendants. But 

 if you find for the plaintiff, then you come to the question of 

 damages, and the determination of which of the defendants your 

 verdict should be against. 



On the latter question this is the law: If there is a con- 

 spiracy, as 1 have already told you, there must be at least two 

 to take part in it, and there may be more. The plaintiff claims 

 that all these defendants who have been named here conspired 

 together, that they were all of this committee, and whatever was 

 done by one was done by all ; that the circulars that went out 

 bore the names of all — perhaps not every one. but most of them 

 did at any rate ; and tliat they were acting in concert and acting 

 through their chairman, and that their secretary, Vorhis, was act- 

 ing in behalf of them all and representing them all. 



If you find that there was any conspiracy, and that they all 

 participated in it, and that it was a conspiracy of the kind I 

 have indicated to you, an unlawful, wrongful combination to 

 squeeze this plaintiff, then your verdict may be against all of 

 them. If you find any one or more of them did not enter into 

 that conspiracy, your vcr<lict could only be against those whom 

 you think did enter into it. 



There docs not have to be direct proof of conspiracy. I sup- 

 pose it is almost impossible in any law suit to get the concrete 

 proof that two or more people got together and said, "We are 

 going to conspire to do this thing." It is not done that way, as a 

 rule, at least. The law recognizes that fact, and says that you 

 may (I do not say that you will or should) in proper cases find 

 that there was a conspiracy from the acts and from the things 

 that you might prove to have been done to you from the concert 

 if there be such between the parties. So if you find a verdict for 

 the plaintiff, and get to that question, just say whether or not 

 in your verdict it is against all the defendants, or if not name 

 those against whom you find. 



Then on the question of damages the law is very simply stated. 

 If the plaintiff is entitled to recover, he is entitled to recover 

 whatever damages he sustained as the result of these wrongful 

 and unlaw-ful acts of the defendants, because you have got to 

 find that they were wrongful and unlawful before you find for 

 the plaintiff at all. If they did these wrongful and unlawful 

 things, they must pay the plaintiff for the damage that resulted. 

 That you will fix, using not necessarily as the mathematical basis 

 of your verdict the proof as to what his earnings have been 

 before and since, but using that proof together with any other 

 proof there may be in the case in determining what really has 

 been the damage occasioned to him by these acts of these de- 

 fendants. 



PERLMAN-FIRESTONE SUIT DISMISSED. 



A FTER five days of legal skirmishing before Judge Learned 

 ■'*• Hand in the United States District Court of New York 

 the infringement suit of the Perlman Rim Corporation, of Newr 

 York City, against the Firestone Tire & Rubber Co.. Akron, 

 Ohio, was brought to a dramatic close through its sudden with- 

 drawal by the attorneys for the rim corporation, and its final 

 dismissal without prejudice to either side by the Court. This 

 was followed later by the announcement of L. H. Perlman's 

 removal from the presidency of the company bearing his name 

 because of his complete lapse of memory while on the stand 

 regarding his London business career of 1895, and his refusal 

 to answer questions or to affirm or deny allegations reflecting 

 upon his integrity. 



Although this surprising denouement constituted a signal vic- 

 tory for the Firestone Company, the Perlman patent continues 

 technically a valid grant. However, the significance of the pres- 

 ent situation lies in the fact that the historic suit against the 

 Standard Welding Co., authenticating the Perlman patent, was 

 won principally because of the Court's belief in Mr. Perlman's 

 rectitude and veracity, and the acceptance of his testimony, 

 supported by witnesses, as to the manner and date of the mental 

 conception of his invention. Should the validity of the patent 

 again be tested at law it is an open question what weight his 

 testimony would carry. 



According to "Automobile Topics," "it is believed that Perl- 

 man's unexpected elimination from the Perlman company will 

 render it possible for those in control of its affairs to- readjust 

 relations with the trade, thereby aiding in bringing to an end 

 the tense uncertainty that has remained ever since the rim in- 

 dustry was held up by the now historic decision by the old 

 Standard Welding Co." 



