On the opposite side is the "Ross's Brand" label quoted and also the white rectangular label with red, capital letters "Great Auk's Head." This bottle has the red capsule with narrow blue band and white tip before described. The main trouble with this dress is that it does not tell, except by careful reading, that the contents is not of E. & J. Burke's bottling. The red capsule, to those who regard that as characteristic of Burke and as belonging to E. & J. Burke, still says the stout is of Burke's bottling. If W. A. Ross & Bro. really intend to use a red, white, and blue capsule, and thus differentiate its capsule (or bottle of stout) from that of E. & J. Burke, Limited, it would be easy to let the white show on the side of the bottle and make the blue much more conspicuous by making the blue band wider. This would not in the least detract from the appearance of the bottle. I find no evidence of fraud on the part of the complainant. W. A. Ross & Bro. so bottles and advertises that one is left in doubt as to the bottler of the stout exported by them unless we carefully read the fine print of the proprietary label, and on defendant's Exhibits 8 and 12 I find:

"Ask always for Great Auk's Head Guinness's Stout, and see that labels, corks and capsules bear the great auk's head, trade mark and the signature thus, W. A. Ross & Brother, without which none is genuine."

Was this intended to be a statement by Ross & Bro. that bottled stout not bearing the great auk's head is not genuine Guinness' Stout? Thousands would get that impression. Mere extravagance in advertising is not such fraud as deprives a complainant of all remedy. See Dr. Peter H. Fahrney & Sons Co. v. Ruminer, 153 Fed. 735, 737, 82 C. C. A. 621; Clark Thread Co. v. Armitage (C. C.) 67 Fed. 896; City of Carlsbad v. Kutnow, 71 Fed. 167, 18 C. C. A. 24; Beecham v. Jacobs, 159 Fed. 129, 86 C. C. A. 623; Nims, Unfair Competition, §

273.

I am of the opinion that the complainant is entitled to an injunction but not to an accounting. Menendez v. Holt, 128 U. S. 514, 525, 9 Sup. Ct. 143, 32 L. Ed. 526; Hesseltine, Unfair Trade, 284, 285.

To deny the injunction would sanction what W. A. Ross & Bro. have done, and may do again, and what they probably would do. The discontinuance of the former suit, the delay in bringing this suit, and its slow prosecution, combined, would seem to disentitle the complainant to an accounting. I am not called upon to decide that the defendant cannot sell bottled stout, of the Ross bottling, the bottles bearing the proprietary label of Guinness, Son & Co., Ltd., and the red capsule with white tip and blue lower border and in no other way imitating or simulating complainant's dress and style, or to decide that W. A. Ross & Bro. cannot use the red capsule in use by them alone, or that the change made in labels and dress since the commencement of this action is sufficient. This court takes the case as it finds it and the complaint made and the offense committed and complained of when the suit was brought. The injunction will run against those acts. I think that the complainant should recover one-half of its taxable costs. Decree accordingly.

PENNSYLVANIA STEEL CO. v. ELMORE & HAMILTON CON-
TRACTING CO.

(Circuit Court, N. D. New York. December 21, 1909.)

1. TORTS (8 11*)-BREACH OF CONTRACT-WILLFUL VIOLATION-RIGHTS OF SUB

CONTRACTOR.

Where a subcontractor for the construction of concrete piers for a bridge, with knowledge of the use to which the piers were to be placed, and that plaintiff, a subcontractor for the iron work, would necessarily place heavy loads and valuable property thereon, willfully, intentionally, and fraudulently failed to properly mix the concrete and construct the piers in compliance with its contract, and knew the piers were unsafe and insufficient, so that when plaintiff attempted to use them one of them collapsed and injured plaintiff's property, defendant was liable to plaintiff for the damages sustained; defendant's duty being one imposed by law, irrespective of contract.

[Ed. Note. For other cases, see Torts, Dec. Dig. § 11.*]

2. NEGLIGENCE (§ 55*)-CONSTRUCTION OF STRUCTURES-LIABILITY TO SUBCON

TRACTORS.

Where defenuant, a subcontractor for concrete piers of a bridge, so neg. ligently constructed the same, with knowledge that plaintiff, an independent subcontractor for the iron work, would necessarily place heavy valuable material and tools thereon, that one of them disintegrated and fell, causing damage to plaintiff's material and tools, and the defects in the piers were not known to plaintiff and could not have been ascertained by careful inspection, and defendant knew of the unsafe condition, defendant was liable for the injuries sustained, though there was no contractual relation between plaintiff and defendant.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 68; Dec. Dig. § 55.*]

Action by the Pennsylvania Steel Company against the Elmore & Hamilton Contracting Company. On demurrer to plaintiff's complaint to recover damages for injury to property. Overruled.

Battle & Marshall, for plaintiff.

Edgar T. Brackett, for defendant.

RAY, District Judge. The ground of demurrer is that the declaration of the plaintiff does not state a cause of action upon which the plaintiff can recover.

The complaint concludes, "By reason of the premises the plaintiff has sustained damages in the sum of $20,000," and then demands judgment for that sum and for costs and disbursements.

Without going into detail, a summary of the complaint is as follows:

(1) The plaintiff is a Pennsylvania corporation, and the defendant is a New York corporation.

(2) Prior to December 16, 1908, the defendant, the Elmore & Hamilton Company, entered into a contract with the Washington & Berkeley Bridge Company, a West Virginia corporation, which corporation prior to said date had commenced the erection and construction of a bridge over the Potomac river from Maryland to West Virginia at or

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

near Williamsport, state of Maryland. The defendant, by its agreement, undertook and agreed, for a consideration, to construct certain concrete piers for such bridge to be used for the support of the superstructure of such bridge when placed thereon. This superstructure was to be of steel and this fact was known to defendant, as was the weight of such superstructure. Prior to December 16, 1908, the plaintiff, the Pennsylvania Steel Company, commenced the erection of the said steel superstructure upon such piers under a contract between the plaintiff and the Washington & Berkeley Bridge Company. That is, the Washington & Berkeley Bridge Company was erecting the bridge, including concrete piers and steel superstructure, and contracted with the defendant company to erect and construct the concrete piers and contracted with the plaintiff company to construct and erect or place on such piers the steel superstructure. The latter erection, of course, was to follow the first. The defendant company knew of defendant's contract and knew what weight the piers were to support.

(3) The defendant knew plaintiff was to put the said superstructure on the piers, and that it was to use valuable and numerous materials, tools, machinery, etc., in so doing.

(4) That it was the duty of the defendant to use reasonable care to employ competent and skilled workmen, to use suitable and proper material and machinery in mixing and placing such concrete and properly mix the concrete complying with the specifications in so doing, so as to give reasonable support to the superstructure and insure reasonable safety to the same and to the tools, etc., to be used thereon and therewith in the erection of such superstructure.

(5) That defendant, its officers, agents, and employés, in violation of the said duties, "intentionally, willfully, maliciously, negligently, and fraudulently mixed the concrete used in pier No. 10 and intentionally, willfully, maliciously, negligently, and fraudulently set and constructed said concrete after the same had been mixed, and failed to use the ordinary and usual machinery which should have been used for the proper mixing of the concrete, and in various other ways intentionally, willfully, maliciously, negligently, and fraudulently constructed said pier No. 10, and then delivered same to the said Washington & Berkeley Bridge Company a short while before they knew same was to be used for sustaining and supporting the superstructure, tools, machinery, and materials which plaintiff was about to place thereon." This allegation is intended to be that pier 10 was delivered a short time prior to the time it was to be used for supporting the superstructure, and that defendant knew it was to be used for that purpose very soon, not that it was delivered before defendant knew it was to be used to support such superstructure.

(6) That pier No. 10 was "improperly, fraudulently, willfully, and carelessly made and constructed by the defendant, and same was rotten, weak, and wholly insufficient to support the weight" to be put thereon by plaintiff, "as the defendant well knew and believed."

(7) That defendant then turned over the piers to said Washington & Berkeley Company and represented that it was complete and sufficient to bear the said load and weight intended, etc., and "invited the

175 F.-12

plaintiff, its officers, agents, and employés, to place such superstructure, materials, tools, etc., thereon.

(8) That none of such defects were open or visible, but all were such as could not be observed or discovered by the use of ordinary care on the part of the plaintiff. That plaintiff and its officers and agents were wholly ignorant of such defects.

(9) That pursuant to such invitation and representations, etc., the plaintiff put tools, etc., on said piers and commenced the erection and placing of such superstructure thereon when, on said 16th day of December, 1908, the said pier No. 10, "owing to the aforesaid negligence and fraud of the defendant," and while plaintiff was at work thereon, crumbled away and disintegrated, and the superstructure, materials, and tools, etc., were precipitated to the ground, a distance of some 45 feet, and such superstructure, tools, etc., were totally destroyed.

The main contention of the defendant is that there were no contractual relations between the plaintiff and the defendant companies, that defendant owed no duty to the plaintiff growing out of such a relation, that the action or complaint is for negligence and to recover damages for negligence, and that the action cannot be maintained.

The complaint says that, "owing to the aforesaid negligence and fraud of the defendant," the piers crumbled away and disintegrated, and the superstructure and tools fell and were destroyed. The damage is not charged up to "the negligence" alone, but to the "aforesaid negligence and fraud." The fair meaning and construction of the pleading is that the damage and injury resulted directly from the acts and conduct of the defendant, improper mixing of the concrete, etc., so the piers were rotten and weak, contrary to the specifications, and then turning such piers over with assurances that they were all right, and that that would constitute a fraud on the Washington & Berkeley Bridge Company.

In one aspect, and allowing the words "intentionally, willfully, and maliciously," as descriptive of the nature and character of defendant's acts, to determine the nature of the action, it is an action for a willful tort and wrong, and the complaint states a good cause of action. Allowing the use of the word "negligently," as descriptive of the nature and character of defendant's acts of omission and commission, to determine the nature of the action, as one of willful tort and wrong, or as one of negligence pure and simple, and we have a complaint in an action of negligence, and then we are to consider whether, in such a case, it is necessary for the complaint to allege or show contractual relations or privity of contract between the plaintiff and defendant.

In the first aspect mentioned, we have a case where a contractor intentionally, willfully, maliciously, and fraudulently does an act, that is, intentionally violates his contract for the purpose of defrauding the owner or one with whom he contracts, makes a dangerous structure, knowing the use to which it is to be put, one dangerous to persons and property thereon, which is designed for people to go upon and place heavy loads and valuable property upon, and then turns it over for such use with assurances that it is all right and safe and according to contract. It falls when put to its intended use and damage to the

property of third persons, rightfully there, follows. Can there be any doubt of the existence of a right to recover damages? Not if Kuelling v. Lean Manufacturing Co., 183 N. Y. 78, 83, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, or Devlin v. Smith, 89 N. Y. 470, 477, 42 Am. Rep. 311, or Torgesen v. Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 12 Am. St. Rep. 894, or Heaven v. Pender, L. R. (11 Q. B. D.) 503, or Riggs v. Standard Oil Co. (C. C.) 130 Fed. 199, or Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, is good law.

I think all these cases good law and determinative of the sufficiency of this complaint. In fact, I think, that disregarding the word "negligently" we have a charge of willful and intended injury to property. The complaint in effect says the piers were intentionally, willfully, and maliciously constructed in a rotten and unsafe condition, the maker well knowing persons were to go thereon, some 45 feet from the ground, and take valuable property with them for use there. But one result in the natural course of things could follow. The natural and probable consequence of the act and consequence reasonably to be apprehended was injury to property and perhaps to person. Then why is it not a case of willful injury to property? Suppose a person knowingly and willfully constructs a dangerous bridge upon which he knows his neighbor is liable to drive and has the right to drive, and does it maliciously. He then assures his neighbor that it is safe, and The bridge goes down, the neighbor drives upon it with his team. and the man is injured and his team killed or drowned. Can there be any question that the neighbor may recover for both injuries to person and injuries to property?

It seems clear to me that, under the circumstances described, while there is no actual contractual relation or contractual obligation between the one who erects the dangerous part of a structure and third persons who are to use it and add to it, and who are within the contemplation of the contractors as the users thereof in completing the entire structure, the first-mentioned party owes a duty to the secondmentioned party to at least construct it according to his contract, and even if he does so construct it and knows it to be unsafe to go upon, that he then owes a duty to the prospective users known to him to inform them of such dangers. It is extremely technical to hold that one who knowingly constructs a dangerous thing and turns it over to the owner to be placed in the hands of a third person known to such maker to be used by such third person in a way which will probably and naturally result in injury owes no duty to such third person. Under the authorities cited, there seems to be no question that the third person in such a case suffering personal injuries would have a remedy in an action for damages. Is there any good reason why he should not have a remedy by an action for damages for injury to his property when such damages are the known and natural and probable consequence of the act? In Heaven v. Pender, supra, the principle of law stated was, and this is approved by the Court of Appeals in Torgesen v. Schultz, supra:

"Any one who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an in