Dempsey v. Dobson , 184 Pa. 588 ( 1898 )

Opinion by

Mb. Justice Williams,

This case was in this Court in 1896, and is reported in 174, Pa. 122. A verdict and judgment had been obtained in the court below against-the defendants from which they appealed. We reversed the judgment, holding that a color mixer could not assert as against his employer, an exclusive title to the various combinations and shades of color devised by him for use in the manufacture of carpets in his employers’ mill. But we awarded a venire facias de novo because of an allegation that violence had been used by the defendants in the detention of the plaintiff, and in preventing him from carrying away from the mill his color books. A new trial has now been had. The charges of the use of unlawful violence do not seem to have been pressed, but the plaintiff attempted on the trial to prove a custom or usage prevailing in the business of carpet making, by which the results of the color mixer’s skill and labor in the service of his employer Is recognized as belonging exclusively to tire employee, the color mixer; the employer, the manufacturer, for whoso use the colors were devised having no title whatever to them. The several assignments of error relate to the rejection of the evidence offered to establish such a custom. It is one of the requisites of a good custom that it must be reasonable. Another is, that it must not be contrary to law. The custom sought to be set up was an unreasonable one. The color mixer, like the designer and the weaver, is employed because of his supposed ability to serve his employer in the particular line of labor which he is expected to follow. First comes the work of the designer, who prepares, or invents, it may be, the pattern after which the carpet is to be made. Then comes the color mixer who is to mix his employers’ colors, in such proportions as to produce the necessary shades required by the pattern that has been adopted. Finally comes the application of the colors and the weaving. The services of each and all these mechanics are requisite to the production of the carpet. The employer has an equal right to the faithful service of each, and is equally, so far as his own business is concerned, entitled to the results of the labor of each. If a color mixer could at his pleasure carry off the recipes and color books from his employers’ factory and refuse to permit their further use except upon his own terms, it would be in his power to inflict enormous loss on the manufacturer at any moment, and not merely to disturb, but to destroy his business. Such a custom would not be reasonable and could not be sustained. But it is against the law. The courts of the United States, of this state and, so far as I have been able to examine, of all the states in the Union, recognize the rule laid down when this case was here in 1896, that ‘‘ The designs and recipes so made for an employer are as between his employee and himself, his, for the purpose of his own manufacturing business. Even if his employee had obtained letters patent for his formula, protecting himself thereby against the public, still the employers’ right to continue its use in his own business would be protected by the United States courts : ” Solomons v. United States, 137 U. S. Peps. 342. To the same effect are Slemmer’s Appeal, 58 Pa. 155; Dempsey v. Dobson, 174 Pa. 122. The several offers made for the purpose of showing the existence of the alleged customs were properly rejected. In the absence of proof of the alleged acts of violence, we fully concur with the learned judge of the court below that there was nothing shown by the evidence on the part of the plaintiff sufficient to sustain a verdict against the defendants, and that the case was a proper one for a compulsory nonsuit.

The judgment is affirmed, and judgment is now entered in favor of the defendants.