BARR CAR CO. v. CHICAGO & N. W. RY. CO., 110 F. 972

JENKINS, Circuit Judge, after the foregoing statement of the case, delivered the opinion of the court. It is doubtless true that the letters patent to Barr afford a prima facie presumption that he is the original and first inventor of what is therein described as his improvement, and that the burden to establish the contrary rests upon the defendant below, who asserted the fact. Agawan Woolen Co. v. Jordan, 7 Wall. 597, 19 L. Ed. 177; Stimpson v. Woodman, 10 Wall. 122, 19 L. Ed. 866.

But that prima facie presumption may be rebutted so as to shift upon the patentee the duty of overcoming the probative force of the evidence produced by his opponent, and this prima facie presumption, we think, is, in the first instance at least, fully met and .overcome by the fact that Barr several years before the date of his application prepared specifications and drawings for an application for a patent for the same device then claimed to have been invented by White, and which plans and specifications he signed, as a witness for White.

If that act is to stand as of probative force, Barr is convicted out of his own mouth, and cannot be held to be the original inventor. He seeks to avoid the effect of this act under the claim that what he then, did was done under some sort of compulsion or duress. He does not claim any active compulsion by White,' but that he then acted under fear that, if he .claimed his own, White would procure his discharge from the employment of the railroad company.

We are cited to many cases which avoid things done under compulsion and duress, and where dealings between persons in confidential relation — as, for example, lawyer and client, trustee and cestui que trust, guardian and ward, physician and patient, husband and wife — are watched with extreme jealousy, and are avoided if any duress or undue influence appear. Lyon v. Home, L. R. 6 Eq. 674; Casbourne v. Barsham, 2 Beav. 76; Haydock’s Ex’rs v. Haydock, 33 N. J. Eq. 501; Taylor v. Taylor, 8 How. 183, 12 L. Ed. 1040; Munson v. Carter, 19 Neb. 293, 27 N. W. 208.

A multitude of cases could be assembled to the same purport, and the law of them is undoubted. The present case cannot, however, be held to fall within the principle of those decisions. Here there was no such confidential relation between White and Barr. He was a clerk or draftsman in the service of the railway company under White. He was under no more dependence upon White than is any clerk in the service of a railway company in dependence upon the head of the particular department in which he serves. Both were free men.

White, with the consent of the railway company, could discharge Barr at any time, and Barr was at all times at liberty to leave his employment. It would be carrying the rule a great way and to a dangerous extent to hold that any one occupying a subordinate position is not to be bound by his acts, as between himself and his superior, because of a supposed fear upon the part of the clerk that, should he protest, he might lose his employment. See upon this subject Leary v. Railroad Co., 139 Mass. 580, 2 N. E. 115, 52 Am. Rep. 733; Dougherty v. Steel Co., 88 Wis. 343, 60 N. W. 274; Reed v. Stockmeyer, 34 U. S.

App. 727, 741, 20 C. C. A. 381, 74 Fed. 186. The contention that Barr was acting under some sort of duress or compulsion arising from his fear, and not from any act of White, is rendered of still less avail by the fact that within two or three months after signing these specifications he voluntarily left the service of that railway company and accompanied White to another field of labor, and for fifteen months after he left service under Mr. White and entered the employment of another railway company never suggested to any one, by act or deed or word, that he was the inventor of this car.

His conduct under the circumstances, if he was in fact, or deemed himself in fact to be, the inventor of this car, is inexplicable, and runs counter to the usual conduct of responsible human beings. He' stands alone in the assertion of his alleged invention. His testimony is in sharp conflict with that of White, who claims also to be the inventor, and whose evidence is fortified by the surrounding circumstances, and greatly strengthened by the action of Barr.

In the. light of these circumstances, we are unable, judging of the case in the light of the usual conduct of men, to give credit to his testimony thus contradicted directly by circumstances and by his own act. As was well said by the supreme court in Atlantic Works v. Brady, 107 U. S. 192, 203, 2 Sup. Ct. 225, 234, 27 L. Ed. 438, 442, — a case much like the present: “Interested as he is in the result of the suit, his own testimony cannot be allowed to prevail against a course of conduct so utterly at variance with it.

It may be true; but we cannot give it effect against what he himself did, and did not do, without disregarding the ordinary laws that' govern human conduct.” The decree is affirmed. WOODS, Circuit Judge, sat at the hearing of this case, and concurred in the result, but departed this life before the preparation of this opinion.