As it clearly appears from the facts stated in the complaint that in no event can the plaintiff recover more than $3,000 on this policy, exclusive of interest and costs, the court below was clearly without jurisdiction.

The cause is reversed, with directions to the District Court to remand same to the state court from whence it came.


(Circuit Court of Appeals, Eighth Circuit. January 27, 1919.)

No. 4653.


The publication of false words or statements concerning one in relation to his profession, trade, or business, which are calculated to cause, and which do cause, him pecuniary loss in the practice of his profession, trade, or business, is actionable.

In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Action at law by Susan Lawrence Davis against Paul Bakewell, Jr., and wife. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Benjamin Carter, of Washington, D. C., and Christian F. Schneider, of St. Louis, Mo., for plaintiff in error.

Jesse McDonald, of St. Louis, Mo. (Arnold Just, of St. Louis, Mo., on the brief), for defendants in error.

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

SANBORN, Circuit Judge. This case presents by demurrer to the complaint the single question: Does the latter state facts sufficient to constitute a cause of action for slander? The court below answered this question in the negative. The averments of the complaint material to an answer to the legal issue are that the plaintiff was engaged in practicing the profession and business of a lecturer on hygiene, and was daily and honestly acquiring great gains and profit therefrom, when one of the defendants, with intent to injure her in her lecturing, in the presence of divers citizens falsely and maliciously spoke and published of and concerning the said plaintiff, and of and concerning the said plaintiff in the way of her said lectures on hygiene, the false statement that "Susie" meaning the plaintiff, "is crazy," whereby the plaintiff was greatly injured in her lectures on hygiene, divers of her neighbors and other citizens were caused to refuse to attend her lectures, as they had previously been accustomed to do, and the plaintiff was caused to lose great gains and profits, which would otherwise have arisen and accrued to her from her lectures on hygiene, to her damage in the sum of $100,000.

For the purpose of the decision of the question presented by this

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For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied March 29. 1919.

complaint, it will be conceded, without discussion of the proposition, that the averment that the defendant published the false statement that the plaintiff "Susie is crazy" would not have stated a cause of action for slander, without the allegations that she made this statement of the plaintiff in relation to her profession, and thereby caused her the pecuniary damage alleged in the practice of that profession.

But the publication of false words or statements, concerning one in relation to his profession, trade, or business, which are calculated to cause, and which do cause, him pecuniary loss in the practice of his profession, trade, or business, is actionable, and the averments of the complaint, which have been recited, clearly state a good cause of action under this well-established rule. Onslow v. Horne, 3 Wilson, 177; Sanderson v. Caldwell, 45 N. Y. 398, 405, 6 Am. Rep. 105; Morrasse v. Brochu, 151 Mass. 567, 575, 25 N. E. 74, 78, 8 L. R. A. 524, 21 Am. St. Rep. 474; Moore v. Francis, 121 N. Y. 199, 203, 204, 205, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810,

Let the judgment below be reversed, and let the case be remanded to the court below, with permission to the defendants to answer.




(Circuit Court of Appeals, Third Circuit. March 4, 1919.)
Nos. 2391, 2392.


The Frasch patent, No. 799,642, claims 2, 3, 6, 12, 19, 21, and 22 for a process for sulphur mining, the Frasch patent, No. 800,127, claims 2, 3, 7, 11, 21, and 24, for apparatus for sulphur mining, and patent No. 1,008,319, claims 7, 26, and 28 for sulphur mining, held invalid, in view of the disclosures of the earlier Frasch patents.

Appeal from the District Court of the United States for the District of Delaware; Edward G. Bradford, Judge.

Suit by the Union Sulphur Company against the Freeport Texas Company for infringement of patents. There was a decree (251 Fed. 634) in favor of plaintiff as to a part of its claims, and in favor of defendant as to the remainder, and both parties appeal. Reversed on defendant's appeal, affirmed on plaintiff's appeal, and bill dismissed.

Elihu Root, Livingston Gifford, Samuel R. Betts, and James R. Sheffield, all of New York City, Joseph C. Fraley, of Philadelphia, Pa., and John W. Peters, of New York City (Sheffield & Betts, of New York City, of counsel), for Freeport Texas Co.

Frederick P. Fish and Charles Neave, both of Boston, Mass., Henry A. Wise, of New York City, and Maxwell Barus, of Boston, Mass., for Union Sulphur Co.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
255 F.-61
*Certiorari denied 249 U. S., 39 Sup. Ct. 392, 63 L. Ed.--.

BUFFINGTON, Circuit Judge. As this case involves basic matters affecting the whole sulphur product of the United States, a preliminary review of general sulphur production is, in our judgment, requisite to a proper consideration of this case.

In its natural state, sulphur is found in rock formation. This rock is mined, and when subjected to sufficient heat the sulphur liquefies. This liquid thereafter solidifies into the sulphur of commerce. The mining of sulphur rock was an old and developed industry and prior to the American method, here involved, was carried on in the ordinary methods of mining, viz. stripping where the sulphur was near the surfact, or shafting where the sulphur rock was too deep for stripping. Nine-tenths of the world's supply was produced in Sicily, which furnished 400,000 tons; Japan furnished 15,000, and the United States a few hundred. In Sicily the sulphur ore was mined from deposits which varied in depth from the surface of the ground to 340 feet down. Where the ore was near the surface, pits and quarries were used; where deeper, shafts and galleries. The mining machinery was crude, and the ore was carried by men and boys on their backs up steep slopes on circular stairways. How water, the ever-present enemy of the miner, was kept from flooding the mines where their primitive methods were employed, does not appear in the proofs, but that it actually was present, and was later overcome by pumps, appears in Plaintiff's Exhibit 88, The Mineral Industry, 1894:

"It is a striking fact that in the new development in Japan, on a remote island and against great natural difficulties, the most modern methods and management prevail, while in Sicily, in the center of the oldest civilization, these are to a great extent of the crudest. In 1889 the Sicilian industry experienced very hard times. Prices were low, and much hardship was caused. To some degree it led to improved methods, and in the larger mines pumps and hoisting engines are now installed."

And that water was present in the Sicilian mines is also shown by the report of Brühl, United States consul at Catania, quoted in Plaintiff's Exhibit No. 78, Seventeenth U. S. Geological Survey, 1895-96:

"The overproduction cannot well be reduced, for obvious reasons. Mines cannot, without serious loss, be left standing unworked, because in most of them the rapidly entering water has constantly to be pumped out; otherwise it would soon fill and ruin the mines, especially those which are worked in a primitive mode (where the sulphur is carried to the surface in bags by men and boys over stairs crudely hewn into the walls of the passages leading out of the mines), or would cause such damage as would require perhaps six months or more (depending, of course, upon the condition of the mine) to reopen and again put in a workable condition; it would ruin the larger mines which contain mostly machinery.

In this state of the art, Sicily continued to supply the substantial part of the world's sulphur and practically the greater part of that consumed by the United States, for while sulphur was found in various parts of our country, and indeed a tremendous bed of it had, years before, been located in Louisiana, its depth and the nature of the overlying strata had thwarted all efforts to mine it.

This Louisiana deposit was discovered in 1869, when a well was being drilled for oil. It was substantially 100 feet thick and was lo

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cated between 400 and 500 feet below the surface. Although this enormous and valuable deposit was known to exist, and although large sums of money and high engineering skill were used, all efforts to mine it proved unsuccessful for 25 years. The existence of the sulphur bed and the failure to mine it finally attracted the attention of a man who, in inventive fertility and past experience seemed to be the one man to solve the difficulty and successfully work out one of the most remarkable wonders of world commerce. As what this man-Frasch-did, or, as it is now claimed, failed to do, is the real question which underlies this case, we deem a proper appreciation of what he had previously done, and the fields of operation he was familiar with, will throw light on the question of what he did, or failed to do, when he first attacked the problem of mining this Louisiana sulphur. bed.

Turning first to what had been done there when Frasch entered the field, we may say that the sulphur bed had been discovered in 1869, when a company in drilling for oil struck this sulphur bed or pot, some hundreds of feet below the surface. It was a pure, high-grade sulphur, and the possibility of mining it by shafting methods at once, and for 25 years, appears to have attracted the men and companies that sought to do so up to the time Frasch entered the field. As we have said, the bed was drilled through when it was first discovered, and in the subsequent operations, preceding Frasch, different other wells were drilled, and by these drillings, not only were the different strata, above and below the sulphur bed ascertained, but cores were preserved of the sulphur, which, of course, disclosed its physical and chemical structures. These drillings also disclosed and located those two great obstacles with which the shaft miner has to contend, quicksand and water. The drill further showed that, after passing through the quicksand, there was a vein of cap rock which overlaid the sulphur, and it was felt that this cap rock would afford a base or support on which a caisson shaft, carried through the quicksand, could rest, and that the sulphur, protected by the cap rock, could be safely mined when the shaft was carried through such cap rock and into the mine. The drill also disclosed water strongly impregnated with sulphur, showing the water must have come in contact with sulphur, and, as the shafting progressed, the fatal accidents from sulphurous gas, which indeed largely contributed to the abandonment of shafting operations, showed, and indeed created, a record of, the intimate proximity of sulphur and water to each other. The principal difficulty in shafting arose from the quicksand, which, when the rings which formed the shaft reached a certain depth, forced its way up from the bottom of the inside of the rings, and precluded further effort. In addition to this, the sulphurous. gas, which entered the rings, killed several men.

Into this field of failure Frasch entered, but from a new and wholly different angle. In effect he said:

"Abandon your shafting entirely, for by it you have never even reached the sulphur bed.. Now in the drilling field, with which I am familiar, we have drilled, not shafted for oil, and we have pumped up oil and oil impregnated with sulphur. In that work we have steamed wells hundred of feet underground."

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We can readily see how Frasch's work in drilling for oil, his knowledge of sulphur in steaming oil wells, all had prepared him for announcing the really astounding proposition of drilling a small-sized hole into the sulphur bed, carrying down hot water to melt the sulphur, and then pumping the liquid sulphur to the surface. This plan was looked on as visionary, and when suggested to men and companies in Italy and England, who were accustomed to shafting and stripping mining, it was considered so impossible and improbable as to give them

no concern.

In his previous experience, Frasch had made some epoch-making.inventions in which sulphur was the main factor. The petroleum produced from the great oil fields of Pennsylvania was wholly free from sulphur, and for that reason perfectly sweet burning oil, gasoline, paraffin, and oil's numerous by-products could be distilled therefrom. But both the Ohio and Canadian oil contained sulphur in such offensive combinations that it was impossible to refine them or get any by-products that were not so offensive as to make them unmarketable. Indeed, no use could be made of this vast oil product, save for fuel, for the odor emanating from its sulphur was so offensive and permeating that cargoes of ships carrying flour and bacon near vessels loaded with these oils were spoiled. Without entering into details, it suffices to say that, when he turned his attention to this sulphur pest, Frasch eliminated it by his process of refining and revolutionized the Ohio and Canadian oil industry, making it equal to the Pennsylvania product. Indeed, while Frasch was exploring this Louisiana sulphur field, he was also turning his attention to treating oil while it was in situ underground, with a view to increasing production. This came about in this way: Pennsylvania oil was found in Devonian sandstone and to increase its underground flow this sandstone was shattered by exploding nitroglycerine at the bottom of the well. On the other hand, the Ohio, Indiana, and Illinois oils are located in Silurian limestone. As these wells were exhausted, it was found nitroglycerine did not have the rejuvenating effect in limestone it had in the Pennsylvania sandstone, so Frasch devised the successful use of sulphuric or hydrochloric acid for increasing the oil flow, for by plugging the well after the acid was poured down the pressure of the carbonic acid gas forced the acid through the most minute cracks of the limestone and thus opened new sources of oil supply.

But not only did he do these particular things, involving sulphur and treating fluids or soluble minerals in situ, but Frasch, from his connection with the oil well industry, was trained in what was probably the most resourceful and most original art in any branch of human activity in overcoming obstacles. The great oil fields of Pennsylvania have given the courts of the Third Circuit a more than ordinary acquaintance with the art of gas and oil well drillings, and in no other field of activity have we found such fertility of resource and original skill. Why this is so will be apparent at once, when it is realized that the great elemental forces with which the operator contends are located from 1,000 to 3,000 feet below the surface, and can only be reached by mechanism of the size of a 6, 8, or 10 inch bore, and that such

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