
    The People’s Milk Company, Respondent, v. John W. Doty, Appellant.
    (Supreme Court, Erie Special Term,
    September, 1909.)
    Penalties —Actions for penalties — Questions for jury.
    Taking case from jury and nonsuit — Weight and sufficiency of evidence — Credibility of witnesses — Witnesses of uncertain memory.
    Where, in an action to recover a penalty under the statute making possession by defendant of a milk bottle with plaintiffs trade-mark upon it presumptive evidence of defendant’s unlawful use thereof, it appears that plaintiff had two trade-marks for its bottles, and a witness for plaintiff would not positively swear which one of them was on the bottle taken from defendant, and the testimony of plaintiff’s secretary was only to the effect that he did not know of any permission being given to use the bottle, the direction of a verdict in plaintiff’s favor is error, as whether one of the trademarks was on the bottle and whether permission to use the bottle had been given were questions for the jury.
    Appeal by defendant from a judgment rendered against him by the Municipal Court of the city of Buffalo.
    Frank Harding, for appellant.
    Moses T. Day, for respondent.
   Brown, J.

The possession by defendant of a milk bottle with plaintiff’s trade-mark upon it, without plaintiff’s consent, is made presumptive evidence by statute of the unlawful use of such milk bottle and subjects defendant to a forfeiture of $100.

Plaintiff had two trade-marks for its milk bottles. Plaintiff’s witness said he knew those trade-marks; that one of those trade-marks was on a bottle taken from defendant’s possession, he didn’t remember which trade-mark. On cross-examination the witness said it was the trade-mark with the large “ P;” that it was his impression that it was the large “ Phe wouldn’t swear positively that it was the trademark with the large “ P,” but did swear positively that it was one or the other of plaintiff’s trade-marks.

The secretary of plaintiff testified that he did not know anything about any permission being given by the plaintiff to anybody to use these bottles; not to his knowledge was there any such permission; that he kept minutes of meetings of the directors and stockholders and that he had never seen such permission in any minutes.

The jury, upon announcing to the trial court their disagreement, were directed to render a verdict for the plaintiff of $100.

Defendant upon this appeal urges that the trial court erred in such direction of a verdict, and that he was entitled to a decision of a jury.

If the witness was unable to clearly state which trade-mark was on the bottle in question, does it necessarily follow that his statement that one of them was on the bottle must be accepted? Might not men of ordinary judgment and discretion differ as to the significance of the failure of such witness to clearly identify the trade-mark? If the witness had been unable to identify which one of a dozen trade-marks was on the bottle, yet stated it was one of a dozen, would there be any doubt- that the question whether there was one of the dozen trade-marks on the bottle was exclusively for a jury ?

If the secretary of plaintiff did not know of any permission being given to use the bottle, is that proof so conclusive that it can be said that it was established to the satisfaction of discreet, reasonable men that neither the corporation nor its officers conducting its affairs ever gave such permission?

If a conclusion either way upon these two propositions should not shock the sense of a reasonable man, then the question was for a jury.

A jury with propriety might say that, upon such evidence, plaintiff could not recover a penalty of $100.

Hew trial ordered in Municipal Court, October 5, 1909, ten a. m. Costs to abide event.

Judgment reversed and new trial ordered, with costs to abide event.  