HOW MR. JUSTICE BUCKLEY KEPT HIS EYE ON THE HASKELL BALL
One night I was going North by one of the sleeping trains and, having
business late in the afternoon in Holborn, did not return to the
civilized parts of the town, but dined at the Inns of Court Hotel. There
are little tables for two, and at mine was dining also a man with whom I
got into conversation. He told me he came from Glasgow and was in town
on a business which he dared say I should think a very curious one--a
big lawsuit pending about such a small matter as a ball used in the
playing of the game of golf. Did I play golf? I said, "A little." I also
said that in all the history of coincidences this was just about the
most singular, for that I, too, had been engaged as a witness in the
very same case. It was the case that the manufacturers of the Haskell
ball were bringing against the manufacturers of the Kite ball. The point
was to prove the Haskell patent good for their protection in a monopoly
of making rubber-cored balls. The Haskell people had asked me to give
evidence, because I was the first man to play with these balls in
England, and because I considered them, and _pace_ the law, still
consider them, an absolutely new departure in golf-ball manufacture.
It would be ungrateful not to think that providence designed this
meeting at the Inns of Court Hotel, for my new friend was able to tell
me what the right fee was for me to charge as an expert witness. He told
me that that was what I was--an expert witness. I did not know it
before, although I knew, without his telling me, the ancient divisions
of the species "liar," into "liar," "d----d liar," and "expert
witness." I was prepared to play my part, especially when I heard, with
pleased surprise, the large fees paid for witnesses of this expert and
unimpeachable character.
So, in due course of time, I was summoned up to London to attend the
trial. I suppose other trials are sometimes as humorous, but I could not
have believed it possible that there could be such good entertainment as
I found in that Court, where I sat with much enjoyment calculating,
between the acts, the sum to which my expert witness fees were mounting
up as I waited. The Judge, Mr. Justice Buckley, if I remember right, was
not a golfer; yet the way in which he kept his eye on the ball during
the three days or so of that trial was above all praise. And the ball
took a deal of keeping of the eye on itself, for there were many balls
of different sorts brought into Court, and they were constantly running
off the judge's desk, and tumbling and jumping about in the body of the
Court, where learned gentlemen knocked their wigs together as they bent
down to search for them. There was an old lady who said she had made
balls which were practically identical with these Haskells all her
life--balls for boys to play with. So she was commanded to go away and
to come back with all her apparatus and to show in Court how the balls
were made. She returned, and it appeared that, after some winding of
thread about a core, the next proceeding was to dip the balls into a
molten solution of some boiling stuff which smelt abominably. She cooked
this up in Court, and the whole business was very suggestive of the
making of the hell-broth of the witches in "Macbeth," only that perhaps
the Court of Law did not give a striking representation of the "blasted
heath." The balls were apt to escape from the old lady when they were
half cooked and to go running about the Court where the barristers,
retrieving them, got their fingers into the most awfully sticky state
and their wigs seemed to be the appropriate places on which to rub the
stickiness off.
Willie Fernie was there, enjoying himself hugely too. He, it seems, had
long ago made a ball resembling the Haskell. There, too, was Commander
Stewart, whom I had known in the early eighties at St. Andrews. He was
the maker of the "Stewart patent" balls, which had a vogue for a time,
though they had not the least resemblance to the Haskell balls. They
were of some composition, quite solid, and with iron filings in them.
Nevertheless, Commander Stewart, as it appeared, had made a ball similar
to the Haskell, though it could not have been the one known as his
patent. All these were testimony to what the lawyers call "previous
user."
Then an old gentleman was called who said that he had played at ball as
a boy with another old gentleman whose name he gave, with a ball similar
in all its essentials to the Haskell golf ball. The other old gentleman
was called then, and he was asked whether his memory corroborated this,
and whether it was in essentials the same ball. To which he answered, to
the delight of the Court, that it was not the same ball at all. "What
then," asked the Counsel, in a profoundly shocked voice, "do you mean
to say that you think your old friend is a liar?" "No," he replied quite
readily, "I don't think so, I know it." I looked out to see these two
old friends going out of Court, to discover whether they were quite as
good friends as they had been before, but I could not see them.
I do not remember much about my own testimony. I think what I said was
true, but I am nearly sure that it was quite unimportant. The present
Lord Moulton, I remember, examined, or cross-examined me, but he did not
turn me inside out very badly, and I believe I left the Court "without a
stain on my character," according to the stereotyped phrase. At all
events the conclusion of the whole matter was that we lost our case very
handsomely. The Judge, considering the evidence of the old lady, of
Commander Stewart, of Willie Fernie and so on, said that he thought
there were sufficient witnesses to "previous user," and no doubt
"Messrs. Hutchison, Maine and Co."--I think this was the name of the
firm opposing us--fought a good fight in the best interests of the
golfer, for it would have been a bad job for us all if there had been a
monopoly in the hands of one firm of the manufacture of the rubber-cored
balls. They put the prices up against us fairly high as it was, without
that. Had there been a monopoly of manufacture we might now be paying
five shillings each perhaps, instead of half-a-crown, for the balls--a
very solemn thought. They carried this case to the Court of Appeal, but
that Court only confirmed the finding of the Court below, and thereto
added this further comment, that whether there were "previous users" or
no, they did not think that the invention in itself had sufficient
novelty for the patent to be good. So that "put the lid on," to use
homely phrase.
A while afterwards I met the American manager of a big athletic
outfitting house, and he told me that in his opinion, looking at the
thing with the commercial eye of the manufacturer, if the Kite people
had been "real cute," they would not have driven this fight to a finish.
Instead, they would have come to the Haskell people, when the case
seemed likely to go in favour of the defendants, and come to a
compromise with them. They would then have abandoned the case, as if
despairing of success, under a secret agreement with the Haskell folk to
allow them to make balls on certain agreed terms. The effect of that
would have been that the abandoning of the case would have frightened
other companies out of ever bringing the like case against the Haskell
Company, and the two might have gone on merrily working their monopoly,
at the expense of the ball-buyers, "till the cows came home." That, as
my friend the manager said, would have been "real smart," but I think we
have to congratulate ourselves that this real smartness did not commend
itself to the Scottish firm that fought and won this historic battle. We
pay enough for our golf balls even now, even under the relatively
blessed conditions of competition.
Surely it is not for me, who went no further in study of the law than to
eat, though indifferently to digest, those singular dinners at the
singular hour of six o'clock at the Inner Temple, to criticise the high
findings of the law, but it does seem to my uninstructed wisdom that if
ever there were a substantially new invention, making a new departure,
it was this of these that we then called Haskells and now call
indiarubber-cored balls. Nobody, before Haskell, had ever given them to
us as reasonable things with which to play the game of golf. He gave
them to us as the best balls hitherto invented. They spoilt the game in
a sense, it is true. The ability to hit the ball absolutely exactly has
not the same value now as in the days of the solid gutty ball; nor does
forceful hitting count for as much. On the other hand, the greater
resiliency of the ball makes the game more pleasant, especially for weak
muscles. But that, the quality of the ball, is another story. The story
the Court had to sit in judgment on was woven round about the question
whether substantially the ball was a novelty. They found that it was
not, and we all should be very thankful that they did find so; but at
the same time it is quite possible that we may think it a queer
finding.