CITE:  5 N.Y.S. 131
CMON:  March 1989
PLAIN: Bristol
DEFND: Equitable Life Assurance Society of the United States
COURT: New York Supreme Court
DATE:  March 29, 1989

[See also 132 N.Y. 264, 30, N.E. 506 (N.Y.Ct. App., Mar. 22, 1892)]

Appeal from special term, New York county.
Action by John I.D. Bristol against the Equitable Life Assurance Society
of the United States, to recover money due by contract, and for an
accounting. Judgment dismissing complaint, and plaintiff appeals.

  Method of soliciting insurance neither patentable nor copyrightable as idea.

Argued before Van Brunt, P.J., and Macomber, J.

The complaint is filed to obtain an accounting from the defendant and
a recovery of a suitable sum of money to compensate the plaintiff for
communicating to the defendant, through its president, a new system of
soliciting life insurance, which, after a confidential disclosure thereof
to the president of the defendant, was alleged in the complaint to have
been adopted by the defendant. The details of the new scheme or system
of transacting the business of soliciting life insurance is said, by the
complaint, to be contained in Exhibit A, which is annexed thereto, and
consequently, for a thorough examination of the case, that document 
requires close inspection.

This exhibit consists of a letter (dictated) bearing date February 4,
1885, addressed to the president of the defendant. After stating, at
some length, the success of the plaintiff's new system in other States
and with other companies, it says:

    "Underlying the whole system of work is a common-sense plan of
    advertising (without which nothing really succeeds in this country),
    calling the attention of large insurants to the company and the
    policies issued by it, and inducing business men to insure largely,
    even when naturally opposed to life insurance. Of course, this
    system takes some money, but this can be partially taken from the
    ordinary advertising expenses -- newspaper advertising and tons of
    printed matter, much of which is really useless. Capital and
    intelligence is the basis of every large application. The commercial
    agency reports, etc., are the guides to these men. A letter worded
    just right and not too long, mailed from the right place, from a
    party having just the right title, and written on a letter-head
    arranged in just the proper way, it is the greatest advertisement
    a company can possibly have, if carefully followed up. They do not
    attract the attention of rival agents, interest just the proper
    party, and thousand dollars expended in this way will secure many
    times the amount of business that any other method of advertising
    possibly can, especially as it is only the preliminary work for
    an agent's call * * *

    "Propositions follow under this method: An agent calls, is received
    by a gentleman like a gentleman, and a very large application is
    frequently written on the first interview. The insurant becomes a
    friend of the company and of the agent. The ratio of losses on such
    business is small, and untaken policies a rarity, from the reason that
    the applicant has not been 'bored' into taking what he does not want,
    but has been carefully worked so as to desire what he has received;
    a dignity is thus given to the business that no other method gives,
    and men of dignity and character can follow it with pleasure and
    satisfaction. Many agents have tried to work my methods from seeing
    letters or circulars, but very few such attempts have been successful.
    From a thousand letters from dates of birth, for instance, they have
    received less than three or four per cent of replies, and many of
    these have been 'jokes,' but when I have carefully instructed the
    agents how to use a series of letter blanks for responses, etc., a
    very different result immediately manifests itself. I inclose, as
    proof of this, a couple of letters from the Cleveland general agent
    of this company. A stronger commendation of my methods of work could 
    not be well given; you will notice form the spelling of these letters
    that the agent is not highly educated, which is still stronger proof
    that agents can successfully work these plans after being taught." * * *

    "When the applicant is not secured on the first interview or attempt,
    and had been given up for the time, another opportunity comes with
    every year on 'change of age.' This takes another complete system of
    work, and the results have been in every way favorable; a very large 
    proportion of the business at my general agency being now secured in
    this way. Sometimes a circular to fit peculiarities of the business
    is necessary. I have written a great many, and inclose one of which
    over a million and a half have been printed. They have been extensively
    used by many of your general agents. If the Equitable would adopt this
    system, and the writer with it, I think a marked increase of business
    would inevitably follow. It would be necessary that I should be some
    sort of an officer of your company on a salaried position, with,
    perhaps, a percentage on the work secured under my schemes. Perhaps
    that $75,000 per year you mention could be realized. Would not care
    to take a general agency, as I have a very nice business under way 
    now. You can think this all over, and when you see me return the
    inclosed letter and tell me what your insurance intuitions indicate.
    I am to call for the photo of Dr. Bristol, you know, and that will 
    give you an opportunity to do this. In the meantime I need hardly
    to say that this letter must be considered of the most confidential

    "Very respectfully yours,

It does not appear that the plaintiff has copyrighted the above idea and
confined it to a definite and certain combination of words and phrases
which might be printed and publicly declared to be his own system of
business, no does it appear that he has patented or registered the mode
of introducing the matter of life insurance to the public. He stands,
therefore, solely upon the proposition that he is the possessor of an
idea which, when combined with skill in any soliciting agent, with or
without a disposition on the part of the persons solicited to be insured,
is of great value to the party to whom it may be divulged.

The learned counsel for the plaintiff takes this view of the case, for
he says in his brief  "We possess as absolute a right over our thoughts
as we have over the brain cells whose rhythm gives to the sensational
impulses the thought form, and whether we use the thought form to mold 
words with our mouth or bricks with our hands, the product is equally
our property." If this proposition were perfectly sound, there would be
no occasion for the existence of either copyright or patent-right law,
which is designed to secure not the ideas but the products of ideas of 
inventive genius, and that, too, for only a limited period.

It is difficult to conceive how a claim to a mere idea or scheme,
unconnected with particular physical devices for carrying out that idea,
can be made the subject-matter of property. So long as the originator of
the naked idea, whether, germinating under the laws of metaphysics, it
be regarded as Platonic or Cartesian in its make-up, keeps it to himself,
it is his exclusive property, but it ceases to be his own when he permits
it to pass from him. As the ingenious counsel for the defendant say, it
is like commercial paper, it passes by delivery. Ideas of this sort 
in their relation to property may be likened to the interest which
a person may obtain in bees and birds, and fish in running streams,
which are conspicuous instances of ferae naturae. If the claimant keeps
them on his own premises, they become his qualified property, and
absolutely his so long as they do not escape. But if he permits them to
go he cannot follow them. It is not necessary to cite authorities under
this head because the principle is elementary.

It is evident, however, that it was not the defendant alone that the
plaintiff made a disclosure of his ideas, for he says: "Many agents have
tried to work my methods from seeing letters or circulars, but very few
such attempts have been successful." It seems, therefore, that it is not
the use of the plan adopted, but the successful use of it, upon which
the plaintiff relies for a cause of action. If the defendant, in adopting
this system, had taken its author with it, as the plaintiff proposed,
then his scheme of exploiting life insurance would have assumed a tangible 
form, and, in the absence of an agreement fixing the value thereof, he
would be entitled to such compensation as his services were actually
worth; but that indispensable part of the scheme or system was not adopted
by the defendant, and hence no cause of action has accrued to the plaintiff.

On the whole, we do not think that the ideas disclosed by the complaint
and the exhibit thereto possess any property rights which are susceptible
of protection under our system of law.  And yet, though it is clear that
we have no statute or common law which prohibits the plaintiff from 
"inducing business men to insure largely, even when opposed to life
insurance", if considerations of public policy are to be regarded, the
plaintiff, while violating no law, would render himself open to the
criticism of the Augustan poet -- Invitum qui servat, idem facit occidenti.

The judgment should be affirmed, with costs.  VAN BRUNT, P. J., concurred.
Judgment affirmed, with costs.