11 So.2d 383 (Ala. 1943), 6 Div. 49, Carter v. Knapp Motor Co.

Docket Nº:6 Div. 49.
Citation:11 So.2d 383, 243 Ala. 600
Opinion Judge:GARDNER, Chief Justice.
Party Name:CARTER et al. v. KNAPP MOTOR CO., Inc.
Attorney:Erle Pettus, of Birmingham, for appellants., Mullins & Deramus, of Birmingham, for appellee.
Case Date:January 14, 1943
Court:Supreme Court of Alabama
 
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Page 383

11 So.2d 383 (Ala. 1943)

243 Ala. 600

CARTER et al.

v.

KNAPP MOTOR CO., Inc.

6 Div. 49.

Supreme Court of Alabama

January 14, 1943

[243 Ala. 601] Erle Pettus, of Birmingham, for appellants.

Mullins & Deramus, of Birmingham, for appellee.

[243 Ala. 602] GARDNER, Chief Justice.

The Knapp Motor Company is a corporation engaged for a long number of years in the sale of automobiles in the city of Birmingham and particularly the car known as the "Hudson", holding a valuable franchise from the manufacturer for that particular vicinity. The said motor company filed this bill seeking injunctive relief against the defendants from exhibiting on the streets in the said city and in the vicinity of its place of business, a Hudson car, possessed by defendants, which has painted on the sides and on the rear a large white elephant against a dark background with the word "Hudson" in enlarged letters written above. The photographs made exhibits to the bill clearly emphasize the averments in this regard. The demurrer of the defendants to the bill as last amended was overruled, and from that decree this appeal is prosecuted.

The bill discloses that throughout the years complainant has built up a prosperous business and expended large sums of money in the establishment of a good will for itself and the products which it sells to the public, "that it bears a good name with respect to its own integrity, as well as for the integrity of its products, including the Hudson cars for the sale of which it has held for years a valuable franchise; that defendants have no business in which the symbol of a white elephant could play any part, defendant Carter being a police officer and defendant Gower a workman for an industrial concern; that the "white elephant" symbol has become established in the minds of the public as denoting something of an inferior quality, and that the name and sign have acquired and are used to cast a "slur" upon any product so designated; that people generally in speaking of any automobile or any other merchantable product as being a "white elephant" meant thereby that said automobile or product was not merchantable and was of no value; that the public did consider display of any such sign on the automobile as denoting its worthless character. It is further alleged that innumerable telephone calls and verbal inquiries have been made to complainant concerning the reason of this action on the part of these defendants,

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and inquiries have been made to complainant as to whether or not in fact the Hudson car was a "white elephant" and worthless.

As to any remedy at law the averments are: "Complainant avers that the action of the respondents in so doing is likely to result in irreparable injury to the complainant, which said injury cannot be reasonably measured by any monitary standard, and some of a large portion of said loss or injury to the complainant proximately caused by the wrongful acts of the respondents will likely be unknown to the complainant; that the loss of business likely to be incurred by the complainant is incapable of exact measurement."

In paragraph three complainant states the facts indicating purpose of defendants in thus advertising the Hudson car as a "white elephant" in the streets of the city of Birmingham, in the following averments:

"Third: Complainant avers that sometime prior to the institution of this bill, the respondents, Carter and Gower, purchased or came into control of a 'Hudson' make automobile of a recent type or year model, which they did not purchase by or secure from the complainant, and your complainant was in nowise involved in the sale of said automobile to the respondents or in the delivery of the same to the respondents. Complainant is informed and believes, and upon such information and belief avers that the said 'Hudson' automobile owned or in the control of the respondents was purchased or delivered to the respondents by some other 'Hudson' automobile dealer having no connection whatsoever with the complainant. Complainant avers that, to-wit, several months prior to the institution of this bill, the respondent Carter informed an officer of the complainant that the 'Hudson' automobile in question and the one in his possession was badly in need of some repairs, which he, the said respondent Carter, said would have to be made by the complainant without any [243 Ala. 603] charge or cost to said respondent; that after some conversation said respondent finally informed the complainant that the 'Hudson' automobile then in his possession was not performing satisfactorily and that he, the respondent Carter, would not be satisfied unless and until the complainant gave him another automobile for or in lieu of the 'Hudson' automobile then in his possession. Complainant avers that it was under no contract to perform or make said repairs or to furnish said respondent another automobile and was under no duty to do so, either legal or moral, and your complainant so advised said respondent Carter; that upon being so advised, the respondent Carter informed your complainant that 'he would be sorry about it', and that he, the respondent...

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