Bell v. Serv. Coal Co.

• Decision Date: 21 May 1937
• Docket Number: No. 71.,71.
• Citation: 280 Mich. 172,273 N.W. 435
• Parties: BELL v. SERVICE COAL CO.
• Court: Michigan Supreme Court

280 Mich. 172

273 N.W. 435

BELL

v.SERVICE COAL CO.

No. 71.

Supreme Court of Michigan.

May 21, 1937.

Suit by Hilton P. Bell against the Service Coal Company. Decree for plaintiff, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Oakland County; H. Russel Holland, judge.

Argued before the Entire Bench.

Harold F. Coyle, of Detroit, for appellant.

Harry N. Dell, of Detroit, for appellee.

BUSHNELL, Justice.

Hilton P. Bell, doing business since 1930 in the city of Royal Oak and adjacent territory under the assumed name of ‘Service Coal & Ice Company,’ obtained an injunction restraining Service Coal Company, a Michigan corporation, of the city of Detroit, from publishing its name in the telephone directories of Royal Oak, Ferndale, Pleasant Ridge, Berkley, Hazel Park, Huntington Woods, and Clawson, all located in Oakland county, and in the suburban section of the Detroit telephone directory covering these communities. The injunction also ran against the Michigan Bell Telephone Company.

One of defendant's yards is about five miles east of the center of Detroit, another is about three and a half miles west, and the third is about five miles north and west. In addition to serving customers in the city of Detroit, defendant also serves those living in communities to the east, southwest, and northwest of the city. Plaintiff's yard is located some three miles north of Eight Mile road (the boundary between Wayne and Oakland counties) and about eleven miles north of the center of Detroit; it serves customers in Royal Oak and other communities located within a four-mile circle from its place of business.

Prior to October 19, 1936, there was practically no competition between the parties, each confining its activities to the localities above described. On this date, defendant applied to the telephone company and received a special listing in the Royal Oak telephone exchange under the number 10101. It was stated by the local manager of the telephone office that those numbers in the 11,000 group of the Royal Oak exchange are ‘so far removed from the remainder of the numbers in use that the operator immediately distinguishes that as a foreign exchange, so that call is transferred to the corresponding number in Detroit and the toll charge is paid for by the Detroit customer.’

We assume that this listing was designed to secure more business for the telephone company and for its subscribers. It also permitted those dealers in Detroit who obtained such telephone numbers to advertise their ‘Royal Oak Order Department’ in various newspapers, although they did not, as a matter of fact, have a place of business in that city.

The trial court was of the opinion that, since plaintiff had used the name of ‘Service Coal & Ice Company’ exclusively in the area served by him, the similar listing of defendant permitted it to injure plaintiff by diverting his customers through deception. The court found that plaintiff had priority in the adoption and use of a name in its locality so similar to that sought to be used in this method by defendant, that equity should enjoin the telephone listing as stated.

The situation thus presented is controlled by Schwannecke v. Genesee Coal & Ice Co.,...