Continental Ins. Co. v. Continental Fire Ass'n

• Citation: 101 F. 255
• Decision Date: 10 April 1900
• Docket Number: 880.
• Parties: CONTINENTAL INS. CO. v. CONTINENTAL FIRE ASS'N.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

101 F. 255

CONTINENTAL INS. CO. v. CONTINENTAL FIRE ASS'N.

No. 880.

United States Court of Appeals, Fifth Circuit.

April 10, 1900

PARDEE Circuit Judge.

This is an appeal from an interlocutory order refusing an injunction pendente lite to restrain the defendant from using the word 'Continental' in its corporate name in transacting insurance business in the state of Texas. 96 F. 846. The complainant, the Continental Insurance Company, is a corporation created under the laws of the state of New York with its principal office and place of business in the city of New York, and is a stock company issuing fire policies for a fixed premium only, and advertises and describes itself in its literature and in its policies as the 'Continental Insurance Company of the City of New York. ' The defendant, the Continental Fire Association, is a corporation created under the laws of Texas, with its principal office and place of business in the city of Ft. Worth, state of Texas, and is a mutual association, without capital stock but with a guaranty fund, issuing fire insurance policies on the mutual plan only, and advertises and describes itself in its literature and in its policies as the 'Continental Fire Association of Ft. Worth, Texas. ' As under and in accordance with the laws of the state of Texas the defendant was incorporated under the specific name of the 'Continental Fire Association' it has a prima facie right, certainly, under that name to carry on in the state of Texas the business for which it was incorporated; and it would seem that a foreign corporation, with no such franchise, and doing business in the state of Texas only by license, is without standing to question the right of the defendant to use in its business the name granted and authorized by the state of Texas. See Boston Rubber Shoe Co. v. Boston Rubber Co., 149 Mass. 436, 21 N.E. 875; Saunders v. Assurance Co. (1894) 1 Ch. 537. In the adjudged cases coming under our observation wherein it has been held or assumed that a court of equity can enjoin a corporation in the use of its corporate name, the controversy has generally been between corporations created by the same sovereign. See Holmes v. Manufacturing Co., 37 Conn 278; Newby v. Railroad Co., 1 Deady, 609, Fed. Cas. No. 10,144; Van Auken Co. v. Van Auken Steam Specialty Co., 57 Ill.App. 240; Hygeia Water Ice Co. v. New York Hygeia Ice Co., 140 N.Y. 94, 35 N.E. 417; Tobacco Co. v. Randle, 114 Ill. 412, 2 N.E. 536; Plant Seed Co. v. Michel Plant & Seed Co., 37 Mo.App. 313; German Hanoverian & Oldenberg Coach Horse Ass'n of America v. Oldenberg Coach Horse Ass'n of America, 46 Ill.App. 281; Merchant Banking Co. of London v. Merchants' Joint-Stock Bank, 9 Ch.Div. 560. In Goodyear's India-Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 9 Sup.Ct. 166, 32 L.Ed. 535, the alleged infringing corporation was a foreign corporation where the suit was brought. We have found no case in which a foreign corporation has been heard to complain of the corporate name given by the sovereign to a domestic corporation. In view of the fact that laches on the part of complainant in not acting more promptly in enjoining the incorporation of defendant company is herein suggested, the case of Coal Co. v. Hamblen (D.C.) 23 F. 225, is interesting. In that suit, Judge Gresham said:

'The complainant is a foreign corporation, and it is only by comity that it is doing business in Illinois at all. The state can say to it any day, 'Go.' and it must go. That being so, I do not see that the

...