Foglesong v. Foglesong Funeral Home, Inc., s. 12339 and 12339A

• Citation: 149 W.Va. 454,141 S.E.2d 390
• Decision Date: 06 April 1965
• Docket Number: Nos. 12339 and 12339A,s. 12339 and 12339A
• Court: Supreme Court of West Virginia
• Parties: , 145 U.S.P.Q. 234 Sam FOGLESONG et al., d/b/a Sam Foglesong Funeral Home v. FOGLESONG FUNERAL HOME, INC., a Corp., et al. (two cases).

Page 390

141 S.E.2d 390

149 W.Va. 454, 145 U.S.P.Q. 234

Sam FOGLESONG et al., d/b/a Sam Foglesong Funeral Home v. FOGLESONG FUNERAL HOME, INC., a Corp., et al. (two cases).

Nos. 12339 and 12339A.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1965.

Decided April 6, 1965.

Syllabus by the Court

1. Every person has a right to use his own name in his own business but such use must be made truthfully and in good faith.

2. 'The findings of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such findings.' Pt. 2, Syl., General Electric Credit Corp. v. Fields, 148 W.Va. 176 .

Ray Toler, Mullens, C. S. Worrell, Pineville, for appellants in No. 12339A and appellees in No. 12339 D. Grove Moler, Mullens, for appellants in No. 12339 and appellees in No. 12339A.

BROWNING, President.

Plaintiffs, Sam Foglesong, George Nease, Jr., and Roy Donald Neely, a partnership, doing business as Sam Foglesong Funeral Home, instituted this action in the Circuit Court of Wyoming County praying for an injunction restraining the defendants from using the name 'Foglesong Funeral Home, Inc.' or any variant thereof which is so similar to that of plaintiffs' trade name as to be likely to confuse and mislead the public. Defendants answered separately, the answer of Robertson & Foglesong, Inc., containing a cross-claim praying that plaintiffs be enjoined from further use of the name 'Sam Foglesong Funeral Home'. The individual defendants, James L. McDougal, H. E. Lilly, D. C. Farley, Jr., and D. T. Cook were dismissed, on their motion, as parties defendant.

It appears from the evidence that the defendant, Robertson & Foglesong, Inc., was incorporated in the year 1928 and since that time has been engaged in the funeral home business in Mullens and Pineville, West Virginia. Sam Foglesong, one of the plaintiffs herein, became associated in the business in 1940 and became sole owner in 1946. In 1958 he sold a majority of his stock to H. E. Lilly and others but remained in the business as president and general manager. In the year 1961 a disagreement between him and Lilly resulted in his leaving the business as a May 31, 1961. From the time he became associated in the business or, at least since he became sole owner in 1946, the company was listed in the telephone directory as 'Robertson & Foglesong, Inc.,' and 'Foglesong Funeral Home' in Mullens and the other office in Pineville had the listings 'Robertson & Foglesong, Inc.,' and 'Sam Foglesong, Undertaker'. In the clasified section of the directory all of the above listings appeared. The single word 'Foglesong' was contained on a metal plate appearing on all hearses and other automotive equipment of Robertson & Foglesong, Inc.

Upon leaving Robertson & Foglesong, Inc., in May, 1961, Sam entered into business with two other former employees as a partnership under the name 'Sam Foglesong Funeral Home' and began operating on June 9, 1961, in the former location of Robertson & Foglesong, Inc., the latter company, some two years earlier, having moved from that location to a new and modern facility on the outskirts of Mullens. Sam Foglesong, at this time, had his residence phone number transferred to his new place of business and obtained another listing for his home. Sam Foglesong Funeral Home and Robertson & Foglesong, Inc., thereupon became competitive in Mullens and during this period the evidence is in conflict as to the confusion resulting in the use of the name Foglesong in the two establishments. James L. McDougal became associated with Robertson & Foglesong, Inc., in the latter part of June, 1961, managing the Pineville branch of the business. In March, 1962, he went to Mullens and subsequently purchased the business from Lilly and began advertising the same as 'McDougal's Robertson & Foglesong, Inc.' The telephone listings remained the same as they had been since June, 1961, when Mr. Lilly had caused all of the listings except Robertson & Foglesong, Inc., at both its Mullens and Pineville branches to be deleted from the directory. In September of 1962, Mr. McDougal obtained a charter in the name of Foglesong Funeral Home, Inc., and began displaying this name on various automotive equipment of Robertson & Foglesong, Inc. He also caused this corporation to be listed in the telephone directory as Foglesong Funeral Home, Inc., with a different number from that of Robertson & Foglesong, Inc., although both corporations were located in and used the same facilities. The evidence as to the confusion alleged by both parties is conflicting and would appear to be primarily the result of errors on the part of the postal authorities in that mail addressed to Foglesong Funeral Home and giving the street address of the Sam Foglesong Funeral Home would inadvertently be placed in the Robertson & Foglesong, Inc., box. There was also some testimony that telephone calls for one of the parties would be received by the other party, but these appear in the main to have been from reople requesting Sam or one of his partners by name. There is also some evidence that at least one check was issued to Sam Foglesong Funeral Home when it should have been payable to Robertson & Foglesong, Inc. This check was endorsed in behalf of the Sam Foglesong Funeral Home and forwarded to the correct party.

At the conclusion of the evidence the trial court awarded injunctions restraining the defendants from the continued operation under the name of 'Foglesong Funeral Home, Inc.,' excepting the use by the defendants of the nameplate 'Foglesong' on their automotive equipment, and also enjoined plaintiffs from doing business as 'Sam Foglesong Funeral Home' or 'Foglesong Funeral Home' or 'Foglesong'. The injunction against the defendants included a restraint against James L. McDougal, who, as heretofore mentioned, had been previously dismissed as a party defendant. Both plaintiffs and defendants sought appeals from this order, which were granted by this Court on June 1, 1964, and July 13, 1964, respectively.

It would appear from the citation of authorities and briefs of the parties and from our research that the questions raised in this case are a first impression in this jurisdiction. However, there is abundant authority elsewhere and counsel seem to have exhausted the cases in their excellent briefs. The general rule seems well settled and provides...