Foss v. Culbertson

• Decision Date: 28 April 1943
• Docket Number: 28895.
• Citation: 57 U.S.P.Q. 341,136 P.2d 711,17 Wn.2d 610
• Court: Washington Supreme Court
• Parties: FOSS v. CULBERTSON et al.

136 P.2d 711

17 Wn.2d 610, 57 U.S.P.Q. 341

FOSS v. CULBERTSON et al.

No. 28895.

Supreme Court of Washington

April 28, 1943

Department 1.

Action by M. V. Foss, doing business under the assumed name and style of University Transfer Company, University Transfer &amp Storage Company, and University Moving & Storage Company against R. G. Culbertson, Seattle Terminals University Warehouse, Inc., a corporation, sued as Seattle Terminals Company, Inc., a corporation, and Pacific Telephone &amp Telegraph Company, to restrain the first two defendants from using the word 'university' in connection with transfer, moving, storage, or warehouse business, and to restrain the Pacific Telephone & Telegraph Company from publishing in its telephone directories any such names. From the judgment rendered the plaintiff appeals and defendants Culbertson and Seattle Terminals University Warehouse, Inc. cross-appeal.

Judgment modified on plaintiff's appeal and, as modified on plaintiff's appeal, judgment affirmed on defendants' cross-appeal.

Appeal from Superior Court, King County; James B. Kinne, judge.

William A. Gilmore and W. H. Cook, both of Seattle, for appellant.

Case & Laube and Patrick A. Geraghty, all of Seattle, for respondents.

JEFFERS Justice.

This action was instituted in the superior court for King county, by W. V. Foss, who claimed to be doing business under the assumed names of University Transfer Company, University Transfer and Storage Company, and University Moving and Storage Company, for the purpose of obtaining an injunction restraining defendants R. G. Culbertson and Seattle Terminals Company, Inc., a corporation, from using the word University in connection with their transfer, moving, storage or warehouse business, either by signs, letters or advertising, or using the trade name University in any manner whatsoever in connection with the transfer, moving, storage or warehouse business in the city of Seattle, and restraining defendant Pacific Telephone & Telegraph Company from publishing in its telephone directories any such names.

The cause came on for hearing Before the court upon the issues raised by plaintiff's complaint, the answer of defendants Culbertson and Seattle Terminals Company, Inc., and the separate answer of the telephone company. On April 18, 1942, the trial court filed a memorandum opinion, and on June 5th following, signed findings of fact, conclusions of law and judgment, which were filed on June 6, 1942.

The evidence shows the following facts: In 1920, plaintiff entered the transfer and baggage business in Seattle, on Corliss avenue, under the name King Auto Transfer, and continued to so operate at this location until 1932, when he moved his office to the 4100 block on University Way. The business was what Mr. Foss termed a transfer business, and he used three trucks. Mr. Foss continued in this location for about three months, when he moved his office to 4124 Roosevelt Way, where he continued to operate until 1935, at which time he formed a partnership with George W. Wilcox, who then was operating a transfer business under the name University Transfer Company.

After the partnership was formed, the business was moved to 4301 University Way, where it was operated under the names University Transfer Company, University Transfer & Storage Company, University Moving & Storage Company, and King Auto Transfer. This partnership continued for two years, when Mr. Foss bought the interest of Mr. Wilcox in the business, including the good will and trade names.

Mr. Foss testified that he continued to operate the business under all of the trade names at 4301 University Way, up to 1937-38; that on November 18, 1937, he filed with the clerk of King county a list of the trade names under which he was operating, these being University Transfer Company, University Transfer & Storage Company, and University Moving & Storage Company; that at the time of filing the trade names, he was in the business of moving furniture and baggage, general hauling and storage.

Plaintiff subsequently moved to 1409 East Forty-second street, where his office now is.

George W. Wilcox, hereinBefore referred to, testified that in 1935 he purchased from Charles Walsh the University Transfer Company, which included the University Transfer & Storage Company and University Moving & Storage Company; that he operated under the name of University Transfer Company; and that he had a moving and storage business, although he owned no warehouse. He further testified that he sold his interest in the business to Mr. Foss in December, 1937; that the sale to Mr. Foss included all the rights he had acquired from Mr. Walsh in the University Transfer Company and the other two trade names, including good will.

Charles M. Walsh, from whom Mr. Wilcox purchased the University Transfer Company, testified that he purchased the business from a Mr. Bailey, who had purchased it from a Mr. Jensen, and that Jensen started the business in about 1905. Mr. Walsh further testified that he operated under three names, University Transfer Company, University Transfer & Storage Company, and University Moving & Storage Company, and had filed these assumed names with the county clerk; that he operated under these names from 1921 to 1935, when he sold to Mr. Wilcox; that during his operations he spent considerable money in advertising the business and building up good will; that one of the methods used in advertising the business was the preparation and distribution of thousands of pamphlets; that he also advertised in the Tribune and Northwest Progress, and the University papers; that he advertised continuously in the newspapers, the purpose of such advertising being to acquaint people in the community with the name of his business. Mr. Walsh had the name University Transfer & Storage Company on his van.

(It thus appears that in 1937, when Mr. Foss purchased from Mr. Wilcox the latter's interest in the University Transfer Company, Mr. Foss acquired all the interest Mr. Wilcox had acquired from Mr. Walsh in the University Transfer Company, the trade names University Transfer & Storage Company and University Moving & Storage Company, and whatever good will there may have been in connection with these names in the community.)

While it appears that at one time Mr. Foss had a small place used for storage, it does not appear that since 1937 he has had a storage warehouse, or has been in the storage or warehouse business. He did, however, have an arrangement with at least two warehouse companies, whereby goods which he hauled could be stored in their warehouses. The receipt for the goods so stored was issued to the owner, and Mr. Foss received as commission from the warehouse company the first month's storage charge.

It is admitted that Mr. Foss does not now have, and that he has never had, a license to operate a warehouse, as required by Rem.Rev.Stat.Supp. § 11569-1 et seq. The warehouse act is a comprehensive act, and among other provisions, it requires that every warehouseman shall obtain a license to operate a warehouse. It provides for filing a schedule of rates, and for inspection and supervision by the department of public service. Section 11569-8 provides in part: 'Any person not a licensed warehouseman under, or excepted from the provisions of this act, who shall display on any building, vehicle, billboard or in any other manner, any advertisement of, or by circular, letter, newspaper, magazine, poster, or card to advertise, storage of property shall be guilty of a misdemeanor and punishable as such.'

Leon Herkenrath, called by defendant, testified that he was a warehouse inspector and field agent for the department of public service, which position he had held since 1935; that the department considered warehouse companies and transfer companies separate businesses, and had promulgated different rules covering each business. This witness further testified that complaint had been made that Mr. Foss was doing a storage business without a license, and that he called on Mr. Foss and found he had a small amount of household goods in storage. The inspector ordered Mr. Foss to get rid of the goods he had in storage, and discontinue that type of operations, and that was the extent of the difficulty, as far as storage business was concerned.

While R. G. Culbertson and Pacific Telephone & Telegraph Company are named as defendants in this action, our reference hereinafter to the defendant shall be deemed to be Seattle Terminals Company, unless otherwise specifically mentioned.

It does not appear that subsequent to 1937, plaintiff has used on his trucks or on the window of his office or in the Seattle telephone directory, any name other than University Transfer, which appeared on his trucks, and University Transfer Company, which appeared on the window of his office and in the telephone directory, until some time after defendant had begun to use the name University in connection with its moving and storage business, at which time plaintiff caused to be placed on the window of his office, under University Transfer Company, the names University Transfer & Storage Company and University Moving & Storage Company.

The testimony of Mr. Foss shows that there has been some confusion as the result of defendant's use of the word University in connection with its business; that calls came into plaintiff's office intended for defendant; that plaintiff received calls from people in regard to damage to goods claimed to have been hauled by plaintiff, when plaintiff had never hauled the goods; that plaintiff had received checks for services not performed by him; that on at least two occasions, the trucks of both plaintiff and defendant appeared at the same place at the...