Gilly v. Hirsh

• Decision Date: 18 January 1909
• Docket Number: 16,981
• Court: Louisiana Supreme Court
• Parties: GILLY v. HIRSH

48 So. 422

122 La. 966

GILLY v. HIRSH

No. 16,981

Supreme Court of Louisiana

January 18, 1909

Rehearing Denied February 15, 1909.

Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.

Action by Sidney J. Gilly against Abraham I. Hirsh. Judgment for plaintiff, and defendant appeals. Reversed in part, and affirmed in part.

Foster Milling & Godchaux and Alexis Brian, for appellant.

Henry L. Garland, Jr. (Paul Louis Fourchy, of counsel), for appellee.

OPINION

MONROE J.

Statement of the Case.

Plaintiff represents that he is engaged in business at 507 Canal street, New Orleans, as an auctioneer, selling jewelry and other personal property. That defendant has the adjoining store, in which he also sells jewelry and other wares. That for the malicious purpose of injuring him defendant has hung in his show window, adjoining the entrance to plaintiff's store, a sign, in large letters, reading:

"Don't be Misled.

This store and window display has no connection with the would-be auction, next door. Our entrance is at the corner."

That the sole object and effect of the sign is to excite the distrust of plaintiff's customers as to the honesty of his business, to his great prejudice, and that he has been damaged to the extent of $ 1,500. That defendant has repeatedly reported him to the mayor and police as --

"a criminal, carrying on an unlawful business, and has maliciously sought to injure his character and his business and by his said acts and slanderous charges and accusations has damaged petitioner in his character and reputation, in the sum of $ 1,000. That unless * * * enjoined from the further display of said sign, and from harassing petitioner, boycotting and picketing petitioner's place of business, and from button-holing and soliciting the customers entering and leaving, * * * the said Hirsh will inflict upon petitioner, and upon his business, repeated and irreparable damages and injury, for which no adequate redress could be obtained."

Wherefore he prays for an injunction and for judgment, condemning defendant in damages in the sum of $ 2,500.

In answer to a rule nisi, ordering him to show cause why a preliminary injunction should not issue, and by way of answer to the merits and of reconventional demand, defendant admits that he is exhibiting the sign, as alleged, but denies that he is doing so from any malicious motive. And he further denies that he has in any manner harassed plaintiff, or boycotted or picketed his store, or buttonholed or solicited his customers. And he alleges that the sign is necessary for his own protection, for the reason that plaintiff sells at auction, next door to defendant's jewelry store, articles of jewelry and notions upon flagrant misrepresentations as to their origin and worth and at exorbitant prices, being assisted therein by half a dozen or more cappers, or dummy bidders, who are employed to inveigle passers-by into entering said auction shop and bidding on said articles; that defendant recently caused the arrest of one of said cappers as a dangerous and suspicious character, and he was convicted and fined; that said cappers, under the direction of said Gilly, resort to all manner of artifices, both by words and acts, to induce persons who stop at respondent's show window, and who, if unmolested, would become customers of respondent, to enter said auction shop; that the said cappers, among other artifices, represent to said passers-by that said show window of respondent and said auction shop of plaintiff are one and the same place, and that the same grade and character of articles are being sold at public auction, in plaintiff's said shop, as are being displayed in respondent's show window; that the said cappers often --

"* * * gather around a prospective customer of respondent and rush and crowd him into said auction shop, thus preventing said prospective customer from entering respondent's store, and consequently resulting in damage and injury to respondent, in actual loss of business and in damage to his personal and business reputation, for which respondent reserves the right to sue in a proper proceeding; * * * that the reputation of said auction shop is bad; that it was, and is, necessary for the protection of the reputation of respondent's establishment that he give, by means of some sign, due notice to the public that his store is in no manner connected with said auction shop."

He further, and for the purposes of his demand in reconvention, alleges:

"That he is engaged in the business of retailing jewelry, notions, etc.; * * * that by fair dealing * * * he had built up a remunerative trade, and was continually increasing his business, * * * until about 18 months ago * * * plaintiff established, * * * immediately adjoining respondent's show window, a small shop, * * * where said Gilly and his employes sell jewelry, notions, etc., at auction; * * * that the auctioneer * * * is continually crying out in a loud voice, clapping his hands and making other noisy demonstrations, in his endeavors to attract people from the street, to sell his wares, and to harass respondent, his employes, and customers; that said auction shop is the rendezvous of cappers, loafers, and other dangerous and suspicious characters, who often insult, abuse, and revile respondent and his employes; that the said noise, boisterous conduct, and vile language of said plaintiff, his employes and associates * * * are distinctly audible in respondent's store, and have caused respondent damage, to his health, feelings, and peace of mind, in the sum of $ 300; * * * that the said Gilly sells in said auction shop, at public auction, articles * * * of a worthless character; * * * that said Gilly and his said employes take advantage of the proximity of respondent's store, * * * and of the attractive display of first-class goods made by respondent in his show window, to create the impression, by representations to that effect, and otherwise, among respondent's customers, actual and prospective, and the public at large, that said auction shop is part and portion of respondent's store; * * * and that respondent has been damaged, in his personal and business reputation, by being classed and associated with said shop as aforesaid, in the sum of $ 1,500; * * * that, by reason of the aforesaid noise, vile language, and disreputable dealings carried on, and of the dangerous and suspicious characters congregated in said auction shop, the same constitutes a public and private nuisance, which should be abated by injunction * * * restraining said Gilly, his agents, and employes from further operating said auction shop."

And he prays that plaintiff's...