Lampert v. Judge & Dolph Drug Co.

• Citation: 119 Mo. App. 693,100 S.W. 659
• Court: Court of Appeal of Missouri (US)
• Decision Date: 05 June 1906
• Parties: LAMPERT v. JUDGE & DOLPH DRUG CO. et al.<SMALL><SUP>*</SUP></SMALL>

100 S.W. 659

119 Mo. App. 693

LAMPERT v. JUDGE & DOLPH DRUG CO. et al.^*

St. Louis Court of Appeals, Missouri.

June 5, 1906.

1. DAMAGES — NOMINAL DAMAGES — EXTENT OF DAMAGE NOT SHOWN — INFRINGEMENT OF TRADE-MARK.

Where defendants sold cigars other than those manufactured by plaintiff from a box bearing plaintiff's registered trade-mark, the plaintiff is entitled to nominal damages, though no actual damages are proved.

2. TRADE-MARKS — INFRINGEMENT — PUNITIVE DAMAGES.

An infringement of trade-mark by the sale of cigars of another make from a box bearing plaintiff's registered trade-mark does not warrant the allowance of punitive damages.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by one Lampert against the Judge & Dolph Drug Company and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed on condition.

Frank K. Ryan, for appellants. Jamison & Thomas, for respondent.

BLAND, P. J.

Plaintiff is a manufacturer of cigars, which he sells under the name "Flor de Lampert," and uses therewith a picture of himself as a trade-mark. The defendant Judge & Dolph Drug Company is a corporation, and conducts a drug store in the city of St. Louis, in which it has a cigar department. Defendant Taylor is an employé of the corporation, and head clerk or salesman in the cigar department. The substance of the petition is that plaintiff had been engaged in the business of manufacturing cigars under the above name in the city of St. Louis, and selling them to the trade in said city for a period of about 15 years before the commencement of this suit; that about February 26, 1902, plaintiff caused his trade-mark to be filed in the office of the United States Commissioner of Patents at Washington, D. C., and enjoyed the exclusive use of said trade-mark; that to keep up the reputation of his cigar, he used the best quality of tobacco, and expended large sums of money in advertising its superior qualities, and that his sales were large and his gains and profits proportionately large; that between March 11, 1902, and February 15, 1904, he sold and delivered to the defendant corporation, quantities of his cigars in boxes stamped with his trade-mark that defendants, "well knowing the great reputation and fame of plaintiff's cigars for excellent quality, did wrongfully, willfully, and wickedly substitute and place other cigars, which were a cheap and inferior quality of cigars, in the boxes bearing the label or trade-mark of the plaintiff, and sold to their customers and the public such inferior quality of cigars as and for the cigars manufactured by the plaintiff, thereby intending to, and did, injure the plaintiff, and did thereby intend to, and did, injure the reputation of the cigars so manufactured and sold by said plaintiff under said trade-mark, and thereby intending to, and did, cheat and defraud the public and their customers." Actual damages were laid at $5,000. A like amount was separately prayed for as punitive damages. The answer put in issue the substantial allegations of the petition. The jury found the issues for plaintiff and assessed his actual damages at $1 and punitive damages at $500.

Plaintiff's evidence tends to prove all the material allegations of his petition, and shows that defendant Taylor, clerk in the cigar department of the Judge & Dolph drug store, sold a few cigars (less than 20) from a box having on it plaintiff's trade-mark, but which had not been manufactured by plaintiff, and were inferior in quality to those made by him. No substantial damages were shown: Taylor, the clerk, admitted that on one occasion he placed about 20 cigars of another make in an empty box bearing plaintiff's trade-mark, but claimed they were superior in quality to those made by plaintiff. Taylor gave as an excuse for the substitution, that he had no light colored cigars of plaintiff's manufacture at hand, and made the substitution to accommodate his customers until he could procure others from the general stock of the drug company then on hand. He testified that the act of substitution was his own, and done on his own initiative and responsibility, without the knowledge or consent of any of the officers of the defendant corporation. The officers of the corporation all testified that they had not given their consent to the substitution, and knew nothing whatever about it until after Taylor was arrested by a United States revenue officer, charged with a violation of the United States revenue law for making the substitution. Taylor was charged and arraigned by the United States authorities for a violation of the United States revenue law, pleaded guilty and was fined $25. Mr. Judge, one of the officers of the drug company, advanced the money to Taylor to pay his fine, and the company retained him in its employ thereafter. The sales of cigars by the drug company amounted to from 80,000 to 90,000 per annum, and the evidence shows it handles about 150 different brands.

1. The defendants insist that their instruction for a compulsory nonsuit (asked at the close of all the evidence) should have been given, on the ground that plaintiff was not entitled to nominal damages and no actual damages were proven by the evidence, and cited Barnett v. Leuchas, 13 L. T. N. S. 495, and Saxlehner v. Eisner & Mendelson Co. (C. C.) 88 Fed. 61-70, as supporting their contention. Both of these cases were in equity, and both asked for restraining orders. In the Leuchas Case the defendant had boxed...