Norton v. Chioda

• Decision Date: 02 January 1945
• Citation: 58 N.E.2d 828,317 Mass. 446
• Parties: NORTON et al. v. CHIODA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 446

58 N.E.2d 828

NORTON et al.

v.CHIODA et al.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 2, 1945.

Suit by George F. Norton and others against Augustine Chioda, William Tragis, and others seeking to restrain defendants from using on their taxicabs a color scheme and design which plaintiffs allege are similar to theirs. Decree of dismissal, and plaintiffs appeal.

Reversed and rendered except as to defendant last named, and bill dismissed as to such defendant.Appeal from Superior Court, Worcester County; T. J. Hammond, Judge.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

H. T. George and J. J. George, both of Worcester, for plaintiffs.

H. J. Dumas and W. J. Moosa, both of Worcester, for defendants.

SPALDING, Justice.

This is a bill to restrain the defendants from using on their taxicabs a color scheme and design which the plaintiffs allege are similar to theirs. The master, to whom the case was referred, filed a report which was confirmed by an interlocutory decree from which no appeal was taken. The case comes here on the plaintiffs' appeal from a final decree dismissing the bill.

The master's findings may be summarized as follows: The fourteen plaintiffs are associated in the business of operating taxicabs in the city of Worcester under the name of Independent Taxi Operators Association (hereinafter called Independent). Although the membership has changed from time to time, Independent has been operating taxicabs in the city of Worcester continually since 1926, the year it was formed. Independent's taxicabs (twenty-five in number) were owned and operated by the individual plaintiffs.

The defendants, except Lukum and Tragis, were members of an association similar to Independent, known as the Public Service Taxicab Company (hereinafter called Public), and were also engaged in operating taxicabs in Worcester. Public was formed in May or June, 1943. The defendants Lukum and Tragis, who are not members of either association, also own and operate taxicabs in Worcester. The plaintiffs and all of the defendants are competitors in the taxicab business in Worcester.

Since its formation Independent has adopted and used the following color scheme and design for its vehicles: The top, upper portion of the body, hood and mudguards are black. The lower portion of the body and the wheels are of a ‘medium dark red or maroon’ shade that is essentially the same on all the cabs. A stripe four and one half inches wide, consisting of two white lines with a black line in between, separates the upper and lower parts of the body. The letters ‘I T O A,’ in gold, are printed on the rear doors. Most of the cabs carry a roof light over the top of the windshield with a shield and letters ‘I T O A’ painted on the glass in front of the light. On the rear of the body of some of the cabs there is painted a shield containing the letters ‘I T O A’; above the shield is the telephone number of Independent.

Public since its formation has adopted a color scheme which, except for slight differences, is essentially the same as that of Independent. The stripe, however, which separates the upper and lower portions of the body is of one color-a very light bluish gray. Most of the cabs carry a roof light over the windshield with the word ‘Taxi’ on it. Across both doors on both sides of the cab, and on the rear, are the words ‘Public Service Cab’ and the telephone number. The lettering and figures on the Public cabs are white.

The defendant Lukum has been operating taxicabs in Worcester since 1921. On about March 1, 1942, he changed the color scheme of his cab (which had been yellow) to one, except for minor differences, similar to that of the plaintiffs. This was the first time he had ever used such a color scheme. The cab has a roof light above the windshield on the front glass of which is printed ‘Desoto Sky View Cab.’ These words also appear on each of the rear doors; the same words with the exception of the word cab appear on the back of the cab. All of the lettering on the cab is silver.

The defendant Tragis has been in the taxicab business in Worcester since 1920. From 1931 down to the present time he has operated one or more cabs with a color scheme (except for a black and white checkered stripe) substantially the same as that of the plaintiffs. The words ‘Checker Cab’ appear on the shield.

At present the only cabs in Worcester that are painted red and black are those of the plaintiffs and the defendants. Certain locations of the streets are designated as taxicab stands. The plaintiffs obtian about seventy-five per cent of their business from the stands or ‘off the street’ and about twenty-five per cent is obtained through telephone calls. At the time of the hearing before the master the ‘dim out’ regulations did not permit any lights on taxicabs to be lighted after dark other than ‘head’ and ‘tail’ lights unless such other lights were shielded.

The ultimate conclusions of the master based ‘upon all the evidence, the * * * findings of fact and reasonable inferences to be drawn therefrom’ were that the plaintiffs, by the long continued use of the color scheme and design upon their taxicabs and by advertising have built a business reputation with the public of the city of Worcester, and have accustomed such public to associate the color scheme and design with their business; that the use of the color scheme and design on the cabs of each of the defendants (which was adopted for the purpose of simulating that of the plaintiffs), ‘especially in the night time and at any time when the public might observe such cabs from the front only,’ is likely to lead the public to believe that the defendants' cabs are those of the plaintiffs; that the inscriptions and designs on the sides and rear of the defendants' cabs are so prominent that, in daylight or in reasonable nighttime illumination, the ordinary person would observe the same if he were in a position to see such cabs from the side or rear; and that the difference between the plaintiffs' and the defendants' cabs with respect to small lights over doors, inside markings and upholstery and colors of stripes (except as to the ‘Checker Cabs') is as to details of minor significance which the general public would not be likely to note. There was no evidence that the plaintiffs sustained any monetary loss by reason of the defendants' conduct.

At the hearing in the Superior Court the judge, after confirming the master's report, found, as agreed by the parties, that the so called army ‘dim out’ regulations referred to in the master's report had been abrogated in the areas where the defendants' taxicabs operate. He then reached the following conclusion: ‘With the ‘dim out regulations' abrogated I find that with the roof lights properly lighted and with the conspicuous lettering on the sides and rear of the defendants' cars as same are now lettered it is highly improbable that any person seeking transportation by taxicab will be misled or deceived as to the ownership of any of the defendants' taxicabs,’ and ordered the bill dismissed as against all defendants.

We think that this was error. Since the conclusions of the master were based on the evidence (which is not reported) as well as the subsidiary facts, the trial judge and this court ‘are bound by the ultimate findings unless the subsidiary facts stated are sufficient in themselves to demonstrate that the ultimate findings could not be justified upon any evidence that the master might have received.’ Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435, 17 N.E.2d 308, 311. In our opinion, the specific findings of the master do not vitiate his ultimate findings and they must stand.

On these conclusions the plaintiffs were entitled to relief. It is true that the master...