Osborn Paper Co. v. Carrold Osborn Paper Co., 6863

• Decision Date: 14 January 1950
• Docket Number: No. 6863,6863
• Citation: 226 S.W.2d 408
• Parties: OSBORN PAPER CO. v. CARROLD OSBORN PAPER CO., Inc.
• Court: Missouri Court of Appeals

Page 408

226 S.W.2d 408

OSBORN PAPER CO. v. CARROLD OSBORN PAPER CO., Inc.

No. 6863.

Springfield Court of Appeals, Missouri.

Jan. 14, 1950.

Richard K. McPherson, Joplin, Ralph Baird, Joplin, for appellant.

Stewart E. Tatum, Joplin, Roy Coyne, Joplin, for respondent.

BLAIR, Judge.

This is an injunction suit. On January 8, 1949, appellant filed in the Circuit Court of Jasper County, the following petition:

'1. The plaintiff is and has been since the date of its incorporation, a corporation created and existing under the laws of the State of Missouri; that plaintiff was created a corporation on the 2nd day of January 1907, and has an actual paid-up capital of Eighty Thousand ($80,000) Dollars and an earned surplus, with its office, warehouse and place of business located in the City of Joplin, Jasper County, Missouri, on the west side of Byers Avenue, between Tenth and Eleventh Streets, and using as its mail address, 1024 Byers Avenue, Joplin, Missouri;

'2. That plaintiff was created for the purpose and with the powers, among others, 'to carry on a general wholesale and retail business in paper supplies and other merchandise,' and that ever since its incorporation plaintiff has engaged in said business in said city, and has an established business, with a large retail store and warehouse located in said city at the above described location, and has a large trade in the sale of paper supplies and related products in said city and surrounding territory for a radius of approximately seventy miles; that it has built up and now enjoys a large and profitable business in the aforesaid city and territory and that it enjoys the confidence and trust of the people of said community because of its financial responsibility and the manner in which its business has been conducted;

'3. That the existence and business of the plaintiff has been for many years advertised in said community and territory and is still so advertised, and that it has had and still has salesmen working in said community and territory selling its products; that the public in said community and territory has come to know the plaintiff as a company engaged in the business of dealing in paper and paper products and related supplies, and to know the plaintiff as 'Osborn Paper Company,' and regular users of paper and paper products and related supplies, such as store operators and other users of paper and paper products, have come to know and speak of it in many instances, in relation to paper and paper products and related supplies, as 'Osborn's,' and to deal with it in the purchases and sale of paper and paper products and related supplies because of its business standing and ability in its field;

'4. That at no time since its incorporation until the incorporation of the defendant, as hereinafter stated, has there been any other incorporation, association, firm or person engaged in the same or similar business in said city or community using the name of 'Osborn' as its name or any part of its name, or using the name of 'Osborn Paper Company' as its name or any part of its name;

'5. That on or about the 1st day of January, 1949, the defendant herein was incorporated under the laws of the State of Missouri under the name of Carrold Osborn Paper Company, Inc., without the knowledge or consent of this plaintiff, with its office and place of business in said City of Joplin, for the purpose of dealing in paper products, and on or about the 3rd day of January, 1949, the defendant occupied a building and business location on the northeast corner of the intersection of Tenth Street and Byers Avenue, Joplin, Jasper County, Missouri, said business location bearing the address of 929 Byers Avenue, and approximately 100 yards from plaintiff's place of business aforesaid, and is engaging in the business of selling the same products under its corporate name of Carrold Osborn Paper Company, Inc.;

'6. Plaintiff further avers, upon information and belief, that the authorized capital stock of the defendant is Fifty Thousand Dollars ($50,000) divided into Five Hundred (500) shares of the par value of One Hundred Dollars ($100) each and that the incorporators are Carrold Osborn, J. G. C. Blockwitz, Rolland O. Shadday, T. H. Strecker, and Ray E. Steele, and that the said Carrold Osborn is a minority stockholder in said corporation, and that the corporate purposes of defendant are to deal in paper and paper products;

'7. That on the 27th day of August, 1946, 674 shares of the 800 shares of the capital stock of plaintiff was sold by S. D. Osborn, O. W. Osborn, F. A. Osborn, and D. S. Osborn, and that the said plaintiff was originally organized by the grandfather of Carrold Osborn, and that his said grandfather, his father, his uncles, and Carrold Osborn have been in the employment of plaintiff, and that at the time of the sale of the said 674 shares of the capital stock of plaintiff, the purchasers thereof paid to the sellers six per centum (6%) of the book value of the said corporate stock as of December 31, 1946, for the good-will of said corporation. Plaintiff further avers that the use by defendant of the name Carrold Osborn Paper Company, Inc., is confusing in the trade area of plaintiff to its prospective customers, by reason of the association of the said Carrold Osborn, his grandfather, his father, and uncles with plaintiff;

'8. That plaintiff is not the owner of any of the stock of the defendant or of any of its property or business, and has no connection whatever with the defendant. That by reason of the fact that the distinguishing word 'Osborn' and the distinguishing words 'Osborn Paper Company' are a part of the name of the plaintiff corporation and the defendant corporation, and that the name of the plaintiff is Osborn Paper Company and the name of the defendant is Carrold Osborn Paper Company, Inc., and by reason of the fact that both corporations are engaged in the same line of business in the same city, the use of the name Carrold Osborn Paper Company, Inc., by the defendant is calculated to and will, and does, deceive or confuse the public, and the names of said corporations are so similar as to deceive, confuse or mislead the public in the belief that the defendant corporation is the same corporation as the plaintiff corporation, and that in dealing with the defendant corporation or purchasing any of its stock of goods or products it is dealing with or purchasing the stock of goods or products of the plaintiff corporation; that in consequence of the facts aforesaid, plaintiff is damaged and unless the defendant is restrained as hereinafter prayed, the plaintiff will continue to suffer irreparable damage by reason of the use of the name Carrold Osborn Paper Company, Inc., and that plaintiff has no adequate remedy at law.

'Wherefore, plaintiff prays that the defendant be perpetually enjoined and restrained from in any manner engaging in the business of selling paper products under its corporate name or any other name containing the words 'Osborn Paper Company,' or any name identical with or similar to or in imitation of the name of plaintiff, and for the costs and disbursements of this suit, and for such other and further relief in the premises as the plaintiff may in equity be entitled to.'

After some preliminary matters, which we do not think it necessary to note here, the trial court made the following statement:

'Statement of the Court: I have studied the cases in regard to this matter, and while it may be a close question, I think that in this country the right of a man to use his name is almost inviolate unless it is shown beyond any question that it is used for an ulterior motive, and I can't see that has been proven in this case. He is not a stockholder in the old company, and had nothing to do with the sale of it, and there is no restrictive clause in the sale, it is simply a transaction of stock from the old original Osborn stockholders to the present stockholders. And while I appreciate the fact that I have known that the Osborn Paper Company has been an institution in Joplin as long as I can remember, I think the mere fact that their addresses is on the same street and close together is not necessarily an indication of deliberate intent to try to make use of the name for an ulterior motive. There isn't any question but what Carrold Osborn is a person trained in the paper business and I can't agree that a man can be prohibited from using his own name. I think the decisions seem to indicate that is the true rule. For that reason I am going to sustain the motion to dismiss this application for injunction.'

On March 3, 1949, the trial court entered the following order: 'It is therefore ordered and adjudged by the Court that this cause be and the same is hereby dismissed; * * *.'

Upon its motion for a new trial being overruled, plaintiff filed its notice of appeal to this Court. The case is thus before us.

As all of the facts in the case appear in the petition of appellant, it is unnecessary to repeat any of them.

In its brief, appellant makes only two assignments of alleged error of the trial court. The first assignment is:

'The motion to dismiss admits as true all material facts well pleaded in the petition,' and cites cases and authorities purporting to support that proposition. We will not refer to these cases and authorities, since we are well satisfied that appellant has properly announced the law in that assignment of error.

The second assignment of alleged error is:

'The allegations of the petition state a claim upon which relief can be granted.' Appellant cites ten cases in supposed support of such assignment. This we regard as a more serious assignment of alleged error and it requires us to examine those cases at some length.

In reading over the case of Empire Trust Co. v. Empire Finance Corp. 226 Mo.App. 298, 41 S.W.2d 847, by the Kansas City Court of Appeals, we feel that possibly appellant has drawn its petition,...