Pan Am. Realty Corp. v. Forest Park Manor, Inc.

• Decision Date: 09 September 1968
• Docket Number: No. 1,No. 52808,52808,1
• Citation: 431 S.W.2d 144
• Parties: PAN AMERICAN REALTY CORP., a Corporation, Appellant, v. FOREST PARK MANOR, INC., a Corporation, Respondent
• Court: Missouri Supreme Court

Page 144

431 S.W.2d 144

160 U.S.P.Q. 346

PAN AMERICAN REALTY CORP., a Corporation, Appellant, v. FOREST PARK MANOR, INC., a Corporation, Respondent.

No. 52808.

Supreme Court of Missouri, Division No. 1.

Sept. 9, 1968.

Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Hyman G. Stein, Charles Alan Seigel, St. Louis, for plaintiff-appellant.

Carroll J. Donohue, Stephen W. Skrainka, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for defendant-respondent.

STORCKMAN, Judge.

This is an action to enjoin the defendant from conducting its business under a name alleged to be a colorable imitation of one long used by the plaintiff. The petition also seeks an accounting of profits and the assessment of damages. With the consent of the parties, the court ordered a separate trial of the issue for injunctive relief. The court tried this issue without a jury and rendered judgment for the defendant which was designated by the court a final judgment for purposes of appeal. Plaintiff's motion for judgment or, in the alternative, for new trial was overruled and it appealed. The parties will be referred to as they were designated in the trial court.

In a motion to transfer to the St. Louis Court of Appeals ordered taken with the case, the defendant asserts this court lacks jurisdiction of the appeal because the amount involved, exclusive of costs, does not exceed $15,000. Art. 5, § 3, 1945 Constitution of Missouri, § 477.040, RSMo 1959, V.A.M.S. The amount in dispute is the only ground of appellate jurisdiction presented. The first part of the prayer of plaintiff's petition is for an injunction; the second for an accounting of profits realized by the defendant; and the third for $100,000 as actual damages and $300,000 as punitive damages. The defendant asserts that no value for jurisdictional purposes can be put on the claim for injunctive relief or the accounting, and that it is apparent from the record that the amount in dispute is wholly conjectural and the damages alleged are nonexistent.

The plaintiff has appealed from the judgment dismissing its petition; the judgment carried with it the dismissal of the claim for $100,000 actual damages and $300,000 punitive damages. Where a plaintiff appeals from his failure to recover, the amount stated in his petition ordinarily determines appellate jurisdiction. Charles F. Curry and Company v. Hedrick, Mo., 378 S.W.2d 522, 525(1); Myers v. City of Palmyra, Mo., 355 S.W.2d 17, 18(1), 92 A.L.R.2d 791; Page v. Laclede Gas Light Co., Mo., 245 S.W.2d 23(1). On the record before us, we cannot say that the plaintiff's claim for damages is merely colorable or frivolous. If this court finds that the defendant is liable, as the plaintiff contends, we must reverse and remand for a trial of the remaining issues, including damages which are alleged to be in excess of $15,000. Therefore, this court has jurisdiction; the motion to transfer is overruled.

First, a general description of the principal subjects with which we are concerned will be helpful. Forest Park is a municipal park in the City of St. Louis. It presently consists of 1293.22 acres and is reputed to be the second largest municipal park in the United States. It contains more than one-half the total park area of the City. It is bounded by Kingshighway on the east, Skinker on the west, Lindell on the north, and Oakland Avenue on the south. It was established by an act of the state legislature in 1874 at which time the land was largely covered by forest. Some areas have been preserved in their primitive condition. In it are located numerous educational and recreational facilities such as The City Art Museum, The McDonald Planetarium, The Jewel Box which is a building designed for floral exhibitions, The Jefferson Memorial Building occupied by The Missouri Historical Society, The St. Louis Zoological Gardens, The Steinberg Memorial Skating Rink, tennis courts, golf courses, baseball diamonds, handball courts and fields suitable for playing softball, hockey, cricket, football and rugby. There are lakes and lagoons for fishing and boating, picnic grounds, hiking trails, bridle paths, archery ranges and numerous statues. Visitors are attracted to the park from beyond the limits of the city and the state. During the summer season, and especially on weekends and holidays, it has been estimated that more than 100,000 people visit the park daily. In 1904 Forest Park was the site of the Louisiana Purchase Exposition which is sometimes referred to as the St. Louis World's Fair. The Fair had exhibits from many foreign countries and was attended by visitors from all over the world. Forest Park is widely known and is considered a landmark of the City of St. Louis.

In addition to the parties to this action, other business enterprises have incorporated the words 'Forest Park' in the names of their respective businesses, including a bakery, barbeque and pizza place, drug store, envelope company, florist shop, golf shop, lumber and supply company, a market, a medical building and pharmacy. For many years there was a large amusement park on Oakland Avenue named the Forest Park Highlands. A street named Forest Park Boulevard runs into the Park on the east. The Forest Park Bus Line operates on Oakland Avenue.

The plaintiff, a Missouri corporation, operates the Forest Park Hotel at 4910 West Pine, which is in the block east of Forest Park. The hotel building was erected in 1923 and acquired by the plaintiff in 1954. Its accommodations include apartments as well as hotel rooms. The apartments are sometimes leased for terms ranging from two months to one year. The lessees of apartments are generally referred to as permanent guests. The hotel also caters to guests who stay overnight or on a day-to-day basis. These generally are referred to as transients. Located in the hotel are a barber shop, a beauty shop and a drug store. The elevators are manually operated and the operators are instructed to assist the elderly and others in need of help. The hotel has installed a health club which may be used by women guests in the daytime and by the men at night.

The defendant, a Minnesota corporation, is licensed to do business in the State of Missouri as a convalescent and nursing home under Chapter 198, RCMo, 1959. The defendant constructed a building and began operations in November 1964 at 6220 Oakland across the street from Forest Park. The defendant's place of business adjoins Deaconess Hospital on the west. The nursing home and the hospital have a transfer agreement under which they organize and share services. The building occupied by the nursing home is constructed of brick and concrete and is fireproof. It is four stories in height. The first floor is devoted to administrative services and a dining room. The three floors above contain rooms and facilities for treatment of patients. The rated capacity of the nursing home is 117 beds. At the time of trial it had 101 beds of which 100 were occupied. Some of the rooms contain four beds, some two, and some are private or single-bed rooms. It employs a staff of nurses and furnishes continuous nursing service to its patients. There is a station for nurses on each floor.

The trial court was not requested to make findings of fact or conclusions of law and did not do so. In these circumstances, all fact issues upon which no specific findings were made shall be deemed found in accordance with the result reached. S.Ct. Rule 73.01(b), V.A.M.R. Some of the points presented by the plaintiff on appeal are related and overlapping but may be generally summarized as follows: Have the words Forest Park as a designation of the kind of business in which the plaintiff is engaged become the exclusive property of the plaintiff because such name has been used continuously since 1923 in connection with its business? Are the plaintiff and the defendant engaged in competitive businesses in that they are in the same general class of business? Has the defendant's use of the name Forest Park in connection with its nursing home caused actual or a reasonable likelihood of confusion with the business conducted by the plaintiff? While the testimony on these issues is voluminous and the exhibits numerous, there is little conflict in the material aspects of the evidence. To the extent necessary, it will be related further in connection with the issues presented.

Plaintiff's petition alleged that it had for a long time operated at 4910 West Pine 'a place of lodging for permanent residents and transient guests under the descriptive name of, 'Forest Park Hotel', which said descriptive name has been and now is well known to the trade and public as 'The Forest Prak', 'Forest Park Hotel Apartments', 'Forest Park Apartment Hotel', 'Forest Park Motor Hotel and Helath Club', other such similar names.' During the trial, counsel for the plaintiff referred to plaintiff's business as 'a place of dwelling' but near the end of the case commenced to use the phrase 'a place of housing' and moved the court to change all previous references accordingly. As a kind or category of business, 'a place of housing' is entirely factitious and not controlling. The nature of the business the plaintiff is conducting is determined by the evidence and not by the words or phrase it chooses to characterize it. The evidence discloses that the plaintiff is and has been conducting a hotel business with rooms and apartments for transient and permanent guests. The president of the corporation, Mr. Alfred Jaffee, testified that the business of the Forest Park Hotel is that of 'an apartment hotel and a hotel'; that it was not licensed by the State of Missouri as a professional nursing home and did not get into that field; and that it was not in 'the medical business' or 'the nursing business'.

Section 315.010 of the statutes for the purpose of regulation defines a hotel as 'every building or other structure, kept, used, maintained, advertised or held out to...