Pearson Co. v. Cohen
| Decision Date | 19 January 1949 |
| Docket Number | 17808. |
| Citation | 83 N.E.2d 433,118 Ind.App. 699 |
| Parties | PEARSON CO., Inc., v. COHEN et al. |
| Court | Indiana Appellate Court |
Barnes, Hickam, Pantzer & Boyd, Thompson Kurrie, and Robert S. Ashby, all of Indianapolis, for appellant.
Bamberger & Feibleman, Julian Bamberger, Isidore Feibleman and Chas. Feibleman, all of Indianapolis, for appellee.
The appellant brought this action to enjoin the maintenance by appellee of a certain sign, and to prohibit the use of the word 'Furniture' in appellee's advertising, in such manner as to interfere with appellant's business. The trial court found for the appellee and denied and relief. This appeal followed.
The appellant corporation operates several stores in the city of Indianapolis. Among them is the Hoosier Outfitting Company by which name the appellant will be referred to. The appellee is a partnership trading under the name and style of Hoosier Paint and Linoleum Company.
Hoosier Outfitting Company commenced business under that name in September 1938, at 237 E. Washington Street, in Indianapolis. It then carried and still carries a complete line of furniture. Hoosier Paint and Linoleum Company commenced business under that name in October 1938, at 211 E Washington Street. It then sold paint and linoleum. Between October 1938 and July 1943 the appellee purchased the building at 211 E Washington Street, which it first occupied under lease, and the two buildings adjoining it to the east. The three buildings were later remodeled so as to make one large store room, and to make the second and third floors of the three buildings available for use in connection therewith, and an elevator was installed. The remodeling was completed in December 1945.
The appellant purchased 219 E. Washington in July 1943 and moved to that location, which is a few doors west of its previous location. Thus, by physical expansion on the part of appellee two doors to the east, and the move made by appellant three doors to the west, the parties became next door neighbors.
The appellant continued its furniture business, which included linoleum, as before. During 1945 paint and linoleum were in short supply, and the appellee gradually added furniture and appliances to its line; but the 'big opening' of appellee's furniture department took place in May 1946. Since then the appellee has carried a full line of furniture along with paint and linoleum.
Appellee ordered the sign complained of in October 1945. Installation was completed in March 1946. It is known technically as a double face sign. Running vertically, the words 'Furniture-Radios-Rugs' appear side by side. Underneath, in smaller letters running horizontally, are the words 'Hoosier Paint and Linoleum Co.' and underneath that an arrow with the word 'Entrance.' The appellant ordered its sign in November 1945. It was hung in June 1946. It is known technically as a 'V' shape sign. Running vertically the word 'Hoosier' appears in large letters. Underneath, in smaller letters running horizontally are the words 'Furniture-Appliances-Radios' one under the other. Both signs hang over the sidewalk. Appellant has a black glass-block front. Appellee's front is painted a fiery vermillion red. In large letters the words 'Hoosier Outfitting Co.' appear across the front of appellant's premises. In still larger letters the words 'Hoosier Paint & Linoleum Co.' appear twice across the front of appellee's premises. Photographs reveal the fact that the two store fronts are entirely dissimilar in appearance.
The appellant carried the slogan 'Big Store with the Black Marble Front' in its advertising. Appellee's advertising exhorted the public to 'Look for the store with the big red front.' It appears that in the face of generally better business in the furniture line, appellant's business fell off in 1946. It further appears that some of appellee's customers have gotten into appellant's store; some mail has been misdelivered; phone calls have been misdirected; and time-payment customers have entered the wrong store to make payments. About 25% of appellee's business results from the sale of furniture. The general location has become somewhat of a furniture center. Newly located stores somewhat further away might account for a falling off in appellant's business. The appellee habitually displays furniture in the east window of its store, that being the window alongside appellant's west display window.
Based on the evidence as above condensed and a personal inspection of the premises, the trial court denied the appellant (plaintiff) and relief. Thus the appellant is confronted with a finding against it which is negative in character. And so we are not only denied the right to weigh the evidence--we are also without authority to reverse unless the evidence, as construed most favorably to the appellee, entitled the appellant to relief...
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