Powell v. Mobile Cab & Baggage Co., 1 Div. 582

• Decision Date: 03 November 1955
• Docket Number: 1 Div. 582
• Parties: , 107 U.S.P.Q. 229 A. T. POWELL v. MOBILE CAB AND BAGGAGE COMPANY, Inc.
• Court: Alabama Supreme Court

Page 191

83 So.2d 191

263 Ala. 476, 107 U.S.P.Q. 229

A. T. POWELL v. MOBILE CAB AND BAGGAGE COMPANY, Inc.

1 Div. 582.

Supreme Court of Alabama.

Nov. 3, 1955.

Rushton, Stakely & Johnston and Marion Rushton, Montgomery and Caffey, Gallalee & Caffey and Jack C. Gallalee, Mobile, for appellant.

Vincent F. Kilborn, Mobile, for appellee.

GOODWYN, Justice.

This is an 'unfair competition' suit brought by appellee against appellant in the circuit court of Mobile County, in Equity, to enjoin appellant from using in his taxicab business the words 'Yellow Cab' or 'Yellow Cab Company' and the colors yellow and black in any combination likely to confuse his cabs with those of appellee. The appeal here is from the final decree granting the relief prayed for.

Although there are assignments of error questioning the propriety of enjoining appellant in any respect, we gather from appellant's brief that the claimed error insisted on is that the injunction is made operative in territory (the corporate limits and police jurisdictions of the municipalities of Prichard and Chickasaw, in Mobile County) where appellee is not licensed to do business but appellant is so licensed. The argument seems to be that the doctrine of 'unclean hands' is applicable, so as to deny to appellee the right to seek injunctive relief with respect to unfair competition in such municipalities. A further argument is that since appellee is not legally authorized to do business in said municipalities, and appellant is so authorized, appellant cannot be said to be engaged in unfair competition therein with appellee. It is insisted that the decree should be modified so as to exclude such territory from the operation of the injunction.

It does not appear that there is any serious conflict in the evidence, which was taken orally before the trial judge. The following facts appear to be established: For many years appellee and its predecessor in interest have conducted a taxicab business in Mobile under the name of 'Yellow Cab Company' and have operated 'Yellow Cabs' in connection with said business. The principal place of its business has been in the City of Mobile. At the time of filing the bill in this case it was doing a gross annual business of about $400,000 and operating between 35 and 40 taxicabs. In connection with appellee's said business it maintains a number of telephone call boxes throughout the City of Mobile, uses radios in its taxicabs, and has spent considerable money in advertising, throughout the City of Mobile and Mobile County, the name 'Yellow Cab' in connection with its taxicab business. It is licensed by the Alabama Public Commission to operate on charter or call within a radius of 50 miles of Mobile. However, the licensing Act, Alabama Motor Carrier Act of 1939, Code 1940, Tit. 48, § 301(1) et seq., Pocket Part, as amended, contains the following provision, § 301(2), subd. A(2), excluding application of the Act to the following:

'* * * (2) Motor vehicles for hire while operating wholly within the limits of a city or incorporated town or within the police jurisdiction thereof; or between two or more incorporated towns or cities whose city limits join or are contiguous or whose police jurisdictions join or are contiguous. * * *'

Appellee's cabs are painted yellow and black with distinctive designs. Each cab has on the top a yellow lighted sign bearing the word 'Yellow' on one side and appellee's telephone number on the other.

'Yellow Cab' is a trade or business name developed many years ago by the Yellow Cab Manufacturing Company of Chicago which encouraged and licensed the installation of 'Yellow Cab' taxi systems in numerous localities throughout the United States. The Yellow Cab Manufacturing Company went out of business many years ago. Mr. Robin C. Herndon, Sr., predecessor of appellee, operated under this system and continued to use the name 'Yellow Cab' after he discontinued purchasing the Manufacturing Company's cabs. In 1947 Mr. Herndon transferred his taxicab operations to the Mobile Cab and Baggage Company, Inc., appellee, which has continued the use of the name until the present time.

For several years appellant has been licensed to do a taxicab business in Prichard and Chickasaw, while appellee has never been so licensed. Appellant is not licensed to do a taxicab business in the City of Mobile.

In 1950 appellant admittedly decided 'to capitalize on the national reputation of the word 'Yellow Cab' and the yellow color in his business and in October of that year he adopted the name 'Powell's Yellow Cab' and began to operate under his license five or six yellow and black taxicabs in Prichard and Chickasaw'. On the top of his cabs he put a light similar to that used by appellee, except in place of the word 'Yellow' in front he put the word 'Powell's'. Like appellee, he put his company's phone number on the other side.

Appellant picks up passengers in Prichard and Chickasaw and sometimes discharges passengers in Mobile. Appellee discharges passengers in Prichard and Chickasaw and on a telephone call will send a cab to either of those municipalities for the purpose of picking up a customer; but appellee instructs its drivers not to pick up passengers on the streets of either. Appellant advertises, as does appellee, in the telephone directory which is common to Mobile, Prichard and Chickasaw. Introduced in evidence was a map of 'Greater Mobile' showing the location of Prichard and Chickasaw in relation to Mobile. Prichard adjoins Mobile on the north and Chickasaw adjoins Prichard on the north, the three cities constituting a single heavily populated metropolitan area known as 'Greater Mobile'. The same telephone exchange, broadcasting stations and utilities serve the entire area with their principal offices being in Mobile.

In addition to the testimony of witnesses, the parties stipulated as follows:

'That the Mobile Cab & Baggage Company, Inc., does business in the City of Mobile, Alabama, in the operation of a number of enterprises, among which is taxi operations for the transportation of passengers and small packages for hire, and that it operates there under the name of Yellow Cab Company; that the principal place of business of the Mobile Cab & Baggage Company is Mobile, Alabama, where its general offices and equipment are located, and Mr. A. T. Powell, the respondent, doing business as Powell Yellow Cab Company, owns and operates a taxi cab business of similar nature, with the City of Prichard as its principal place of business; that Mr. Powell is licensed to do business under the ordinances of the City of Prichard and the City of Chickasaw, in the manner set forth in his answer, and that the Ordinances as there set forth, or the conclusions as to the effect of such ordinances as there set forth, are accurate and correct; that the Mobile Cab & Baggage Company is licensed under the Ordinances of the City of Mobile, and that the Ordinances of the City of Mobile governing such operations are substantially to the effect as set out in the bill of complaint. It is not admitted what the purpose of the Mobile Ordinances imply. That the Mobile Cab & Baggage Company is not licensed to do business in the City of Prichard, or in its police jurisdiction, by the Ordinances of the City of Prichard, and that Mr. Powell is not licensed to do business in the City of Mobile, or its police jurisdiction, by the Ordinances of the City of Mobile, and Mr. Powell is licensed to [do] business in the ...