United Factories v. Brigham

• Decision Date: 07 June 1938
• Docket Number: No. 24502.,24502.
• Citation: 117 S.W.2d 662
• Parties: UNITED FACTORIES, Inc., v. BRIGHAM.
• Court: Missouri Court of Appeals

117 S.W.2d 662

UNITED FACTORIES, Inc., v.BRIGHAM.

No. 24502.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Rehearing Denied June 21, 1938.

Appeal from St. Louis Circuit Court, Division No. 18;M. Hartmann, Judge.

"Not to be published in State Reports."

Suit by United Factories, Inc., against James W. Brigham, doing business under the name Brigham Oil Burner Company, for libel.From an adverse judgment, the defendant appeals.

Reversed and remanded.

Wayne Ely and Lyon Anderson, both of St. Louis (Leahy, Walther, Hecker & Ely, of St. Louis, of counsel), for appellant.

M. W. Borders, Jr., of Kansas City, and Ethan A. Shepley, of St. Louis (Borders, Borders & Warrick, of Kansas City, and Nagel, Kirby, Orrick & Shepley, of St. Louis, of counsel), for respondent.

HOSTETTER, Presiding Judge.

This is a suit for damages for libel, begun in the circuit court of the city of St. Louis, Missouri, on the 17th day of January, 1935.

The petition alleged, in substance, as follows: That plaintiff was a Missouri corporation engaged in the manufacture and sale of an oil burner known as "The Heat King Oil Burner", and that the defendant owned and operated an oil burner business under the name, "Brigham Oil Burner Company", and that during the months of October and November, 1934, the defendant printed and distributed to plaintiff's customers and dealers the following bulletin, containing false, malicious, and libelous language:

"Dealers Confidential Information "BulletinNo. 62.

"My attention has been called to the presence in the market of obsolete inferior cast iron burners and as so many dealers have requested information on this burner in order to overcome this competition, this special bulletin is being issued.

"The easiest way to overcome competition from burners of this sort is to compare these crude cheaply constructed burners with an advanced type burner such as the Brigham Blue Flame Burner.Be thorough in your explanation—remember the prospect knows nothing of the science of oil burning, and is easily `fooled' by extravagant claims, trumped-up testimonials, and trick price offers, now being made by the manufacturers of these burners.

"Figure 1 illustrates a type of burner that is again making an appearance in the oil burner market after an absence of several years.Every progressive burner manufacturer discarded this type of burner years ago as being obsolete, crude, and impractical.It is being revived, however, at this time as its cost of manufacture is ridiculously low (being only a few iron castings, a globe valve, and a few fittings) and offers an opportunity for an unscrupulous company to capitalize on the present interests in oil burning, make a killing, and get out.These burners are being sold retail for about $15.00 and sell to the dealer for $10.00.

"In Figure 2 is shown the various parts of this burner.You will note how crudely the oil is burnt, it is merely dripped into a small retaining cup over which a blast of air is induced.This results in incomplete combustion which causes smoke, soot, and little heat in proportion to the amount of oil consumed.The burner is extravagant, dirty, and as the entire drafts are sealed with the exception of the small intake door over the burner, the air rushes into the stove with a roaring noise.As the flame is dirty it is impossible to close or seal the damper as can be done with the blue flame burner and the result is a tremendous loss of heat through the stack.

"Referring back to Figure 1, you will note the burner is placed in the ashbox of the stove especially on the heater models, and it is necessary to cut or drill a large hole in the draft door to accommodate the air intake.This cannot be done without mutilating the stove, or without the aid of special tools.It would be necessary to remove the lower draft door from the stove, and have the hole drilled at a machine shop in order to do a good job.Compare this with the ease of installation of the Brigham burner.

"This type burner is not and cannot be approved by the National Board of Fire Underwriters as it has no overflow safety features, nor can there be any device attached which would stop the overflow of oil in the event the burner should go out due to a temporarily congested feed pipe, or a back draft in the chimney.It is very unsafe and its installation would prejudice, if not entirely cancel any fire insurance policies carried by the home owner.Consult your insurance man, he will verify this statement.Remember—the Brigham Oil Burner is approved by the National Board of Fire Underwriters in the USA, the National Research Council in Canada, and by various other testing institutes, and Fire Marshals.This is your assurance that the burner is safe and dependable, and will live up to every claim that is made for it.

"The companies selling this burner at the present time are high pressure mail order `ballyhoo' artists who make a trick offer, which while seemingly a bargain does not include the tank, pipe, or fittings.The customer, of course, does not discover this until he has placed his order.When he gets through buying the equipment necessary to place this burner in operation it will cost him more than the Brigham Burner, and he will still have a crude, inefficient burner.Remember—the Brigham Burner is priced to you complete in every detail—tank, aluminum tubing, fittings, in fact every screw, bolt, and nut furnished.

"In Figure 3 you will find illustrated a burner which is known as a pot-type burner.This operates on much the same principle as the burner illustrated in Figure 1, and enjoys all of its disadvantages such as incomplete combustion, extravagant oil consumption, and noisy operation.Its installation is as difficult as the burner shown in Figure 1, it being necessary to completely seal in this burner around the grate line with tin, cement, asbestos, and sand.In both of the burners illustrated a strong draft is the first essential and if this is not present the burner is doomed to failure.

"Use the information given you above to overcome unfair competition from this type burner, and by explaining to your prospect the difference between these burners and the modern up to date blue flame type you will have no trouble landing the sale.Remember—no shady proposition can stand the light of truth.

     "Brigham Oil Burner Company."
                

It was further alleged that the drawings, figures 1 and 2, and the printed descriptions contained in said bulletin, were intended, and were understood by the person receiving said bulletin, to refer to plaintiff's oil burner, although plaintiff's name did not appear in said bulletin.The prayer of the petition was for $25,000 actual damages, and a like sum for punitive damages.

The defendant's answer consisted of a general denial, and a plea that the statements in said bulletin were true.

The cause was tried to a jury and was concluded on the 11th day of June, 1936, the jury returning a verdict in favor of the plaintiff for $4,000 actual damages and $1,000 punitive damages, upon which verdict a judgment was rendered, and, following an unavailing motion for a new trial, the defendant brings the cause to this court by appeal for review.

The plaintiff, during the development of its case, called Albert L. Kaysing as its witness, and it developed that he was employed by defendant as sales manager.The plaintiff also called the defendant himself, James W. Brigham, as its witness.Kaysing, the employee, testified that he had distributed about 1,500 of the offending bulletins, No. 62, before the defendant learned about their distribution, and, when he did learn it he ordered the distribution to be discontinued, and, defendant himself, testified to the same thing.

Both parties herein were engaged in the manufacture and sale of oil burners, and their methods of selling were practically the same.Both contacted prospective purchasers, through advertising in journals, newspapers, and magazines, and such purchasers became agents for further sales in their respective localities.

The plaintiff began the manufacture and sale of "The Heat King Oil Burner" in January, 1934, operating under a license from the then patent owners, and from June, 1934, as owner of the patent, having purchased the same.This oil burner had been off the market for about ten years, the owners of the patent having ceased to manufacture it in 1924.This burner was made of cast iron, and its cost of manufacture was $3.11, and it sold for $15.This sale price did not include an oil tank or any fittings.It has never been approved by the National Board of Fire Underwriters.

The Brigham Oil Burner Company was started in 1932 by the defendant.The business is not incorporated.Mr. Kaysing, the Sales Manager, and a Mr. Goldstein, are in active charge of the business, and bulletin 62, which forms the basis of the present action, was issued by Mr. Kaysing, without the knowledge or consent of the defendant.In fact, as soon as defendant Brigham learned of the existence of this bulletin, he immediately ordered Kaysing to stop sending it out.

The bulletin did not refer to plaintiff or its product by name, nor were the drawings intended to represent the particular burner of plaintiff, but were meant to illustrate only a certain type of burner.There were about five or six burners of that type in the field at the time.Inasmuch as the bulletin, which is the basis of this...