United Life Ins. Co. v. United Ins. Co.

• Decision Date: 02 February 1954
• Citation: 70 So.2d 310
• Parties: UNITED LIFE INS. CO. v. UNITED INS. CO. et al.
• Court: Florida Supreme Court

Page 310

70 So.2d 310

100 U.S.P.Q. 235

UNITED LIFE INS. CO. v.UNITED INS. CO. et al.

Supreme Court of Florida, Special Division A.

Feb. 2, 1954.

Rehearing Denied Feb. 26, 1954.

John R. Adams and Harry B. Fozzard, Jacksonville, for appellant.

Tilton, Floyd & Warren, Tallahassee, for United Ins. Co.

Richard W. Ervin, Atty. Gen., and Howard S. Bailey for R. A. Gray, as Secretary of State.

J. Edwin Larson, Tallahassee, as Insurance Commissioner of the State of Florida, appellees.

SEBRING, Justice.

United Life Insurance Company, a Florida corporation, doing a life insurance business in Florida on a weekly premium basis covering white lives only, brought suit against United Insurance Company, an Illinois corporation that does principally a life, accident and health insurance business on a weekly premium basis with people of the colored race, to enjoin the Illinois corporation from doing business in Florida, on the ground that the name of the Illinois corporation was so nearly similar to the name of the Florida corporation 'as to cause or tend to cause confusion', in violation of section 613.08,Florida Statutes 1951, F.S.A.The Secretary of State of Florida was made a partydefendant to the suit on the ground that the permit issued by the Secretary of State to the Illinois corporation to do business in the state was void and contrary to the language and intent of said statute.The Florida Insurance Commissioner was also made a partydefendant to the suit in order that the plaintiff might obtain a judicial determination as to the power of said defendant, under existing statutes, 'to grant or withhold authority for a foreign insurance company from doing business in the State of Florida having the same or similar name as to cause or tend to cause confusion.

In due course, the Illinois corporation filed a motion to dismiss the complaint, and an answer in which it denied that the name to be used by it in the transaction of business in Florida was so nearly similar to the corporate name of the plaintiff as to cause or tend to cause confusion in its dealings.It also averred in its answer that it 'offers to do equity by using [after its corporate name the phrase]'Of Illinois' in connection with any insurance policies or advertising in the State of Florida.'

The plaintiff moved to strike the material portions of this answer.Subsequently, the motion to strike was called up for hearing by the defendant corporation pursuant to a notice given by it that on a date specified in the notice the defendant would 'call on for hearing the motion to strike, filed by plaintiff' and 'the motion to dismiss, and for the taking of testimony' if required.

From the record in the cause it appears that the hearing was held pursuant to the notice and that at the close of the hearing the trial court made the announcement that it appeared that the sole question presented by the pleadings was a legal one; namely, whether the names of the plaintiff and defendant companies were so similar as to cause confusion if the defendant company were permitted to do business in Florida, and that as to such issue no relevant evidence could be submitted because of the fact that the defendant company had never engaged in business in Florida and consequently 'there could not have been any experience which might have been the basis of testimony to demonstrate that the names of the plaintiff and defendant * * * were so similar as to cause the confusion mentioned in the event the [defendant] were permitted to engage in business in this state * * *.'

Based upon this view as to the nature of the issues presented by the pleadings, and taking into...