Opinion
18618.
ARGUED JUNE 15, 1954.
DECIDED JULY 13, 1954. REHEARING DENIED JULY 27, 1954.
Injunction. Before Judge Atkinson. Bibb Superior Court. March 25, 1954.
Clarke Anderson, Miller, Miller Miller, for plaintiff in error.
Bloch, Hall, Groover Hawkins, contra.
1. The rules of procedure and practice recommended by the Supreme Court pursuant to Georgia law (Ga. L. 1945, p. 145), and enacted by the legislature (Ga. L. 1946, p. 726), are matters over which the legislature had always theretofore, with the complete acquiescence of the judiciary, exercised jurisdiction. The Constitution of 1945, art. VI, sec. II, par. VII (Code, Ann., § 2-3707), does not change the jurisdiction, but refers only to rules for the operation of the Supreme Court which this court alone can adopt. The 1953 act (Ga. L. 1953, Nov.-Dec. Sess., p. 279) is a valid amendment, and under it the bill of exceptions was presented in time, and the motion to dismiss is denied.
2. The 26 special grounds of the motion for new trial, complaining of the allowance and disallowance of evidence, of excerpts from the charge, and failure to charge, are all without merit.
3. There was evidence to support the verdict, and the general grounds are without merit.
ARGUED JUNE 15, 1954 — DECIDED JULY 13, 1954 — REHEARING DENIED JULY 27, 1954.
This case is an equitable one involving alleged trade-name infringement, brought by the plaintiff in error to enjoin the defendants in error from using in the name of their drive-in eating establishment in Macon, Georgia, the word "Varsity," thereby engaging in unfair competition with the petitioner and infringing upon his trade name, "The Varsity," under which he has continuously operated in Atlanta, Georgia, since 1928. In the first appearance here, Gordy v. Dunwody, 209 Ga. 627 ( 74 S.E.2d 886), this court ruled that the lower court was in error in sustaining both general and special demurrers in so far as the allegations relating to the trade name are concerned, but not as to infringement of trade-mark or in striking certain allegations as to interference with future expansion of the petitioner's business. The case is now here after a trial in the lower court in which the jury returned a verdict in the form of answers to two questions submitted to the jury, the answers being against the contentions of the plaintiff. The exception is to a judgment denying a motion for new trial containing 29 grounds, 26 of which are special grounds added by amendment.
Seven of the grounds complain of the allowance in evidence of certain testimony or refusal of the court to strike certain testimony of witnesses. Grounds 4, 5, 10, 18, and 19 complain of the allowance in evidence of testimony as to the existence of other varsity eating establishments in other parts of Georgia and throughout the country. The grounds of complaint, in substance, are that the existence of such eating establishments other than in Georgia was not a material factor, and the petitioner's claim is that he only has an interest in the name as it applies to drive-in eating establishments in Georgia. Ground 9 complains of the allowance in evidence of information as to the status of Gordy's business, on the ground that it was irrelevant and immaterial since he was not claiming that this establishment had caused him to lose business. Ground 11 complains of hear-say testimony as to what a group of boys had told a witness in a "bull session" as to the fact that the businesses were not connected in any way. Ground 15 complains of testimony admitted in a deposition of one of the defendants that radio spot announcements of the Macon drive-in had contained the words "locally owned," because the witness admitted he had not heard the radio spot advertisements. Grounds 16 and 17 complain of the refusal of the court to strike testimony of a witness in regard to signs he had painted for eating establishments which contained the word "Varsity." Ground 20 complains of the allowance in evidence of the testimony of the defendants' manager that neither business was affected by the other on the ground that it was an illegal conclusion of the witness. Ground 21 complains of the admission in evidence of county court records showing the trade-name registration of a partnership, and its later dissolution to be thereafter conducted by only one of the partners, of an Augusta eating establishment using the word "Varsity."
Six of the grounds complain of the exclusion of evidence. Ground 6 complains of the exclusion of testimony of an employee of Gordy that a number of persons had complained to him of the quality of the food served in the Macon establishment. Grounds 7 and 8 complain of the exclusion of evidence that Gordy had had trouble before in instances in which the word "Varsity" had been used in the name of other eating establishments, and in one case in Cobb County he had obtained an injunction against the use thereof. Ground 12 complains of the exclusion of testimony that at one time the defendants had thought to compromise the case with Gordy. Ground 13 complains of the exclusion of testimony of one of the defendants, who also was in the brick business, as to what his attitude was in regard to other businesses using the same name as his brick business. Ground 14 complains of the exclusion of testimony of another defendant with regard to the building and opening of Pig'n Whistle eating establishments in several other places in Georgia.
Three of the special grounds complain of excerpts from the charge. Ground 24 complains of an excerpt that the jury, in determining whether or not the public would be likely to be deceived, would think of the public as composed of ordinarily prudent persons or reasonably cautious persons; the ground of complaint being that the test is not whether the public would be likely deceived, but whether a reasonably cautious person might be. Grounds 25 and 26 are complaints as to excerpts that, in order for the plaintiff to prevail, he must establish by a preponderance of evidence either that the word "Varsity" was used with the actual intention to deceive or mislead, or that it is such an imitation that the nature and probable tendency of such usage is to deceive the public, because it failed to charge that by the use of the word "Varsity" plaintiff had acquired a right in its usage such that its use by the Macon establishment in an area where plaintiff's establishment and good will was known he would be entitled to recover irrespective of any actual intent to deceive the public.
Special grounds 27, 28, and 29 complain of the failure to charge as requested in writing, in substance, that (a) there was such an imitation here that a reasonably cautious person might confuse the two, (b) the mere fact that there are other eating establishments using the word "Varsity" would not constitute a defense, and (c) intent is one's state of mind and can be proved by circumstances from facts proved.
Grounds 22 and 23 are complaints of the failure of the court to submit special questions to the jury for findings of fact by special verdict, and because the court erred in submitting other special questions, and no others, to the jury for findings of fact by special verdict. The questions which were submitted and rejected were as follows:
"1. Has the plaintiff used in his business the trade name `The Varsity' for substantially the period of time set forth in his petition? Answer yes or no.
"2. Did the plaintiff register his trade name and trade-mark as set forth in his petition? Answer yes or no.
"3. Did the defendants, or any of them, know at the time of the commencement of their business by them in Macon, Georgia, known as `Varsity Drive-In,' that the plaintiff had the right of use of the trade name `The Varsity'? Answer yes or no.
"4. Is the business of the plaintiff in Atlanta, Georgia, and the business of the defendants in Macon, Georgia, of the same type that is, do they both serve food and beverages to their respective customers? Answer yes or no.
"5. Are the methods of the defendants in their business in Macon, Georgia, and of the plaintiff in his business in Atlanta, Georgia, substantially the same in the serving of their respective customers? Answer yes or no."
The questions actually submitted were as follows:
"1. Was or is the use of the defendants of the word `Varsity' in their operations and trade name originally or subsequently with the intention of deceiving and misleading the public into the belief that the goods and services of the defendants are the goods and services of the plaintiff?
"2. Was or is the use by the defendants of the word `Varsity' in their operations and trade name such an imitation of the plaintiff's operations and trade name that the nature and probable tendency and effect of such usage would be to deceive the public and pass off defendants' goods or business as that of the plaintiff?"
The complaint is that the questions offered by the plaintiff covered the issues of fact which the jury had to decide and were not covered by the actual questions submitted.
A motion to dismiss the bill of exceptions has been filed on the ground that it was tendered and certified twenty-six days after the judgment complained of here was rendered, and since it was filed too late this court is without jurisdiction.
1. By section 1 of Georgia Laws 1945, p. 145, it appears that the legislature intended to exercise, in conjunction with the Supreme Court, jurisdiction over rules of procedure and practice in the courts; and this court before acting thereunder so construed that act by expressing the opinion that the legislature intended to maintain separation and independence of the departments as provided by the Constitution (Code, Ann., § 2-123). Thus construed, the act merely continued the exercise of legislative jurisdiction over a subject that had long been conceded to fall within the jurisdiction of the legislature. This court, however, expressly reserved the exclusive constitutional power to adopt its own rules, but proceeded to aid the legislature with its request in the 1945 act. See Ga. L. 1946, p. 726, and Ga. L. 1953, Nov.-Dec. Sess., p. 440. This court recommended, and the legislature approved, fixing a time limit of 20 days in which bills of exception must be presented after judgment. Ga. L. 1946, p. 735. This was done solely to satisfy a public demand for avoiding useless delays in court procedure and because it could be done without hardship or injustice. But by the 1953 act (Ga. L. 1953, Nov.-Dec. Sess., p. 279) this time was changed to 30 days. More than 20 but less than 30 days lapsed between the judgment here and the tender of the bill of exceptions, and the motion to dismiss is based upon this fact and the contention that the 1953 act is unconstitutional and void.
The Constitution of 1945, art. VI, sec. II, par. VII (Code, Ann., § 2-3707) provides: "The Supreme Court shall have power to hear and determine cases when sitting in a body, under such regulations as may be prescribed by it." This clause of the Constitution fully invests the Supreme Court with the sole power to prescribe rules for its operation, but does not even purport to invest this court with power to prescribe rules of procedure and practice in the trial courts. Code (Ann.) § 2-3704 of the same Constitution vests in the General Assembly the power to prescribe conditions as to the right to a review of a case in the Supreme Court. In addition to the foregoing, we think our repeated recognition of the 1946 act as valid legislation clearly shows that this court regarded those rules as coming within the jurisdiction of the legislative department. See W. T. Rawleigh Co. v. Forbes, 202 Ga. 425 ( 43 S.E.2d 642); Williams v. Williams, 203 Ga. 231 ( 46 S.E.2d 65); West Lumber Co. v. Harris, 204 Ga. 343 ( 50 S.E.2d 15); Beasley v. Georgia Power Co., 207 Ga. 188 ( 60 S.E.2d 363); Wright v. Hardin, 209 Ga. 368 ( 72 S.E.2d 769).
The 1953 amendment is valid, and the limit of 30 days in which to tender a bill of exceptions as therein fixed is the law. The motion to dismiss is denied.
2. There are 26 special grounds, and counsel, though failing to cite any authority for most of them, makes a general insistence upon each ground. We have carefully examined each ground, but are not going to needlessly lengthen this opinion by setting forth each and then disapprove it. We shall discuss only those grounds which are close enough to be questionable.
The last ground excepts to the failure to charge a timely written request as follows: "I charge you that intent is one's state of mind and can be proved by circumstances and from inferences from facts proved. I charge you that when a charge is made against a person in a suit in court and such person does not appear and testify in his own behalf and deny or explain the charge against him, a jury has the right to infer that the charge is well founded." A request to charge must be perfect. Lewis v. State, 196 Ga. 755 ( 27 S.E.2d 659). The last sentence in this request is obviously an incorrect statement of law. Therefore the exception is without merit. Likewise, and for the same reason, grounds 27 and 28 are without merit.
Ground 24 excepts to an excerpt from the charge to the effect that, in order for the plaintiff to recover, it would be necessary for the facts and circumstances to be such as would likely deceive the public. Paragraph 31 of the petition alleges such facts and circumstances. The test seems to be, if the public is likely to be deceived, and a person of ordinary caution misled. Saunders System v. Drive It Yourself Co., 158 Ga. 1, 8 ( 123 S.E. 132); Atlanta Paper Co. v. Jacksonville Paper Co., 184 Ga. 205 ( 190 S.E. 777); Gano v. Gano, 203 Ga. 637 ( 47 S.E.2d 741). There is no merit in this ground. And for the same reason grounds 25 and 26, also complaining of excerpts from the charge, are without merit.
Ground 21 excepts to the ruling admitting in evidence certified copies of public county records, kept in accordance with law. Moody v. Gilbert, 208 Ga. 784 ( 69 S.E.2d 874), and Young v. Young, 209 Ga. 711 ( 75 S.E.2d 433), are relied upon to support this complaint. The evidence was in the only form the law would permit.
Then counsel asserts that ground 20 presents the most obvious error of any of the grounds. This ground complains because the defendants' manager was allowed to testify that the defendants' business was not affected in any way by the plaintiff's business and vice versa. The testimony was objected to because the question called for an illegal conclusion of the witness, and the witness was not qualified to give that conclusion or opinion which would only be a wild guess. Although counsel cite in support of this ground Mayor c. of Milledgeville v. Wood, 114 Ga. 370 ( 40 S.E. 239); O'Neill Mfg. Co. v. Harris, 127 Ga. 640 ( 56 S.E. 739); Moore v. Dozier, 128 Ga. 90 ( 57 S.E. 110); Churchill v. Jackson, 132 Ga. 666 ( 64 S.E. 691, 49 L.R.A. (NS) 875, Ann. Cas. 1913E, 1203); McCray v. State, 134 Ga. 416 ( 68 S.E. 62, 20 Ann. Cas. 101); and Roberts v. Moore, 136 Ga. 790 ( 72 S.E. 239) — the grounds of the objection were so obviously no reason for excluding the testimony that we think further discussion unnecessary. See Creswill v. Grand Lodge K. P., 133 Ga. 837 ( 67 S.E. 188, 134 Am. St. R. 231, 18 Ann. Cas. 453); Kay Jewelry Co. v. Kapiloff, 204 Ga. 209 ( 49 S.E.2d 19).
Since the other special grounds are without merit, the amendment to the motion is wholly without merit.
3. The general grounds are insisted upon despite the indisputable fact that the evidence is in conflict on the material issues, as enumerated in our former opinion in Gordy v. Dunwody, 209 Ga. 627, 634, supra.
The court did not err in denying the motion for new trial as amended.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., who dissents.
I dissent from the ruling in headnote 1 and the corresponding division of the opinion, and for that reason from the judgment of affirmance.