Opinion
March 10, 1950. Rehearing Denied April 24, 1950.
Appeal from the Circuit Court for Hillsborough County, Harry N. Sandler, J.
Wm. C. McLean, Tampa, for appellant.
W. Marion Hendry and Edward I. Cutler, Tampa, for appellees.
At the conclusion of the appellant's evidence, offered in support of her prayer for injunction, the chancellor dismissed the bill, and this appeal followed. It does not seem necessary to analyze separately the allegations and the proof because the facts are well established and the salient ones uncontradicted. The question for our determination is purely one of law.
The appellant is the widow of Harold D. May, sole legatee under his will, and executrix of his estate. The three individual appellees are the brothers of her deceased husband. To determine the case it will not be necessary to refer to the appellee corporation, which is only a nominal party.
The four brothers were associated with their father in the well drilling business for many years, and upon the father's death they continued the business together as his heirs. In 1936 the appellees transferred all their interest, including equipment and good will, to the testate, and this transfer was confirmed by bills of sale in 1940. So, from 1936, the testate continued the business under the title of "May Brothers Well Drilling Company," and it bears that name now. This trade name was registered by the testate in 1943 with the clerk of the circuit court in compliance with Chapter 20953, Laws of Florida, Acts of 1941, F.S.A. § 865.09 and in 1948 the appellant registered it with the Secretary of State.
After the transfer in 1936 the appellees were employed intermittently by their brother, while at other times they were engaged in other pursuits. In 1949 they began to operate a competitive concern next door to the premises of the appellant, adopting the title, which is displayed conspicuously at their place of business, "May's Well Drilling Pump Company, by the May Boys."
The appellees procured telephone service under the title "Mays Well Drilling Pump Co." and to this no exception is taken by the appellant. But they went further and had their business listed also as "May Boys," followed by the words, in small type, "Well drilling," and it is this act of which the appellant complains and which she sought to enjoin because the latter designation gives the appellees a preferred position in the directory, immediately preceding hers. One consulting either directory sees, in the following alphabetical order "May Boys," "May Bros Well Drilling Co.," and "Mays Well Drilling Pump Co." (Italics supplied.)
The chancellor thought that nothing more had occurred than "normal confusion which frequently results from a similarity of names," and dismissed the bill on authority of Gottdiener v. Joe's Restaurant, 111 Fla. 741, 149 So. 646. In the cited case a former employee of "Joe's" or "Joe's Restaurant" established a restaurant close by, where he displayed a sign reading "Little Joe's Restaurant" or "Little Joe," the word "Little" being in obscure letters. The effect of the ruling was that all words in the title should be made equally prominent so that patrons of "Joe's Restaurant" would not become confused, but would be apprised by the adjective in its proper size that there was a distinction between the two places. The court adopted as authority for its ruling the statement of the law in 63 C.J., beginning at page 431, with reference to the use of one's own name in the light of rules to insure fair competition. It is stated in this authority that, although the use of a person's own name cannot be absolutely enjoined, still it may be regulated if it is being used unfairly, dishonestly, or in bad faith, that is, for the purpose "of pirating upon the good will and reputation of a rival by [the person's] passing off his goods or business as the goods or business of his rival who gave the name its reputation and value." See El Modelo Cigar Manufacturing Co. v. Gato, 25 Fla. 886, 7 So. 23, 6 L.R.A. 823, 23 Am.St.Rep. 537.
The reputation of the business presently operated by the appellant had been fixed through a period of many years by the appellees' father, their brother, and indeed by appellees themselves working with their father and their brother. When they entered the field, after themselves transferring the good will, they should have been content with the firm name they first chose, without going farther and adopting an alternative which gave them, and which we think was calculated to give them, a preferential position in the list of subscribers and the classified directory of the telephone company. That act, in the light of all the circumstances, smacks strongly of unfairness. We think that such preferential treatment in the telephone book cannot be swept aside as inconsequential, for it is common knowledge that there is vast use, not only of the list of subscribers, but also of the classified index in the transaction of business in this modern day The similarity of the terms "May Boys" and "May Brothers" adds emphasis to the appellant's contention.
We conclude that the chancellor erred, and the case is therefore reversed for proceedings consistent with this view.
Reversed.
TERRELL, CHAPMAN and HOBSON, JJ., concur.
ADAMS, C.J., and ROBERTS, J., dissent.
SEBRING, J., not participating.