82 P. 664 | Cal. | 1905
This is an appeal from an order granting an injunction upon a verified complaint at the time of issuing the summons and without notice to the defendant. The complaint alleges substantially the following facts, viz.: Plaintiffs have for more than ten years previous to the bringing of the action, August 5, 1902, under the name of "Morton's Special Delivery," conducted the business of transferring for hire the baggage and luggage of persons from their places of landing in San Francisco to their hotels or places of destination therein, and from their hotels and residences to the depots or wharves whence they were about to depart. In that business they employed a large number of solicitors, whose business it was and is to solicit custom from travelers. Each solicitor had for some time been caused by plaintiffs, while actually employed in his work, to wear upon his hat a badge upon which is printed in conspicuous letters the word "Morton." This badge indicated to the public that the solicitor was representing the Morton Special Delivery, which is well and favorably known, and that any baggage intrusted to any solicitor wearing such a badge would be handled by the person doing business under that name. The defendant within a few months prior to the bringing of the action became engaged in the same character of business, under the name of "Morton Transfer Company." For the purpose of misleading and deceiving the public, as alleged, into the belief that he was a solicitor of plaintiffs, and that *144
they will handle all baggage intrusted to him to transfer, he has and still uses in connection with his business a badge affixed to his hat, with the single word "Morton's" thereon. Such badge is of the same size, color, and general appearance as plaintiffs' badge, and the letters thereon are precisely similar in size, color, and general appearance to those of plaintiffs' badge; the only difference being the additional "s," with an apostrophe, to the name "Morton." During such time defendant has and still does represent to the public that he is acting for plaintiffs, and by the use of this artifice he deceives the public into the belief that he represents the plaintiffs, and thereby procures from them much of their baggage for the purpose of transfer. It is alleged further that plaintiffs' business has become well and favorably known under the name of "Morton," and that as a result of the defendant's misrepresentations in the use of said badge they have been damaged in the sum of five hundred dollars, and if such use and misrepresentations are continued will suffer and sustain other damage, and that such loss or damage will be irreparable, and that they have no plain, speedy, or adequate remedy at law. All these allegations must, for the present purpose, be considered as confessed, the defendant having failed to answer. The injunction having been issued according to the provisions of section
From the foregoing summary of the complaint, evidently this position of the appellant is untenable, as the complaint certainly states facts sufficient to entitle plaintiffs to an injunction. As in Weinstock v. Marks,
The order appealed from is affirmed.
Angellotti, J., and Shaw, J., concurred.