88 P. 26 | Utah | 1906
This is an action for equitable relief by injunction. The material allegations contained in the complaint in condensed form are, in substance, as follows: .That the plaintiff (hereafter designated appellant) is a corporation, and for many years last past has been established in, and conducting a public telephone business in, Salt Lake City, Utah, with about six thousand subscribers using its telephone and exchange system. That during all of said years appellant had established and maintained for its own, and for the convenience of its patrons, certain departments, one of which is known and designated as “Trouble Department,” and the telephone number for said department is 888. That sard Trouble Department, with said number, was established and was used, and is used, for the purpose of making it possible and convenient for the patrons of appellant to notify it of any trouble or imperfections that may arise or occur in operating the telephones used by such patrons, with a view of having the same put in order when they become defective or out of order.
The only error assigned is the ruling of the court in sustaining the objection to the introduction of any evidence in support of the allegations of the complaint and in dismissing the action. Did the court err in this respect? In view of the foreging proceedings the answer of the respondent becomes immaterial, and the question to be determined arises solely upon the allegations of the complaint. The demurrer ore tenus admits all the facts well pleaded. Taking the facts, therefore, as admitted, does the complaint state a cause of action entitling appellant to the relief prayed for, or to any relief? While the action is novel and original in what is sought, the principles upon which counsel for appellant attempt to rest the case are not only old in themselves, but well established. The only question, therefore, is: Do the facts alleged bring the case within any of these principles ?
Nor would the fact that some of appellant’s patrons subscribed for and used respondent’s telephones in consequence of the use of the number 888, as alleged, give the appellant a right to an injunction unless, perhaps, the subscribers were obtained by a method of what in law is termed unfair competition or unfair trade. That the matters complained of in this case do not bring it'within those terms is well illustrated in the cases of Deering Harvester Co. v. Whitman & Barnes Mfg. Co., 91 Fed. 376, 33 C. C. A. 558; Dennison Mfg. Co. v. Thomas Mfg. Co. (C. C.), 94 Fed. 651, and by many of the cases hereinafter cited. Unfair competition as we understand it, consists in one person imitating by some device or designation the wares made and sold by another for the pur
All that the respondent can learn, therefore, is whose telephone is defective, and this only can be so when one of the patrons of appellant makes a mistake by carelessly using the telephone of respondent instead of that of appellant. Is respondent to be enjoined from conducting its business in its own way simply because it has so organized it that careless people may use its telephones for a certain purpose, not for pay, instead of those of appellant, who is a competitor of respondent in the same business? Is it not likewise apparent that the public, generally — that is, such as are using telephones, and are not subscribers to appellant’s system — cannot be affected in this way. Neither can those who are subscribers or users of either systems alone be mistaken, unless they use the telephone of sonfe other subscriber. Is respondent to be held legally responsible for occurrences of this character ? Surely it cannot seriously be contended that respondent organized its system and is conducting it in that way for the sole purpose of benefiting itself from chance occurrences such as those above mentioned. • But suppose it is true that respondent does learn of trouble in respect to appellant’s telephones by the means alleged. It could not profit from this unless it can convince the subscriber, using appellant’s telephone, that respondent’s system is the better one, and is better calculated to serve his purpose, in that it is less liable to cause trouble. This, if competition is permissible in the telephone business', would seem to be legitimate competition. Dp to this point, therefore, respondent does not seem to have practiced any deceit, nor fraud, nor misrepresentation, but has simply openly announced to all that its Trouble Department is connected with telephone 888, which is the same number used by ap
There is no claim in this- case that the number 888, either
From the foregoing views it follows that the court committed no error in sustaining the objection complained of, and in dismissing the action.
The judgment, therefore, is affirmed with costs.