Chapter VIII: Interference with Advantageous Relations (2)

Mr. Moulton sought to distinguish the present case by saying that all that Lord Denman referred to was one tradesman saying that his goods were better than his rival’s. That, he said, is a matter of opinion, but whether they are more healthful and more nutritious is a question of fact. My Lords, I do not think it is possible to draw such a distinction. The allegation of a tradesman that his goods are better than his neighbor’s very often involves only the consideration whether they possess one or two qualities superior to the other. Of course “better” means better as regards the purpose for which they are intended, and the question of better or worse in many cases depends simply upon one or two or three issues of fact. If an action will not lie because a man says that his goods are better than his neighbor’s, it seems to me impossible to say that it will lie because he says that they are better in this or that or the other respect. Just consider what a door would be opened if this were permitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The Court would then be bound to inquire, in an action brought, whether this ointment or this pill better cured the disease which it was alleged to cure—whether a particular article of food was in this respect or that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better. As I said, advertisements and announcements of that description have been common enough; but the case of Evans _v._ Harlow, 5. Q. B. 624, was decided in the year 1844, somewhat over half a century ago, and the fact that no such action—unless it be Western Counties Manure Co. _v._ Lawes Chemical Manure Co., L. R. 9 Ex. 218—has ever been maintained in the Courts of Justice is very strong indeed to show that it is not maintainable. It is, indeed, unnecessary to decide the point in order to dispose of the present appeal.

For the reasons which I have given I have come to the conclusion that the judgment of the court below cannot be sustained, even assuming the law to be as stated by the learned judges; but inasmuch as the case is one of great importance, and some additional color would be lent to the idea that an action of this description was maintainable by the observations in the court below, I have thought it only right to express my grave doubts whether any such action could be maintained even if the facts brought the case within the law there laid down.

Upon the whole, therefore, I think that the judgment of Romer, J., was right and ought to be restored and that this appeal should be allowed, with the usual result as to costs; and I so move your Lordships.

_Order of the Court of Appeal reversed; Judgment of Romer, J., restored, with costs here and in the Court of Appeal; Cause remitted to the Chancery Division._[544]

STONE _v._ CARLAN
SUPERIOR COURT, NEW YORK, 1850.
_Reported in 13 Law Reporter, 360._

The important facts of this case appear in the opinion of the court.

CAMPBELL, J. A motion is made for an injunction restraining the defendants from using the names “Irving Hotel,” “Irving House,” “Irving,” &c., upon their coaches and upon certain badges worn by defendants upon their arms and hats. The complainants have an agreement with the proprietors of the Irving House, in this city, under which they are permitted to use the name of such proprietors, and the name of their hotel, upon their coaches and the badges of their servants; the complainants paying therefor a stipulated sum, and having also entered into bonds for the faithful discharge of these duties. All the porters are engaged in carrying passengers and their baggage to and from the hotels, boats, railroad depots, &c.

It was well remarked by the Master of the Rolls, in Croft _v._ Day, 7 Bevan, 84, that “No man has a right to dress himself in colors, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest that to do these things is to commit a fraud, and a very gross fraud. I stated upon a former occasion, that, in my opinion, the right which any person may have to the protection of this court does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud; and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others.” I entirely concur in the foregoing views. The question is, whether the defendants have committed a fraud. I cannot doubt that their intention was to mislead, and to induce travellers to believe that they were servants of the proprietors of the Irving House. This is a large and popular hotel, well known in the country, and many a traveller may wish to resort to it on his arrival in this city, who, at the same time, may not know whether the carriages of the proprietors are painted red or white, or whether the exact designation is that of the Irving House or Irving Hotel. Such traveller may wish to intrust himself and his baggage to the servants of the hotel, feeling that, in doing so, he would be protected against loss or damage by the responsibility of the proprietors. Now, in this case, it can hardly be doubted but that the object of the defendant was to induce the belief on the part of the travellers that they were the servants of this hotel. To induce such belief, it was not necessary that the resemblance of all carriages and badges should be complete. From the very circumstances of the case, it would not be necessary to have a perfect resemblance, in order to commit even a gross fraud. It is not necessary to go, in this case, the length of the ordinary cases of trade-marks, though this case might come within the rules of those cases. (See Coates _v._ Holluck, 2 Sanford Ch. R., and Notes, and cases there cited.) The false pretences of the defendants would, I think, necessarily tend to mislead. The defendants have a perfect right to engage in a spirited competition in conveyance of passengers and their baggage. They may employ better carriages than the plaintiffs. They may carry for less fare. They may be more active, energetic, and attentive. The employment is open to them, but “they must not dress themselves in colors, and adopt and bear symbols,” which belong to others. I had some doubt, at the time of the argument, whether the complaint should not have been made by the proprietors of the Irving House; but, on further reflection, think that the suit is well brought. The plaintiffs are the real parties in interest. It is possible that, owing to the general liability of the proprietors, as innkeepers, for the loss of the property of guests, the proprietors might also be entitled to an injunction restraining the defendants from holding themselves out as the servants of the hotel.

An injunction must issue, as prayed for, against all the defendants.[545]

HUGHES _v._ McDONOUGH
SUPREME COURT OF JUDICATURE, NEW JERSEY, NOVEMBER, 1881.
_Reported in 43 New Jersey Law Reports, 459._

On writ of error.

The substance of the declaration was, that the plaintiff was a blacksmith and horseshoer by trade, of good character, &c.; that he had obtained the patronage of one Peter Van Riper, and that on a certain occasion he shod a certain mare of the said Van Riper in a good and workmanlike manner; that the defendant, maliciously intending to injure the plaintiff in his said trade, &c., “did wilfully and maliciously mutilate, impair and destroy the work done and performed by the said plaintiff upon the mare of the said Van Riper, without the knowledge of the said Van Riper, by loosing a shoe which was recently put on by the said plaintiff, so that if the mare was driven, the shoe would come off easily, and thus make it appear that the said plaintiff was an unskilful and careless horseshoer and blacksmith, and that the said mare was not shod in a good and workmanlike manner, and thus deprive the said plaintiff of the patronage and custom of the said Van Riper.”

The second count charges the defendant with driving a nail in the foot of the horse of Van Riper, after it had been shod by the plaintiff, with the same design as specified in the first count.

The special damage laid was the loss of Van Riper as a customer.

Argued at June term, 1881, before Beasley, Chief Justice, and Justices Scudder, Knapp and Reed.

The opinion of the court was delivered by

BEASLEY, C. J. The single exception taken to this record is, that the wrongful act alleged to have been done by the defendant does not appear to have been so closely connected with the damages resulting to the plaintiff as to constitute an actionable tort. The contention was, that the wrong was done to Van Riper; that it was his horse whose shoe was loosened, and whose foot was pricked, and that the immediate injury and damage were to him, and that, consequently, the damages of the plaintiff were too remote to be made the basis of a legal claim.

But this contention involves a misapplication of the legal principle, and cannot be sustained. The illegal act of the defendant had a close causal connection with the hurt done to the plaintiff, and such hurt was the natural and almost direct product of such cause. Such harmful result was sure to follow, in the usual course of things, from the specified malfeasance. The defendant is conclusively chargeable with the knowledge of this injurious effect of his conduct, for such effect was almost certain to follow from such conduct, without the occurrence of any extraordinary event, or the help of any extraneous cause. The act had a twofold injurious aspect: it was calculated to injure both Van Riper and the plaintiff; and as each was directly damnified, I can perceive no reason why each could not repair his losses by an action.

The facts here involved do not, with respect to their legal significance, resemble the juncture that gave rise to the doctrine established in the case of Vicars _v._ Wilcocks, 8 East, 1. In that instance the action was for a slander that required the existence of special damage as one of its necessary constituents, and it was decided that such constituent was not shown by proof of the fact that as a result of the defamation the plaintiff had been discharged from his service by his employer before the end of the term for which he had contracted. The ground of this decision was that this discharge of the plaintiff from his employment was illegal, and was the act of a third party, for which the defendant was not responsible, and that, as the wrong of the slander became detrimental only by reason of an independent wrongful act of another, the injury was to be imputed to the last wrong, and not to that which was farther distant one remove. In his elucidation of the law in this case, Lord Ellenborough says, alluding to the discharge of the plaintiff from his employment, that it “was a mere wrongful act of the master, for which the defendant was no more answerable, than if, in consequence of the words, other persons had afterwards assembled and seized the plaintiff and thrown him into a horse-pond by way of punishment for his supposed transgression.” The class of cases to which this authority belongs, rests upon the principle that a man is responsible only for the natural consequences of his own misdeeds, and that he is not answerable for detriments that ensue from the misdeeds of others. But this doctrine, it is to be remembered, does not exclude responsibility when the damage results to the party injured through the intervention of the legal and innocent acts of third parties; for, in such instances, damage is regarded as occasioned by the wrongful cause, and not at all by those which are not wrongful. Where the effect was reasonably to have been foreseen, and where, in the usual course of events, it was likely to follow from the cause, the person putting such cause in motion will be responsible, even though there may have been many concurring events or agencies between such cause and its consequences. This principle is stated, and is illustrated by a reference to a multitude of decisions in Cooley on Torts, 70, _et seq._...[546]

The principles thus propounded must have a controlling effect in the decision of the question now before this court, as they decisively show that the damage of which the plaintiff complained was not, in a legal sense, remote from the wrongful act. What, in point of substance, was done by the defendant, was this: he defamed, by the medium of a fraudulent device, the plaintiff in his trade, and by means of which defamation, the latter sustained special detriment. If this defamation had been accomplished by word spoken or written, or by signs or pictures, it is plain the wrong could have been remedied, in the usual form, by an action on the case for the slander; and, plainly, no reason exists why the law should not afford a similar redress when the same injury has been inflicted by disreputable craft. It is admitted upon the record that the plaintiff has sustained a loss by the fraudulent misconduct of the defendant; that such loss was not only likely, in the natural order of events, to proceed from such misconduct, but that it was the design of the defendant to produce such result by his act. Under such circumstances it would be strange indeed if the party thus wronged could not obtain indemnification by an appeal to the judicial tribunals.

HUGHES _v._ SAMUELS BROTHERS
SUPREME COURT, IOWA, OCTOBER 17, 1916.
_Reported in 179 Iowa Reports, 1077._

GAYNOR, J. Plaintiff and defendant both reside in the city of Storm Lake, and each is and was engaged in the retail furniture business, and, as an incident thereto, carried on a business of undertaking. Defendants are a copartnership.

The plaintiff claims: That on the 6th day of October, 1914, the defendants falsely and maliciously composed and published of and concerning the plaintiff the following:

“Bear in mind our Undertaking Department. Satisfaction guaranteed.

(Signed) H. L. Hughes.”

That the defendants caused the same to be printed upon a card and mailed to the address of one Albert Cattermole, a citizen and resident of Storm Lake. That at the time the card was mailed the wife of the said Cattermole was lying critically ill in a hospital in Storm Lake. That of this fact the defendants had full knowledge at the time they composed and published said statement. That they composed and published it for the malicious purpose of injuring the plaintiff in his reputation and business as aforesaid. That the same as so published tended to provoke plaintiff to wrath, and expose him to public hatred, contempt, and ridicule, and to deprive him of public confidence and esteem and social intercourse. That the same was further published for the malicious and wicked purpose of causing the said Albert Cattermole and members of his family, and others to whom the said card or letter might become known, to believe that plaintiff sent the card, and for the further purpose of inducing the said Cattermole to refrain from patronizing the business of the plaintiff. That the publication was further made for the purpose of inciting indignation and hatred in the minds of said Cattermole and the members of his family towards the plaintiff and his business as an undertaker, and that it did this. That similar cards were sent to other persons under similar circumstances, and for the purposes aforesaid.

To this petition defendants filed a demurrer, the substance of which is, that the plaintiff’s petition stated no cause of action; that the words published were not libellous _per se_, and no special damages are alleged to have been suffered by the plaintiff on account of its publication. This demurrer was sustained by the court. Plaintiff elected to stand on his pleading and not to plead further, and his petition was thereupon dismissed, and from the action of the court in the premises plaintiff has appealed to this court....

It appears that Cattermole’s wife was sick unto death at the time this card was composed by defendants and sent to him. The defendants knew this fact at the time they composed and mailed the card. We take judicial notice of the fact that the city in which the parties resided was not so populous that the active business men of the city were not known to each other and to the general public. The card was so framed and mailed by the defendants as to lead the receiver to believe that the plaintiff had composed and mailed it, and this was their purpose in mailing it. What possible reason could they have in preparing and publishing this card? Was it to help a rival? Was it to exploit the business of a rival? Was it intended as a letter of credit to the public by and through which he would be better installed in its confidence and esteem? Is this the usual and ordinary course of procedure on the part of rival business firms? With the largest charity, we cannot think this was the purpose of the publication. What, then, was the purpose in the minds of these defendants when they composed and sent these cards to the sick and dying in the community? Was it not rather, as the petition says, to deprive him of public confidence and esteem? Was it not rather to expose him to public contempt and ridicule? Was it not rather to divert business through this means from the plaintiff, and to injure him by such diversion?

Cattermole’s wife was sick unto death at the time he received this card; confined in the hospital. What impression would this card make upon his mind? Would it not bring before him the spectacle of a vulture waiting to prey upon the dead? A man without sympathy for the living because he found more revenue in the dead? What is it these defendants meant by this thing that they have done? What end had they in view? We think, surely, that which the petition charges, to wit, to injure the plaintiff in his reputation and business, to expose him to public contempt or ridicule, to deprive him of public confidence and esteem. What, then, would be the natural and ordinary effect of such a card upon the mind of one to whom it was sent, under the conditions attending Cattermole? Surely it would bring the sender of such a card, under the conditions then existing, into contempt and hatred, and deprive him of public confidence and esteem. Can the thought be entertained for a moment that after the receipt of a card like this under those circumstances, that the receiver would patronize the sender in the event the stricken wife had died? Was it to secure this for the plaintiff that the card was sent?

Published words which directly tend to the prejudice or injury of a person in his office, profession, or business are actionable. Williams _v._ Davenport, 42 Minn. 393, 44 N. W. 311, 118 Am. St. Rep. 519.

Any publication calculated to expose one to public hatred, contempt, or ridicule is libellous _per se_. Dressel _v._ Shipman, 57 Minn. 23, 58 N. W. 684.

The general rule is, that when language is published concerning a person or his affairs, which, from its nature, necessarily must, or presumably will as its natural and proximate consequence, occasion him pecuniary loss, its publication is libellous _per se_. See Townsend on Slander and Libel, (4th ed.) §§ 146 and 147; Fry _v._ McCord, 95 Tenn. 680, 33 S. W. 568.

Peculiar damages are required to be alleged only when the publication, with its attending facts and circumstances, is such that damages do not naturally arise from the publication. If the publication, with its attending facts and circumstances, is such that the court can legally presume that injury followed as a natural and inevitable consequence of the act complained of, then there is no occasion, in order to maintain an action, that the plaintiff allege or prove peculiar damages. If the nature and character of the publication, with its attending facts and circumstances, are such as to injuriously affect or detract from the reputation and standing of another, and as a natural and proximate result, tend to bring him into public contempt, hatred, or ridicule, then it is libellous _per se_. If such injury can be said to be a natural proximate result or consequence of its publication, then the plaintiff is presumed to have been damaged, and there is no need of any allegation of peculiar damages. The extent of the damages is for the jury.

It is the venom of poisoned speech that constitutes the libel. In tracing the wrong that flows from the publication, we come first to the mind of the reader, and inquire what effect it would naturally have upon the ordinary thinking mind. We first consider the facts published, and the circumstances under which they were published, and the persons to whom a knowledge of the publication was brought. An inquiry arises, would such a publication, under such circumstances, naturally tend to poison the mind against the person concerning whom the matter was published? If the matter published can be said, in its natural effect upon the mind, to produce hurt to the good name, fame, and reputation of the person about whom the publication is made, then we say the matter is defamatory, and the person necessarily has suffered not only wrong, but damages, as a proximate result of the wrong—damage to his good name, fame, and reputation in the community. If the words in and of themselves, when published, do not tend to this effect naturally and of their own force and vitality, the mind naturally inquires into the circumstances under which they were published, the manner of their publication, and the persons to whom a knowledge of the publication was brought. This inquiry is pursued to ascertain the effect which the publication, under the circumstances, would naturally have upon the mind of the person to whom a knowledge of the publication was brought. If the words and the circumstances attending their publication would not naturally affect the mind prejudicially against the person concerning whom the publication is made, it must be alleged and shown, not only that they were used in a defamatory sense, but that they were so understood by the hearers. When words, innocent in themselves, are charged to have been intended and used in a defamatory sense, it must be alleged and proven that they were intended in a defamatory sense and were so understood by the persons to whom they were addressed. If they do not themselves convey a defamatory meaning, or an imputation that is defamatory, something must be alleged which shows, or tends to show, that the user of the words intended them in a defamatory sense, and that the persons to whom a knowledge of the publication came were affected in their mental attitude towards the person, to the injury of his good name, fame, and reputation. The publication may be so worded that this could not be gathered from the publication itself. It may be innocent and even commendatory in itself, yet the facts and circumstances attending the publication, the relationship of the parties—the defamer and the defamed—to the public may be such, considered in the light of the subject-matter concerning which the publication is made, that it is apparent that there was not only an intent to defame, but that a defamatory imputation was so exposed, that the ordinary mind easily grasped the purpose of the publication and its injurious consequences to the good name, fame, and reputation of the defamed.

Men receive impressions of and concerning others from what they hear others say about them. Libel is a tort. It consists in a wrong done to the good name, fame, and reputation of another. It is in the nature of an assault upon the good name, fame, and reputation of another. The law protects a man in the possession of his good name, and denies to others the right, wrongfully and wickedly, to make an assault upon it. It is often the only asset a man has. Rob him of this, and you rob him of all that he has in life that makes life worth living.

A physical assault is clearly understood and easily defined. One may be punished criminally or mulcted in damages civilly for physical assault. Libel is an assault upon that invisible and intangible thing known as reputation. Though invisible and intangible, it exists among men and is prized, and the law protects it. As has been said by this court, libel rests upon the thought that a public wrong has been committed; an act has been done in violation of the statute, to the hurt of the complaining citizen. A citizen’s right to remain secure in his good name and reputation among his fellows, and to enjoy their confidence and esteem, has been violated. A libel is that which tends to take from him one of his most valuable rights—his right to the confidence, esteem, and respect of his fellow men. One who, by right living and right conduct, has built up for himself an enviable name among his fellows, and has drawn to him their confidence and esteem, is entitled to retain and enjoy the same, and one who wrongfully and maliciously, and without just cause, makes an assault thereon, and impairs or injures the same, does a grievous wrong for which he is answerable in damages.

It is true that the wrong must be found in the publication, not merely in the wording of the thing published. The injury must flow from the publication. The damage must be the natural and proximate result of the publication; a result that usually, naturally, and ordinarily follows as a result of the wrong done.

Though the article itself conveys no wrong impression concerning the complainant, and in and of itself could do no harm, it may become most injurious, most hurtful; it may become a direct assault upon the good name, fame, and reputation, because of the manner and the circumstances under which it was published. The publication must be libellous, not necessarily that the article in and of itself is libellous.

“A libel is the malicious defamation of a person made public by any writing,” &c. It is the malicious defamation against which the inhibition of the statute is raised; malicious defamation made public by writing. A writing made public which is intended to and does, because of its publication, tend to provoke to wrath, to expose to public hatred, contempt, or ridicule, or which deprives one of the benefits of public confidence and social intercourse, is libellous _per se_.

Every written publication, maliciously made, defamatory of another, which tends to any of the consequences set out in the statute, is a violation of the inhibitions of the statute. It is therefore a wrong done to a citizen in violation of the statute. It is therefore actionable _per se_. The fact that it is a violation of the inhibition of the statute makes it actionable _per se_.

In contemplation of law, reputation is a delicate plant, withered by the breath of scandal. Any publication which imputes to another conduct which right-thinking men condemn, whether the conduct involve a crime, moral turpitude, or any conduct in life, purpose, or manner of living which the common sense of right-thinking men condemns, is presumed in law to have injuriously affected the reputation of the person so assailed, and, by such injury, to have caused him some damage.

It follows, therefore, that libel is an assault upon character resulting in some injury to reputation. The injury must be traceable to the assault, and the damage must be the proximate result of the injury. Every one recognizes the blighting effect of scandalous utterances directed against the character, conduct, or reputation of men. Every one recognizes that such assaults, publicly made, tend injuriously to affect the reputation and standing of the one so assailed among his fellows. It is from the recognition of this that the law implies damages, without allegation or proof of special damages.

Defamation consists in maliciously poisoning the minds of others against the party assaulted by printing, writing, &c., thereby bringing on them some of the consequences provided against in the statute. The statute is intended to, and does, prohibit the malicious poisoning of the minds of others against a citizen, under the protection of the law, by the use of public printing, &c., and this inhibition attaches whether done directly by the wording of the thing complained of, or indirectly by insinuation, imputation, or suggestion. The statute is intended to protect one in a right, and to deny to others the liberty to invade that right.

With no explanation from the defendants, we may rightly assume that they prepared and mailed this card for the purpose hereinbefore indicated, and that the consequences charged in the petition were the consequences that naturally flowed from the thing done. We think the pleading was sufficient to present the question to the jury. As supporting what we have said, see Call _v._ Larabee, 60 Iowa, 212, 14 N. W. 237; Hollenbeck _v._ Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Halley _v._ Gregg, 74 Iowa, 564, 38 N. W. 416. In the latter case it is said, in substance, that if the act charged constitutes a libel, as defined by the statute, it is actionable _per se_. See Zier _v._ Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9, in which it is said:

“Words which may be innocent of themselves may be rendered libellous by the place and circumstances of their publication, for such place and circumstances may impress on them a meaning and suggestion which, standing alone, they do not have. Thus, though the words here do not of themselves impute wrong, they might be published in such a place or under such circumstances as to make them capable of naturally conveying the impression that plaintiff had been guilty of dishonest practices, either in contracting the debt or in withholding payment of it.... What meaning they would naturally convey was for the jury to determine in view of the circumstances of their publication.” State of Missouri _v._ Armstrong, 106 Mo. 395, 16 S. W. 604, reported in 13 L. R. A. 419, 27 Am. St. Rep. 361, together with citations and annotations; Nichols _v._ Daily, 30 Utah, 74, 83 Pac. 573, 3 L. R. A. N. S. 339, 116 Am. St. Rep. 296, 8 Ann. Cas. 841.

We find no case directly in point on the questions here considered. We think, however, the plaintiff presented a fair question for the jury, and the court erred in sustaining the demurrer, and the cause is therefore reversed.

_Reversed._

Evans, C. J., and Ladd, J., concur. Salinger, J., special concurrence.

SALINGER, J. There is language in the opinion which indicates there may be libel which is not libel _per se_. I do not wish to be bound by it. I think it is settled by our cases that whatever is libellous is libellous _per se_; that the action for libel rests on the fact that a “crime has been committed,” and that, therefore, the law presumes damage if a libel is established.[547]

WESTMINISTER LAUNDRY CO. _v._ HESSE ENVELOPE CO.
ST. LOUIS COURT OF APPEALS, MISSOURI, MAY 6, 1913.
_Reported in 174 Missouri Appeal Reports, 238._

NORTONI, J. This is a suit for damages, in which plaintiff recovered a verdict for one dollar. On this verdict, judgment was given, and defendant prosecutes an appeal therefrom.

All of the relevant facts appear from the face of the petition, and the question of liability is to be determined thereon. It appears that the plaintiff, the defendant and the D’Arcy Advertising Company are each corporations engaged in their respective callings in the city of St. Louis. Plaintiff owns and is engaged in the business of operating a steam laundry. Defendant is engaged in the business of manufacturing envelopes. The D’Arcy Advertising Company is engaged in the advertising business—that is to say, it places advertisement in St. Louis for those who choose to patronize it. The plaintiff laundry company engaged the D’Arcy Advertising Company to do certain advertising for it by running what is known as a “blind” advertisement. Such “blind” advertisement is described in the petition as follows:

“The fundamental idea of same (the ‘blind’ advertisement) being the use of some striking device well adapted to attract public attention, but unaccompanied, upon its first appearance, by the name of the advertiser using it, other matter being added later and the name of the advertiser, also, being given when the curiosity of the public has been sufficiently piqued and the attention of the public has been excited by the ‘blind’ nature of the advertisement.”

The striking device referred to in the quotation from the petition and that contemplated in the instant case is the word “Stopurkicken.” The petition avers that plaintiff entered into a contract with the D’Arcy Advertising Company whereby it was to have the exclusive use of the word “Stopurkicken;” that the D’Arcy Advertising Company, in pursuance of plaintiff’s plan, had the word “Stopurkicken” published upon signboards and by way of printed cards. After the word “Stopurkicken” had been so used and before plaintiff had time to determine upon a proper supplement to such advertisement to disclose its own name and identity, the defendant, Hesse Envelope Company, well knowing the word “Stopurkicken” was being used in the manner mentioned and desiring to take advantage of the word “Stopurkicken,” as above described, printed and distributed throughout the city of St. Louis a large number of cards bearing the word “Stopurkicken” and followed by the name of the Hesse Envelope Company. Because of this use of the word by defendant, Hesse Envelope Company, plaintiff avers it is damaged and prays a recovery therefor.

It is said the word “Stopurkicken” is an attractive misspelling and contraction of the phrase “Stop your kicking,” designed to excite public curiosity. It is obvious the petition states no cause of action against defendant unless the word “Stopurkicken” is either a trade-mark in which plaintiff enjoys a proprietary right, or is possessed of a secondary meaning, which, by user, has become a part of the good will of plaintiff’s business, otherwise the word is _publici juris_ and available to every person desiring to employ it identically as is the original phrase of which it is a contraction. From the affirmative averments of the petition, it is entirely clear plaintiff enjoyed no trade-mark in the word under consideration. Indeed, the cause does not proceed upon that theory. Plaintiff is engaged in the laundry business, which, of course, is that of washing and ironing for others. There is no suggestion in the petition that the word “Stopurkicken” was in any manner annexed to plaintiff’s wares or the output of its laundry. Infringement of a trade-mark consists in the unauthorized use or colorable imitation of it upon substituted goods of the same class as those for which the mark has been appropriated. (38 Cyc. 741.) The petition reveals that plaintiff has not yet employed the word in any manner so as to identify it with its business, for it says, though a contract had been entered into between plaintiff and the D’Arcy Advertising Company for the use of the word and it had been employed in blank space on signboards and on cards, plaintiff had not yet revealed its identity in connection therewith. Defendant is engaged in the manufacture and sale of envelopes and used the word on an advertising card followed immediately by the name Hesse Envelope Company. These facts appearing as they do in the petition, sufficiently disclose that no proprietary right as in trade-mark existed in the plaintiff in respect of the word “Stopurkicken.” Not only must an exclusive proprietary right appear in the trade-mark but the actual use of the trade-mark is essential as a means of identifying the origin, ownership or manufacture of the goods of its proprietor, and, furthermore, such trade-mark must be annexed to and accompany the goods into the market to the end of their identification. (See Grocers Journal Co. _v._ Midland Publishing Co., 127 Mo. App. 356, 366, 105 S. W. 310; 38 Cyc. 691, 693.) Unless the word or insignia relied upon is in some manner attached or affixed to the article in trade or stamped or inscribed thereon, it is not a trade-mark and the maker of such article is without trade-mark rights concerning it. (See Oakes _v._ St. Louis Candy Co., 146 Mo. 391, 48 S. W. 467; St. Louis Piano Mfg. Co. _v._ Merkel, 1 Mo. App. 305.) It is entirely clear that defendant in using the word “Stopurkicken” in connection with advertising its envelopes, was not infringing upon plaintiff’s laundry business, for the wares or commodities of the two companies are entirely dissimilar. But aside from this, it appears affirmatively that the plaintiff had never used the word in connection with the output of its laundry. It had, therefore, obtained no proprietary right thereto by continued use through affixing it to the workmanship of its laundry turned out into the market.

For the same reasons, in part at least, no secondary right to the use of the phrase appears in plaintiff by user such as is essential to render it a portion of the good will of its laundry business as if reputation obtained thereon. It is certain that the case may not be sustained as one for unfair competition. Unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another. (See Cyc. 756.) Nothing less than conduct tending to pass off one man’s goods or business as that of another will constitute unfair competition, for such is the very essence of the wrong on which the law affords redress to the injured party. (See Elgin National Watch Co. _v._ Illinois Watch Co., 179 U. S. 665, 674, 21 S. Ct. 270, 45 L. Ed. 365; 38 Cyc. 762, 763; 38 Cyc. 758; see, also, Grocers Journal Co. _v._ Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310.) The relief, in cases of unfair competition, proceeds upon the theory that the words or phrase employed as by long use in connection with the goods or business of a particular trade come to be understood by the public as designating the goods or business of that particular trader. Because of such user, the word or phrase becomes identified with the business of him who employs it and constitutes a part of its good will. Such meaning of the words or phrase, it is said, is the genesis of the law of unfair competition as distinguished from technical trade-mark, and, therefore, relief against unfair competition is afforded upon the ground that one who has built up a good will and reputation for his goods or business under a particular designation is entitled to the benefits therefrom. And secondary to this, the theory is that the deception of the public injures the proprietor of the business by diverting his customers and filching his trade. (Grocers Journal Co. _v._ Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310; 38 Cyc. 760, 761, 763, 769.)

It is to be observed that, though the right to complain as for unfair competition does not in every instance require that the complainant shall have a proprietary right in the phrase, it does require that he shall have used it in his business as a means of identifying his goods as his product and for a sufficient length of time to establish a repute therefor in the market as pointing his product. (Grocers Journal Co. _v._ Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310; Reach Co. _v._ Simmons Hardware Co., 155 Mo. App. 412, 135 S. W. 503; 38 Cyc. 769, 763.) Unless the word or phrase involved has become a parcel of the good will of his business by continued use in connection with the product of the proprietor, it is entirely clear that the use of the same word by another does not reveal an unfair competition. (Shelley _v._ Sperry, 121 Mo. App. 429, 99 S. W. 488.)

The petition shows on its face that plaintiff had never used the word “Stopurkicken” in connection with the output of its laundry, but on the contrary only employed it on billboards and cards otherwise blank, as an attraction to arouse the curiosity of the public with a view of revealing the name of the advertiser (plaintiff) thereafter. It is clear enough that, though defendant interposed and used the same word on cards bearing its name, as it did, no unfair competition appears when considered in the sense of the law on the subject and until plaintiff had obtained a right thereto by actual user in connection with the product of its laundry, the phrase “Stopurkicken” must be regarded as _publici juris_ and available to all who desired to employ it identically as was the original phrase “Stop your kicking.” It is certain the D’Arcy Advertising Company had no superior right to either the phrase or the contracted word and that it could confer none upon plaintiff by its contract to employ it as a means of arousing the curiosity of the public for plaintiff’s benefit. (Reach _v._ Simmons Hardware Co., 155 Mo. App. 412, 135 S. W. 503.) Though persons who have acquired a right in respect of words and phrases by user as above indicated, may assign or contract such right to another in conjunction with the good will of the commodity, the identity of which they point, it is obvious that an advertising agent may not appropriate any word or phrase he chooses by merely seizing it out of our vocabulary, and confer an exclusive right thereto on another by a contract to employ it in aid of his business. We are advised of no principle of our jurisprudence on which the judgment in this case may be sustained, and the counsel for plaintiff have omitted to file a brief suggesting one. The judgment should be reversed. It is so ordered. Reynolds, P. J., and Allen, J., concur.

THE MIDLAND INSURANCE CO. _v._ SMITH
IN THE QUEEN’S BENCH DIVISION, MARCH 23, 1881.
_Reported in Law Reports, 6 Queen’s Bench Division, 561._

WATKIN WILLIAMS, J.[548] This action is one of an extraordinary, and so far as I am aware of an unprecedented, character. The questions of law involved in the case, which was argued before me yesterday, arise upon demurrer to the statement of claim, and I now proceed to give judgment.

The facts, which for the purposes of the argument are assumed to be true, are as follows: The plaintiffs, an insurance company, granted to the defendant, Charles Smith, a policy of fire insurance, dated the 26th of June, 1880, by which they agreed with him that if certain property in a certain house should be destroyed or damaged by fire they would pay or make good all such loss or damage during the currency of the policy. The defendant Mary, the wife of the defendant Charles Smith, having been left by him in charge of the house and property insured did, with the malicious intention of destroying the insured property and of injuring the insurance company and of creating a claim upon the policy, wilfully set fire to and destroy the house and the insured property. Charles Smith, the assured, then made a claim upon the policy against the company. The company thereupon brought this present action against Smith and his wife, to recover damages for the loss which the company alleged they had sustained or might sustain through the wrongful and felonious act of the defendant Mary, if the defendant Charles made good his claim upon his policy.

I was informed in the course of the argument, although these facts do not appear formally before me, that the defendant Charles had, before this present action, brought an action against the company upon the policy to recover the amount of his loss, and that in that action the company disputed their liability on the ground that the loss, having been caused by the arson of the wife, was not covered by the policy, and that they had also set up a counterclaim for damages against Smith and his wife, who was brought in as a party to the action upon the same ground; that that action went down to trial, and that the learned judge, before whom the cause came on for trial, adjourned the proceedings in order to enable the company to test the validity in law of their contention in a separate and distinct manner before proceeding to try the question of arson. The present action was then commenced. The questions, however, for determination in this action must depend exclusively upon the facts set forth in the statement of claim, and the issues of law raised by the demurrer.

The company in support of their case started with the general principle that “every husband is liable for the wrongful acts of his wife,” and that as the defendant Mary had wrongfully injured and destroyed the insured property, and had caused the damage upon which a claim upon the policy had been based, they, as the insurers of the property, had a right to sue her and her husband for the damage and injury so done by her, and not the less so because the husband happened to be himself the assured whom they had agreed to indemnify. In substance, the contention of the company came to this, that they ought not to be called upon to pay the assured the amount claimed, without being entitled concurrently to claim damages from him for the loss caused by the act of his wife, for which he is answerable.

The defendants, by their demurrer to this claim, raised two main issues of law. In the first place they said that the company were not in a position to maintain any action for the alleged damage done to the goods, because they were not the owners of the goods, nor had they sufficient interest therein to entitle them to maintain an action; that their only right as insurers would be to avail themselves of such rights and remedies as were vested in their assured, after they had admitted his claim and been subrogated to his rights in relation to the subject of insurance; and that, even if they had been subrogated to the rights of the assured, they could only sue in his name and could not maintain an action in their own name, and therefore that no such action could be maintained in the present case, because the assured had no right of action against his own wife.

In the next place the defendants contended that this action being based upon an act, which on the face of the statement of claim amounted to a felony, could not be maintained, because it was not shown that the rights of the public law had been vindicated by a prosecution of the felon.[549]

Upon the first ground of demurrer the defendants are, in my judgment, clearly entitled to judgment both upon principle and upon authority. It appears to me that the insurance company have no right of action under the circumstances for the damage done to the goods by the defendant Mary. At the time when the damage was done to the goods the company had no property or interest in the goods sufficient to sustain any action for damage done to them; no right or interest in the goods could accrue to the insurance company, until they had acknowledged the claim under the policy, and by so doing entitled themselves to the benefit of any claims and causes of action vested in the assured; but it seems that even up to this moment the insurance company dispute the claim and deny the right of the assured to demand an indemnity under the policy. But, further, it seems to me equally clear that, if they had done everything to entitle themselves to the benefit of such a claim, it could only be enforced in the name of the assured and for the purpose of enforcing his rights, and inasmuch as he could have no such claim or right against his wife, it follows that in no possible view of the case is the plaintiffs’ claim sustainable. The case of Simpson _v._ Burrell, 3 App. Cas. 279, is in point upon this question. In that case Burrell was the owner of two ships, one of which negligently ran down and sank the other with a valuable cargo. Burrell’s underwriters upon the sunken ship paid him for a total loss, and were so subrogated to all his rights. A claim was made by the owners of the cargo in the sunken ship against Burrell, as the owner of the ship in fault, for the value of their goods, and Burrell, as the owner of the ship in fault, paid into court the whole value of that ship at £8 per ton, as the limit of his liability under the Merchant Shipping Acts, to be ratably divided among all who had sustained loss and damage by the ship being negligently run down and sunk; thereupon Burrell’s underwriters upon the sunken ship who had paid for a total loss claimed to come in and share with the rest the money paid in by the ship in fault; but the House of Lords, reversing the decision of the Lords of Session in Scotland, decided that they had no such right, and the reasoning in that case is directly applicable to the present. The Lord Chancellor Cairns said, “The view of the Lord President therefore appears to be that, after payment by the underwriters as on a total loss, there is effected by some independent operation of law a transfer of whatever, if anything, can be recovered in specie of the thing insured—and by reason of the transfer of the thing insured an independent right in the underwriters to maintain in their own name, and without reference to the person assured, an action for the damage to the thing insured which was the cause of the loss. I am not aware of any authority for the view of the case thus taken. I know of no foundation for the right of the underwriters, except the well-known principle of law that where one person has agreed to indemnify another he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss.”