Mother Cobb's Chicken Turnovers, Inc. v. Fox

SEAWELL, J.

Plaintiff corporation brought this action to enjoin alleged unfair competition of defendants and to secure damages, compensatory and exemplary, by reason of the alleged unfair practices of defendants. Plaintiff sells chicken turnovers or pies under the name of Mother Cobb’s Chicken Turnovers, Inc. Defendants, according to the complaint and findings, opened a place of business selling a turnover or pie under the name Mother Karl’s Chicken Pies, Inc. Defendants, Harvey Fox and Mrs. Harvey Fox, his wife, stipulated that an injunction might be entered against them as prayed for. It is stated that they had abandoned the use of the name Mother Karl’s Chicken Pies, Inc. The court found that plaintiff had suffered no actual damages but awarded it judgment against defendant Harvey Fox alone for $500 exemplary damages. From this judgment Fox appeals on the judgment roll. He contends that having denied compensatory damages, the court was without right to award exemplary damages.

According to the findings, which follow the allegations of the complaint, defendant Harvey Fox called at plaintiff’s plant on February 18, 1935, and upon his representation that he might be interested in purchasing an interest in plaintiff’s business, he was given all details of the business, including the ingredients used in plaintiff’s turnovers and the names of many of plaintiff’s customers. On March 3, 1935, upon

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plaintiff’s refusal to accede to defendant’s request to assign him a certain territory to sell plaintiff’s products, he threatened to open a place of business of his own. On March 7, 1935, “with the avowed purpose of unfairly competing with plaintiff and to take from plaintiff the customers who would normally transact business with plaintiff”, defendant Harvey Fox “opened a place of business, calling it ‘Mother Karl’s Chicken Pies, Inc.’, and selling a turnover which is of the same size, and shape and containing substantially the same type of ingredients as the turnovers of plaintiff, and which turnover to all external appearances is identical with plaintiff’s product and which turnover is packed in a glassine envelope of the same size and shape as plaintiff’s”. The defendants’ envelope is marked “Mother Karl’s”.

The court found that the use of the word “Mother” and “Mother Karl’s” is so similar to the use of the trade name of plaintiff, “as to be, and it is so misleading to the public”. The court further found, following the allegations of the complaint, that defendant Harvey Fox opened his place of business under the name Mother Karl’s with the avowed purpose of unfairly competing with plaintiff and to cause confusion in the minds of the purchasing public. But in finding VIII as to the purpose of defendant Harvey Fox to cause confusion in the minds of the public, a line is drawn through the words “and it does cause”, thereby deleting said words.