Marsh v. Billings

The opinion was delivered at March term, 1852. Fletcher, J. This is an action on the case, sounding in tort. The principle involved in the merits of the case is one of much importance, not only to persons situated as the plaintiffs are, but also to the public. But this principle is by no means novel in its character, or in its application to a case like the present. It is substantially the same principle, which has been repeatedly recognized and acted on by courts, in reference to the fraudulent use of trade marks, and regarded as one of much importance in a mercantile community. Vast numbers, no doubt, of the strangers who are continually ar riving at the stations of the various railroads in the city, have a knowledge of the reputation and character of the principal hotels, and would at once trust themselves and their luggage to coachmen supposed to have the patronage and confidence of these establishments. Not only much wrong might be done to individuals situated like the plaintiffs, but great fraud [331] and imposition might be practised upon strangers, if coachmen were permitted to hold themselves out, falsely, as being in the employment, or as having the patronage and countenance of the keepers of well known and respectable public houses. It was said, in behalf of the defendants, that the lessee of the Revere House had no exclusive right to convey passengers from the Worcester railroad to his house, nor had he the exclusive right to put upon his coaches or the badges of his servants the words “ Revere House,” and could confer no such exclusive right on the plaintiffs; that the defendants, in common with all other citizens, have a right to convey passengers from the Worcester railroad to any public house, and have a right to indicate their intention so to do, by marks on their coaches and on the badges of their servants. This may all be very true, but it does not reach the merits of the case. The plaintiffs do not claim the exclusive right of using the words Revere House;” but they do claim the exclusive right to use those words in a manner to indicate, and for the purpose of indicating,the fact that they have the patronage and countenance of the lessee of that house, for the purpose of transporting passengers to and from that house, to and from the railroads. The plaintiffs may well claim that they had the exclusive right to use the words “ Revere House,” to indicate the fact that they had the patronage of that establishment ; because the evidence shows that such was the fact, and that the plaintiffs, and they alone, had such patronage of that house, by a fair and express agreement with the lessee. For this privilege they paid an equivalent in the obligations into which they, entered. The defendants, no doubt, had a perfect right to carry passengers from the station to the Revere House. And they might perhaps use the words “ Revere House,” provided they did not use them under such circumstances and in such a manner as to effect a fraud upon others. The defendants have a perfect right to carry on as active and as energetic a competition as they please, in the conveyance of passengers to the Revere House or any other house. The employment is open to them as fully and freely as to the [332] plaintiffs. They may obtain the public patronage by the excellence of their carriages, the civility and attention of their drivers, or by their carefulness and fidelity, or any other lawful means. But they may not by falsehood and fraud violate the rights of others. The business is fully open to them, but they must not dress themselves in colors, and adopt and wear symbols, which belong to others. The ground of action against the defendants is not that they carried passengers to the Revere House, or that they had the words “ Revere House ” on the coaches, and on the caps of the drivers, merely; but that they falsely and fraudulently held themselves out as being in the employment, or as having the patronage and confidence of the lessee of the Revere House, in violation of the rights of the plaintiffs. The jury would have been well warranted by the evidence in finding that the defendants used the words “ Revere House,” not for the purpose of indicating merely that they carried passengers to that house, but for the purpose of indicating, and in a manner and under circumstances calculated and designed to indicate, that they had, and to hold themselves out as having, the patronage of that establishment.' Upon the evidence in the case, the jury should have been instructed, that if they were satisfied by the evidence that the plaintiffs had made the agreement with the lessee of the Revere House, as stated, they had, under and by virtue of that agreement, an exclusive right to use the words “ Revere House,” for the purpose oi indicating and holding themselves out as having the patronage of that establishment for the conveyance of passengers; and that if the defendants used those words, in the manner and under the circumstances stated in the evidence, for the purpose of falsely holding themselves out as having the patronage and confidence of that house, and in that way to induce passengers to go in the defendants’ coaches, rather than in those of the plaintiffs, that would be a fraud on the plaintiffs, and a violation of their rights, for which this action would lie, without proof of actual or specific damage; that if the jury found for the plaintiffs, they would be entitled to such dan¡ ages as the jury, upon the whole evidence, should be satis [333] fled they had sustained; that the damage would not be confined to the loss of such passengers as the plaintiffs could prove had actually been diverted from their coaches to those of the defendants ; but that the jury would be justified in making such inferences, as to the loss of passengers and injury sustained by the plaintiffs, as they might think were warranted by the whole evidence in the case. Though the instructions, as given, may have been intended to conform substantially to these views, yet, upon the whole, it seems to the court, that the principles of the law, upon which the rights of the parties were to be determined, were not stated with all that distinctness and accuracy, which the practical importance of the case requires. The principles of law which govern this decision are so fully settled by numerous decisions, that it seems unnecessary to go into any particular examination of authorities, but it is sufficient merely to refer to some leading cases. Coats v. Holbrook, 2 Sandf. Ch. 586; Blofield v. Payne, 4 B. & Ad. 410; Morison v. Salmon, 2 Man. & Gr. 385; Knott v. Morgan, 2 Keen, 213 ; Croft v. Day, 7 Beavan, 84; Rodgers v. Nowill, 5 Man. G. & S. 109; Bell v. Locke, 8 Paige, 75; Stone v Carlan, 13 Law Reporter, 360. New trial ordered.