Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from a decree awarding appellees an injunction as prayed in their bill. The suit was brought by 23 nonresident producers and sellers of coal known as "Pocahontas" coal against 18 retail dealers in coal at Indianapolis, Ind., to restrain them from handling or selling coal to which a name is given containing the word "Pocahontas," unless the coal is produced in the Pocahontas coal field as described in the bill, and possesses the properties of "Pocahontas" coal as in the bill alleged.
The bill charges, and the court found, and the evidence abundantly sustains the finding, that Pocahontas coal is a semibituminous, low volatile, smokeless coal, produced exclusively in the Pocahontas coal field, specifically described in the bill, and shown by the evidence to be certain portions of named counties in Virginia and West Virginia, served by certain named railroads; that such coal possesses properties which make it particularly valuable for steam, domestic, and by-product uses, and that nowhere else is produced coal of like properties and value; that since 1883, when the production of such coal began, its use has constantly and rapidly increased, with constantly increasing market, reaching in 1929 nearly 30,000,000 tons -- all produced in said field, and all sold under the name of "Pocahontas" coal; and that in Indianapolis there has for many years been a large and valuable trade in this coal, aggregating many thousands of tons annually. It was further alleged and shown that defendants were advertising and offering for sale various coals of a grade inferior to Pocahontas, and not produced in the Pocahontas coal field, under such names as "Semi-Pocahontas," "Pocahontas Fractured," "Banner Pocahontas," and "Wonder Pocahontas," the last named being the name under which appellant was advertising and selling coal. It was alleged and shown that this practice of the defendants tended to induce the buying public to believe that the coal thus offered and sold under such names was in fact genuine Pocahontas coal, produced in the Pocahontas coal field, and that thereby the public was and would continue to be deceived, and the plaintiffs, and others engaged in producing and selling genuine Pocahontas coal, be greatly and irreparably damaged.
The decree ran against the employment of the word "Pocahontas" by any of the defendants in the sale of any coal which was not produced in the Pocahontas field and did not have the properties described. Appellant secured an order of severance, and alone prosecutes the appeal.
These allegations of the bill, and the court's findings sustaining them, were so indubitably sustained at the hearing that we do not feel called upon to discuss the evidence.
The contentions of appellant are set forth in a voluminous brief under eight heads and twenty-eight subheads, and it goes without saying that not all of these require discussion.
It is contended that the court had no jurisdiction over the subject-matter because the statutory amount does not appear to be involved. It was alleged that by defendants' conduct plaintiffs have been damaged more than $3,000. Beyond this it appears that each of the plaintiffs had built up a large trade in Indianapolis in genuine Pocahontas coal -- collectively, from 20,000 to 30,000 tons monthly for a number of years next prior to the filing of the bill. If it appears anywhere in the record that the jurisdictional amount is involved, it will satisfy the statutory requirement. United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007; Leitch v. City of Chicago, 41 F.2d 728 (C.C.A. 7); Lee Line Steamers v. Robinson, 232 F. 417 (C.C.A.).
It is urged that the statutory amount must appear to be involved as to each of the parties plaintiff, and against each of the defendants. What is here involved is the value of the right sought to be protected. In this case it is the trade-name -- a thing common to each of appellees and indivisible among them, and of as large value to one alone as to the group. Board of Trade v. Cella Commission Co. et al., 145 F. 28 (C.C.A. 8); Coca-Cola Co. v. Brown & Allen (D.C.) 274 F. 481. It is the good will -- the right to the exclusive use of the name -- which is endangered, and the bare statement of the facts conclusively indicates a value many times larger than the jurisdictional amount.
It is contended that in such an action there may not be a joinder of plaintiffs who are separate and independent of each other in their business relations. For answer we refer to the opinion of this court in Pillsbury-Washburn Flour Mills Co. et al. v. Eagle, 86 F. 608, 41 L.R.A. 162, where there was an action brought by various flour manufacturers of Minneapolis to restrain the defendant from falsely branding his flour, made in Wisconsin, with the name "Minneapolis." The reasoning of the court in sustaining the right of several parties similarly situated to join in the action is so cogent that without further discussion we adopt it by reference. The same logic applies as well to the contention that defendants who have severally wrongfully appropriated a trade-name may not be joined together in one action.
Under the pleadings and facts appearing, the various defendants are charged with conduct of the same general nature, as constituting unfair competition in trade, in transgressing the rights of the various plaintiffs in and to the same trade-name. We believe that in these circumstances, in the interest of justice and the avoidance of a multiplicity of actions, the single action may be brought by those similarly though severally interested in the same subject-matter against a multiplicity of transgressors who similarly offend.
The contention of nonjoinder of parties is based on the fact that others than the plaintiffs are producers of Pocahontas coal within the described coal field, and that the failure to join these others in the action is fatal. In this we cannot agree. The rights and interests of those who were made parties are in no manner prejudiced by the failure of these others to join in the action. The case of Pillsbury-Washburn Flour Mills Co. v. Eagle, supra, is applicable likewise to this contention.
The insistence that appellees are chargeable with laches in the bringing of the action is not well founded. While it is true that for about three years the name "Wonder Pocahontas" was used, there is nothing in the pleadings or evidence which lends support to this claim beyond this mere delay, and this ordinarily is not sufficient. Menendez v. Holt, 128 U.S. 514, 9 S. Ct. 143, 145, 32 L. Ed. 526; United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S. Ct. 48, 51, 63 L. Ed. 141, affirming (C.C.A.) 226 F. 545; Donner v. Walgreen Co. et al. (D.C.) 44 F.2d 637; Stearns-Rogers Mfg. Co. v. Brown, 114 F. 939 (C.C.A. 8). As stated in Menendez v. Holt: "The intentional use of another's trade-mark is a fraud; and when the excuse is that the owner permitted such use, that excuse is disposed of by affirmative action to put a ...