said. In that case the court directed a verdict in favor of the defendant because the plaintiff had not complied with section 5415 of Kirby's Digest, relating to foreclosures under chattel mortgages. The section provides that before any mortgagee shall replevy under his mortgage on personal property such mortgagee shall make and deliver to the mortgagor a verified statement of his account showing each item, debits and credits, and the balance due. up a trade under such name entitling him to injunctive relief. 93(3) 3. TRADE-MARKS AND TRADE-NAMES -INJUNCTION SUIT-MEDICINE-SUFFICIENCY OF EVIDENCE. In such suit evidence held insufficient to show by a preponderance that plaintiff physician In such suit evidence held not to show by Where the ingredients of which a medicine was composed for a physician under his prescription by pharmacists were of common everyday use the physician did not have the exclusive right to prohibit others as the pharmacists, from using the same combination. It appears from the record that the chattel mortgage was given for better security of the indebtedness secured by the mortgage on real estate. In the foreclosure proceedings on the real estate mortgage, it was adjudged that the mortgage indebtedness was $3,100, and judgment was rendered in favor of the mortgagee against the mortgagor for that amount. The land sold for $2,150 at the foreclosure sale. This left a deficiency which the mortgagee had a right to have paid or satisfied Suit by Asa Brunson against Reinberger & by a foreclosure of the chattel mortgage. No useful purpose could have been served by the Collier in which defendant files cross-comrendition of an account, for as we have just plaint. From a decree dismissing the comseen the amount of the mortgage indebted-plaint and cross-complaint, plaintiff appeals. ness has been adjudicated in the foreclosure proceedings on the real estate mortgage. The facts bring the case squarely within the rule announced in Perry County Bank v. Rankin, 73 Ark. 589, 84 S. W. 725, 86 S. W. 279, and no verified statement of account under the statute was required. It appears from the record that the chattel mortgage was given as additional security for the mortgage indebtedness. The mortgagee had a right to first foreclose his mortgage on the land, and, when it did not sell for enough to satisfy the mortgage indebtedness, to foreclose his mortgage on the chattels. It follows that the judgment in each case must be reversed, and the cause will be remanded for a new trial. Appeal from Jefferson Chancery Court; Jno. M. Elliott, Chancellor. Affirmed. Appellant instituted this suit against the appellees. He alleged that he was a practicing physician, and had originated a prescription known as "Dr. Brunson's Famous Prescription"; that he had the appellees, who were druggists, to prepare the medicine according to the prescription, and sold the same under an agreement that they should divide equally the profits arising therefrom; that they had manufactured and sold several thousand bottles of medicine, and denied that they had any contract with appellant, and refused to account to him for any profits derived from such sales, but were nevertheless continuing to advertise and sell the medicine prepared according to his prescription. He asked for a permanent injunction prohibiting the appellees from preparing and selling the medicine under any name. The (134 Ark. 211) BRUNSON v. REINBERGER & COLLIER. appellees answered, admitting that they were (No. 325.) selling a medicine prepared under a pre(Supreme Court of Arkansas. April 29, 1918.) scription known as Dr. Brunson's Famous 1. APPEAL AND ERROR 1009(3)-REVIEW-Prescription; but they denied that appelCONFLICTING EVIDENCE-FINDING OF CHAN- lant originated the prescription, and denied CERY COURT. Where the testimony for plaintiff and for that there was any contract between them defendants is in sharp conflict and the state of for a division 'of the profits from its sale. the record is such as to leave the Supreme They alleged that the name was suggested to Court in doubt as to which of the parties has them by appellant because there once lived the preponderance of the evidence, the finding of in Pine Bluff a famous doctor by the name of the chancery court on the issues of fact will be made the finding of the Supreme Court and a Brunson, who died many years before, and decree based on such finding affirmed unless they adopted the name because he had had a there is an erroneous application of the law. large clientele. They alleged that they had 2. TRADE-MARKS AND TRADE-NAMES 93(3) put the medicine upon the market with a special label upon the bottle which constituted their trade-mark; that appellant had been imitating their trade-mark and selling medicine under a similar trade-mark. They made their answer a cross-complaint, and asked that appellant be enjoined from using -MEDICINE-RIGHT TO INJUNCTIVE RELIEF In a physician's suit to enjoin pharmacists from preparing and selling a medicine under his name or any other, evidence held insufficient to prove by a preponderance that plaintiff had adopted a trade-mark or trade-name for the medicine, and that he had established and built For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes their label. Appellant answered, denying | They could have called it by any name they the allegations of the cross-complaint. wished, but as old Dr. Rand Brunson had previously had medicines on the market, and had a good reputation as a physician, they had him in mind, and not the appellant, when Prescription as the name for their remedy. The appellant had nothing to do with its preparation; did not know what was in it; did not know that appellees intended putting such a preparation on the market, unless he got the idea from seeing them working on the prescription in the store. They instructed their agents in recommending and selling the remedy to "use the words old Dr. Brunson." After they had been advertising and selling it for some time the appellant came A witness on behalf of the appellant testified in substance that he was working for the appellees when they began manufacturing the medicine known as "Dr. Brunson's they decided upon Dr. Brunson's Famous Famous Prescription"; he had seen appellees and their clerk often sell bottles of such prescription, and heard them recommend the same as Dr. Brunson's, whose office at the time was over their drug store; such recommendation was one of their main selling arguments.. Witness while working for the appellee also followed their lead and sold the medicine as Dr. Asa Brunson's prescription. Another witness testified that he had bought the Dr. Asa Brunson's Famous Prescription from the clerk of appellees upon the recom- into appellee's' store and discussed with mendation, as witness understood, that it was Dr. Asa Brunson's. Another witness testified that appellees requested witness to take a dose of their Dr. Brunson's Famous Prescription, telling witness that it was Dr. Asa Brunson's who was witness' family physician; that they did not mention the name of the old Dr. Rand Brunson. Two pharmacists testified that the ingredients of the prescription were the same that they had often filled for Dr. Asa Brunson. The appellant testified that he had been a practicing physician for 17 years, and during the year 1916 had an office over appellees drug store. Appellees were working on a prescription to sell as à diuretic. He asked them why they did not use his prescription, which he considered far better. They agreed that they would use his prescription, and he gave them his written prescription, and they agreed to call it "Dr. Brunson's Famous Prescription." He suggested that they would go in together and organize a company and share in the profits, and they agreed. They sold the medicine from that time on. Appellees had some cards printed, which they gave to the people as follows: "This card certifies that the bearer has purchased one bottle of Dr. Brunson's Famous Prescription, and is entitled to one free consultation with Dr. Brunson." The corporation was never formed, though they often talked about it. The appellees had sold the medicine under witness' prescription from October, 1916, until about the 1st of January, 1917, when witness asked them for a division of the profits. They refused. Witness had used the prescription ever since he had been a practicing physician. He originated it, and he never knew any other physician to have one like it. The testimony of the appellees tended to prove that they originated the prescription known as Dr. Brunson's Famous Prescription; they talked it over among themselves, discussing with their clerks and pharmacists the ingredients that should compose it. They wished to put upon the market a remedy for stomach, them about forming a stock company. They had several meetings and discussions with invited to become interested in the organizaappellant and others whom appellant had tion. They claimed that the prescription which appellees were using was the appellant's, and that appellees should give appellant controlling interest in the company. Prior to that time he had never made any claim to owning an interest. Appellees explain the card they used, referred to in appellant's testimony, by saying that in a joking way they were discussing with appellant a method of advertising their medicine, and he suggested that the card would be a good way for advertising, and would also be a good way to enable him to get hold of some extra money. He stated that if he got the advertising and got the people in his office. that he would get the money. The testimony of the appellees as to the origin of the prescription was corroborated by their clerk and prescriptionist who were working for them at the time the medicine was originated and while they were manufacturing and selling the same. Witness One witness testified that he had been a druggist in Pine Bluff about 20 or 23 years before; at that time had a book in which he kept physician's prescriptions. He put up prescriptions for sale in the name of Dr. Brunson; after his death, witness got permission from his widow to use his name. Among the prescriptions was Brunson's Stomach Prescription. had a copy of it in his book in witness' handwriting. Witness gave appellees permission to use this prescription. The prescription contained some of the same ingredients that Dr. Asa Brunson used. Witness received a letter from appellees stating that they were having trouble with appellant about using the name, and witness wrote appellees, giving them all privileges that witness had. There was testimony on behalf of the appellees tending to show that a druggist in Pine Bluff was manufacturing for the appel Prescription" in accordance with the formula | cine was made that was being manufactured by the appellant. The druggist testified that and sold by appellees. he made a contract with Dr. Brunson to manufacture the medicine according to the formula and to sell the same under the name Dr. Brunson's Famous Prescription with the understanding that they were to divide the profits. Witness knew when he entered into the contract with appellant that appellees were making a medicine called Dr. Brunson's Famous Prescription, and witness knew that the formula which appellant gave him was the same appellees were using. There was some other testimony tending to prove their respective contentions, but it would serve no useful purpose to further set it forth. The court found that neither the appellant nor the appellees were entitled to the relief prayed by them, and entered a decree dismissing appellant's complaint and appellees cross-complaint for want of equity. Danaher & Danaher and J. M. Shaw, all of Pine Bluff, for appellant. Irving Reinberger and Taylor, Jones & Taylor, all of Pine Bluff, for appellee. [4, 5] A preponderance of the evidence does not show that the appellees in selling Dr. Brunson's Famous Prescription were violating any trade secrets reposed in them by the appellant. We are unable to say from the testimony that appellees did not originate the formula or prescription by which the medicine they were selling was manufactured. O. & W. Thum Co. v. Tloczynski, 114 Mich. 149, 72 N. W. 140, 38 L. R. A. 200, 68 Am. St. Rep. 469. But even if the testimony had shown originated by the appellant, still under the that Dr. Brunson's Famous Prescription was originated by the appellant, still under the facts of this record it could not be said that he had a proprietary interest in the same which would entitle him to the relief sought. The ingredients of which the medicine was composed were of such common, everyday the exclusive right to prohibit others from use that appellant could not be held to have using the same combination as used by him. Chadwick v. Covell, 151 Mass. 190, 23 N. E. 1068, 6 L. R. A. 839, 21 Am. St. Rep. 442. The decree is therefore correct in all things, and is affirmed. (No. 326.) (136 Ark. 624) (Supreme Court of Arkansas. April 29, 1918.) 1. MASTER AND SERVANT 286(27) INJURIES TO SERVANT - QUESTIONS FOR JURY — NEGLIGENCE. WOOD, J. (after stating the facts as above). It will be observed from the statements that CHICAGO, R. I. & P. RY. CO. et al. v. ISOM. the parties adduced testimony to sustain their respective contentions, and there is a sharp conflict between the testimony of the witnesses for the appellant and the witnesses for the appellees. This puts upon this court the necessity, as counsel for the appellant correctly remarked, "the duty to determine which crowd is telling the truth." The state of the record is such as to leave us in doubt as to which of the parties has the preponderance of the evidence. [1] The rule in such cases is to make the finding of the chancery court on the issues of fact our finding, and to affirm its decree based upon such finding, unless there is an erroneous application of the law. Leach v. Smith, 197 S. W. 1160; Melton v. Melton, 126 Ark. 541, 191 S. W. 20; Long v. Hoffman, 103 Ark. 576, 148 S. W. 245. [2] We do not find that there was an erroneous application of legal principles to the facts of this record. The appellant does not prove by preponderance of the evidence, as the trial court correctly found, that he had adopted a trade-mark or trade-name for Dr. Brunson's Famous Prescription, and that he had established and built up a trade under such name which would entitle him to injunctive relief against appellees, who were manufacturing and selling the medicine under the same name. In an action for injuries to employé resulting from act of another employé in cinder car throwing a large clinker on head of plaintiff thrown from the car, the issue of negligence employé as he was stooping to level the cinders held, under the evidence, for the jury. 2. MASTER AND SERVANT 289(17) RIES TO SERVANT QUESTIONS FOR JURYCONTRIBUTORY NEGLIGENCE. INJU Whether employé leveling cinders as thrown from a cinder car assumed risk of injury from The verdict of the jury on conflicting evi- 6. EVIDENCE 537- OPINION - HEARINGPHYSICIANS. [3] The chancellor was correct in finding Physician who examined injured servant and that appellant had failed to show by pre- tested his hearing, and who said he had treated ponderance of the evidence that he had orig- helped them that they did not go to specialists, orig-persons for defective hearing and had often so inated the prescription under which the medi- was competent, as a duly qualified expert, to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes say whether the servant's hearing was impaired above the top of the car. Witness saw appelafter the accident. lee go to the ground when the clinker struck him, and then looked up and saw the men in 7. DAMAGES 132(14)-EXCESSIVE DAMAGES. Verdict of $750 was not excessive to injured servant, who lost hearing of one ear, and had a terribly annoying whistling and ringing in that ear. Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge. Action by Joseph Isom against the Chicago, Rock Island & Pacific Railway Company and others. Judgment on verdict for plaintiff, and defendants appeal. Affirmed. This action was brought by the appellee against the appellants to recover damages for personal injuries. The appellee testified, among other things, that he was in the employ of the defendants, as a section hand, and was engaged in shoveling and placing cinders on the ground while other employés of appellants were unloading cinders from an open coal car; that some of the cinders had run together and "made what was called clinkers"; that while appellee was stooping down to get a shovel of cinders was stooping down to get a shovel of cinders in the performance of his duty, another employé, without any warning to appellee, or without exercising any care as to where he was throwing cinders, negligently pitched a large clinker upon plaintiff's head, inflicting upon him serious injuries. The appellants set up the defenses of tributory negligence and assumed risks. the car. Silvia Isom, daughter of the appellee, testified that there was a gash 11⁄2 inches long and 1 inch deep on the top of her father's head. She further testified, over the objection of appellant that her father did not.complain of his hearing before being hurt. That she did not notice before then that he could not hear; since the injury she had to speak to him the second time to make him hear. Dr. Williams stated that he had been a practicing physician 35 years, and in his prachearing; he had not had occasion to study tice had tried a good many cases for loss of the hearing as an expert; however a number of such cases had come under his observation; he treated them, and sometimes he benefited them without them having to go to tion and practice would qualify him to make a specialist. He thought that his observaa test of a man's hearing. In making the test he had to rely principally upon the pahear very well when the witness held a watch tient's statements. The appellee could not to the right ear; the other ear was all right. Witness was standing behind him, and would raise and lower his voice to find out how well con-witness had to test his hearing. Based upon appellee could hear. That was the only way his observation and experience, a blow such affect his hearing. If his hearing was good as appellee received would be calculated to previous to the blow and since that time had The testimony on behalf of the appellee tends to show that he was shoveling cinders and spreading them on the ground as they were thrown from an open car of appellants. The foreman told appellee to stay back of the car, and ordered the men not to throw coal over in such manner as to hurt anybody. While appellee was stooped over, like a man is when shoveling, one of the men in the car threw a clinker upon his head. The clinker would weigh from 15 to 30 pounds. It knocked appellee senseless, cut a gash in his head, and caused the blood to run all over him. It caused him severe pain when first received, and had not stopped at the time of the trial. The blow gave the appellee bad hearing in one ear; his hearing was always good before that, and bad since. He had a whistling and ringing in his right ear after the blow that he did not have before. Appellee was working 8 or 10 feet away from the car where the men were throwing out the cinders. There was nothing to prevent the men, who were throwing out the cinders, from seeing appellee if they had looked. Appellee could see their heads over the top of the car. The car was an ordinary flat car. The foreman had directed the men to drop the clinkers down. planation witness would be forced to believe been bad, in the absence of any other exthat the blow had produced it. If there was just a scalp wound, it would not have affected his hearing, but if the blow was sufficient to effect concussion of the brain, the pressure would affect the hearing. The jury returned a verdict in favor of the appellee in the sum of $750, and from a judgment for him in that sum is this appeal. Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellants. J. C. Ross, of Malvern, for appellee. WOOD, J. (after stating the facts as above). [1-4] The issues of negligence, contributory negligence, and assumed risks under the evidence were ones of fact for the jury to determine. They were properly instructed, and their verdict is conclusive here. [5] The testimony of the witness Silvia Isom was competent. To ascertain whether one's sense of hearing is impaired by a failure to comprehend what is said in ordinary One witness testified that he saw appellee conversation, and especially as between those when he got hit in the head with the clinker. who are as intimately associated in their daily When the clinker hit him he sank to the walk and converse as a father and daughter, ground with a groan. The men in the car is not a matter for only expert knowledge. throwing the clinkers could have seen appel- [6] The testimony of Dr. Williams lee if they had looked, as their heads were likewise competent, and for the same reason, as well as for the additional reason that he | tations, instituted this action to restrain apthoroughly qualified himself as an expert. pellant, as commissioner of mines, manufac The hypothetical questions propounded to him assumed a state of facts to exist which the testimony in favor of the appellee tended to prove, and the appellee had a right to ask these questions from his viewpoint of the evidence. In Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, we said: "Parties desiring opinion evidence from experts may elicit such opinion upon the whole ** or any part of the evidence, and it is not necessary that the facts stated, as established by the evidence, should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts." See, also, Missouri & North Arkansas R. Co. v. Daniels, 98 Ark. 359, 136 S. W. 351. ture and agriculture and as ex officio ware- "that they are not public ginners, but that [1] Appellees alleged in their complaint each operated and expects to operate his gin The loss of hearing in one ear with the for the season of 1917 and 1918 as a private whistling and ringing in the ear, which he gin, ginning only cotton produced and owned by himself, his tenants and share croppers, described as "a terrible annoying sensation,' would certainly justify the amount of dam-or those who raise the crop for a portion of ages which the jury allowed as compensa-cise limitations upon the meaning of the word same, on the lands of the ginner." The pretion for the appellee's injury. The judgment is therefore correct, and is affirmed. (134 Ark. 106) "public" in a statute of this kind is difficult to define, and it is not necessary for us to do so in this case, but it seems clear that the operations conducted by appellees, as describ . PAGE, Commissioner, etc., v. ANDREWS et al. ed in their complaint, does not come within (No. 321.) the provisions of the statute. They allege (Supreme Court of Arkansas. April 29, 1918.) that they are not public ginners, but operate Appeal from Jefferson Chancery Court; Jno. M. Elliott, Chancellor. Action by Leo M. Andrews and others, against Jno. H. Page, as Commissioner of Mines, Manufacture, and Agriculture and as ex officio Warehouse Commissioner. Judgment for plaintiffs and defendant appeals. Affirmed. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for appellant. Bridges, Wooldridge & Wooldridge, of Pine Bluff, for appellees. McCULLOCH, C. J. Appellees, who were plaintiffs below, and are engaged in operating cotton gins in connection with their plan their gins solely for the purpose of ginning cotton produced and owned by themselves, their tenants and share croppers on their own lands. [2] For the purpose of testing the sufficiency of the complaint on demurrer, the allegations must be taken as true. According to those allegations, the cotton gins are operated by appellees merely in connection with their plantations and as a part of the same business. They operated the gins, in other words, for their own benefit and the benefit of a limited class of persons connected with them in the operation of the farms, and certainly this does not make them public gin ners. [3] Counsel for appellant make the point that a tenant on a farm holds the title to the product of the land rented, subject only to the lien of the landlord, and that there is no distinction between a tenant and any other member of the public. The proposition of law thus announced is sound so far as it concerns the distinction between the relations of a tenant and that of a share cropper or laborer to the landlord. But the fact that the tenant is the owner of the crop does not put him in a class with the general public so far as concerns the use of a gin provided especially for the ginning of the crops on the plantation of the owner. The tenants and share croppers on a plantation are inter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |