[Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 14, 78; Dec. Dig. §§ 10, 67.*] 3. TRADE-MARKS AND TRADE-NAMES (§ 68*)— and the effect the effort to cross had on the, that confusion or injury will result therefrom; bystanders. In Walters v. Spokane Inter- but the protection a party is entitled to in his national Ry. Co., we held that there was a for there can be no unfair trade competition, untrade-name is only coextensive with his market, large discretion in the trial judge in receiv-less there is competition. ing and rejecting evidence of this nature. A due regard for the administration of justice, however, forbids that declarations forming a part of the occurrence out of which the cause of action springs shall be admitted as to one litigant and denied as to another. The exclamation was so clearly a part of the res gestæ, and so vitally affected the issue to which it referred, that its rejection was highly prejudicial. The respondent relies upon Dixon v. Northern Pacific Ry. Co., 37 Wash. 310, 79 Pac. 943, 68 L. R. A. 895, 107 Am. St. Rep. 810. In that case it was said that "there is no showing that the stranger who was not able to be found at the trial was in any way connected with the accident." In the case at bar the evidence shows that there were passengers upon the car who were not produced as witnesses. The exclamation "The boy is off!" shows that it was made under the pressure of excitement, and that it was the spontaneous, impulsive statement of one who believed that it expressed the truth. The respondent asserts that the question is not properly before us, for the reason that the statement was not responsive to the question propounded to the witness. The record, however, shows that the appellant's counsel stated to the court that the exclamation was a part of the res gestæ, and reserved his exception to the ruling. Neither the objection to the statement nor the ruling of the court was placed upon the technical ground that the answer was not responsive to the question, but upon the broad ground that it was not competent. The appellant was not required to pursue the matter. The judgment is reversed. RUDKIN, C. J., and CHADWICK and FULLERTON, JJ., concur. (59 Wash. 428) EASTERN OUTFITTING CO. v. MANHEIM et al. (Supreme Court of Washington. July 28, 1910.) 1. TRADE-MARKS AND TRADE-NAMES (§ 10*)— RIGHT TO USE NAME-CORPORATIONS. Where a corporation and a firm adopted the same trade-name and engaged in the same general business at points remote from each other, they must be dealt with precisely as if the names were those of private firms, and no advantage accrues to the corporation because its tradename was its name. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 14; Dec. Dig. § 10.*] and Trade-Names, Cent. Dig. § 78; Dec. Dig. § [Ed. Note.-For other cases, see Trade-Marks 68.* For other definitions, see Words and Phrases, vol. 8, pp. 7174, 7824.] 4. TRADE-MARKS AND TRADE-NAMES (§ 73*)— UNFAIR COMPETITION-USE OF NAME OF CORPORATION. A firm under the name of "Eastern Outfitting Company" did business in Spokane. A corporation engaging in similar business in Seattle, under the name "Eastern Outfitting Company," invaded the territory of the firm and attempted to open business in Spokane. Held, that the corporation, though using its own name as a trade-name, was not entitled to restrain the firm from using its name in Spokane. 73.*] [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 5. TRADE-MARKS AND TRADE-NAMES (§ 1*)— NATURE OF ""TRADE-MARK" NATURE OF "TRADE-NAME." A "trade-mark" has reference to the thing sold, while a "trade-name" embraces both the thing sold and the individuality of the seller. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 8, pp. 7042-7048.] 6. APPEAL AND ERROR (§ 872*)-SCOPE OF RE- A plaintiff suing to enjoin defendant from using a trade-name, who appeals from a decree against him, cannot require the court to review an order punishing a third person for violating the injunction issued in the case. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3513, 35172; Dec. Dig. § 872.*] Morris and Chadwick, JJ., dissenting. Department 1. Appeal from Superior Court, Spokane County; J. D. Hinkle, Judge. Action by the Eastern Outfitting Company against J. Manheim and another, copartners under the name of the Eastern Outfitting Company. From a judgment for defendants, plaintiff appeals. Affirmed. Samuel R. Stern, for appellant. Cohn, Rosenhaupt & Blake and A. M. Winston, for re 2. TRADE-MARKS AND TRADE-NAMES (§§ 10, TITION. One person may not use the name of an- GOSE, J. The plaintiff brought this acother already in the same line of business, so tion to enjoin the defendants from using the name "Eastern Outfitting Company." There was a decree in favor of the defendants, enjoining the plaintiff from using the naine in the city of Spokane. The plaintiff has appealed. Appellant is a foreign corporation, organized in the state of California under the name of "Eastern Outfitting Company of Seattle, Washington." In March, 1902, it filed for record in the office of the Secretary of State of this state a certified copy of its articles of incorporation, and otherwise complied with the laws of this state respecting foreign corporations doing business here. The essential facts are that the appellant, since 1902, has been engaged in the business of selling "cloaks and suits, also gents' clothing," in the city of Seattle, and its vicinity. Its mode of doing business, as testified by its manager, has been to sell on credit, receiving a cash payment of a few dollars at the time of the sale, and weekly or monthly payments thereafter until the purchase price is paid. It did no business in the eastern part of the state, aside from a single transaction with one customer who had moved from Seattle to Spokane. It has, in addition to its local trade, a mail order business in the territory adjacent to Seattle. The respondents were at one time copartners, doing a retail mercantile business in the city of Spokane under the name of "Eastern Outfitting Company." The business was started under this name by the respondent J. Manheim, in April or May, 1905. Later he associated Nathan Manheim with him in the business, and, before the commencement of the action, the latter acquired the entire ownership, and continued to conduct the business in the old name. There is no evidence that the respondents had any trade outside of the city of Spokane. About August, 1909, the appellant undertook to open a place of business in Spokane under the name of "Eastern Outfitting Company," and advertised that it had an exclusive right to the use of that name. The court found that the business of both the appellant and the respondents is a retail installment business, purely local in character; that the respondents have expended large sums of money in advertising the business, and have established a large cash and installment business under their trade-name; and that in August, 1909, the appellant, with the intention to cheat and defraud the respondents and the public, sought to lure the public into its place of business in the city of Spokane by taking the respondents' tradename, and thus divert and appropriate their business. The findings are supported by the evidence. The appellant contends that it has the exclusive right to the use of the name "Eastern Outfitting Company" throughout the state, because of its compliance with the laws of the state with respect to foreign corporations. We cannot concur in this view. The respected parties adopted the same trade name and engaged in the same general business, but at points remote from each other, and they are to be dealt with precisely as if the names were those of private firms or copartnerships. Celluloid Mfg. Co. v. Cellonite Mfg. Co. (C. 'C.) 32 Fed. 94. "No advantage accrues to a name of a corporation because it is borne by a corporation." Nims on Unfair Business Competition, page 198. The appellant next urges that, upon the principle of unfair business competition, the respondents should be enjoined from the further use of the trade-name. This position is untenable. In considering this question it is essential that the distinction be kept in mind between a trade-name as applied to a local business, and a trade-name as applied to a general business. In Martell v. St. Francis Hotel Co., 51 Wash. 375, 98 Pac. 1116, speaking to the identical question, we said: "The general rule is, as before quoted, that one person may not use the name of another already in the same line of business, so that confusion or injury results therefrom." This principle, stated in varying phraseology, may be found both in the text-books and in the adjudged cases. In cases like the one at bar the fact to be ascertained is, What is the market of the complaining party? His protection is coextensive with his market. Nims, § 114. "But there is no standard except what the court in each particular case believes has worked fraud, or may work fraud or a loss to plaintiff." Nims, § 108. There cannot be unfair trade competition unless there is competition. Sartor v. Schaden, 125 Iowa, 696, 101 N. W. 511. The doctrine of unfair competition is based upon the principle of common business integrity, and equity only affords relief when this principle has been violated. Hainque v. Cyclops Iron Works, 136 Cal. 351, 68 Pac. 1014; Sartor v. Schaden, supra. The mischief which a court of equity will guard against is a confusion in names, or in the identity of parties, or in the goods sold, so as to deceive the public and work a fraud upon the party having a right to the tradename. Philadelphia Trust, Safe Deposit & Ins. Co. v. Philadelphia Trust Company (C. C.) 123 Fed. 534; Celluloid Mfg. Co. v. Cellonite Mfg. Co., supra; Blackwell's Durham Tobacco Co. v. American Tobacco Co., 145 N. C. 367, 59 S. E. 123; Cohen v. Nagle, 190 Mass. 4, 76 N. E. 276, 2 L. R. A. (N. S.) 964. It is manifest that the respondents, doing a retail business in Spokane, could not pass off their goods as the appellant's goods, or pass themselves off as the appellant. The respondents did not invade the appellant's territory, but, on the other hand, it sought to invade their territory after they had devoted years of time and labor to giving a reputation to the name in the city of Spokane. Before the appellant attempted to open a business in Spokane, there had been no confusion and no deception practiced upon the public or the appellant's customers. We have treated the question as if the parties (the history of the whole business world; that had used the same trade-name, and have giv-a business legitimately organized is entitled en no consideration to the fact that the to the protection of the law in its developwords "Seattle, Washington," were a part of ment from a small local concern to the larger the corporate name of the appellant. concern into which it has the natural right to The contention of the appellant that the grow. Another reason, and to my mind a name is its trade-mark cannot be upheld. As forceful one, why the judgment of the lower a general rule a trade-mark has reference to court should be reversed is that the rule althe thing sold, whilst a trade-name embraces lowing an injunction to protect a trade-name both the thing sold and the individuality of cannot be invoked by defendants in this case. the seller. Armington v. Palmer, 21 R. 1. The business of defendants is a partnership, 109, 42 Atl. 308, 43 L. R. A. 95, 79 Am. St. and it is an established principle of law that Rep. 786; Sartor v. Schaden, supra. "The a partnership can have no property in a office of a trade-mark is to point out dis-trade-name which imports that it is a corpotinctively the origin, or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer. This may, in many cases, be done by a name, a mark, or a device well known, but not previously applied to the same article." Canal Company v. Clark, 13 Wall. 311, 20 L. Ed. 581. ration, and especially so where there is a corporation organized and doing business in the state under the same name and under the protection of the statute. Clark v. Ætna Iron Works, 44 Ill. App. 510, cited in 38 Am. & Eng. Enc. Law, page 356. In the same text, at page 368, the rule is laid down that: "A peculiar collocation of A third party was punished for contempt words which, although descriptive in their for violating the injunction order. The ap-meaning, are arbitrary in their selection and pellant seeks to review the contempt order on arrangement, and are not the only words this appeal. It cannot be so reviewed. which could be employed to describe the article to which they are applied, may be pro The appellant suggests that error was committed in rejecting and admitting certain evi-tected as a trade-mark. It is not always dence. Neither the evidence admitted nor that rejected was material in determining the issue. The decree is affirmed. clear, nor often very material, in this class of cases, whether protection is afforded upon the ground of technical trade-mark or upon the ground of unfair competition. It is so easy to avoid any similarity, that its mere ex RUDKIN, C. J., and FULLERTON, J., con- istence is almost conclusive proof of a fraud cur. ulent intent, and hence of unfair competition. At all events, a deceptive imitation will be enjoined." MORRIS, J. I dissent. When appellant fully complied with the laws of this state, it The same rule applies by analogy to tradebecame entitled to do business within this names. In 10 Cyc., at page 151, the general state and within the entire state. It had no rule is stated to be that: "While the name of locality except the state itself. The fact that a corporation is not in strictness a franchise, it.selected Seattle as its situs did not confine yet the exclusive right to its use may be proits business to that city, nor circumscribe to tected in equity by the writ of injunction by any extent its powers. It was a corporation analogy to the protection of trade-marks, just in Spokane, and as much entitled to do busi-as the name of an individual, a partnership, ness there and to have its name protected or a voluntary association may be protected." while engaged in such business as it was in This would be the rule if we had no statute Seattle. I do not comprehend upon what against the duplication of corporate names, theory appellant can be clothed with greater and should certainly be applied where the powers in Seattle and less in Spokane. I policy of the law has been declared by the know no law making such a distinction. Its Legislature to be that confusion in names of powers are coextensive with the state, and business concerns shall be avoided. should be so regarded and protected. Our statute, Rem, & Bal. § 3680, protects it in the exclusive use of its chosen name, and such protection should be extended to all portions of the state. The judgment should be reversed. (59 Wash. 446) ENGELKING v. CITY OF SPOKANE. (Supreme Court of Washington. Aug. 1, 1910.) 1. MASTER AND SERVANT (§ 217*) - ASSUMPTION OF RISK-EXTRAORDINARY CONDITIONS. CHADWICK, J. Aside from the consider-laborer will have knowledge of or be bound by, It is not to be expected that a common ations advanced by Judge MORRIS, in which natural laws, unless they are so obvious as to I concur, it seems to me that the reasoning of prompt the instinct of self-preservation in men the majority defeats itself. It proceeds upon of ordinary prudence and understanding; so it the theory that a business once established is the ordinary danger, and not an extraordinary must cover a whole field in its inception, science or mechanics not likely to be appreciatone arising from violation of some rule of rather than upon the evident fact proven by led by the man of ordinary prudence, which binds the servant to the law of assumption of risk; therefore common laborers directed to take some timbers, make a raft, float it down from a railroad bridge 200 feet above, under an end arch of a new bridge, and therefrom remove false work, did not assume the risk, from the effect of the currents, the proximity of falls below, and the weight of the raft and the rope with which it was being lowered, of the raft being submerged, taken to the middle of the stream, dragged loose, and taken through an opening in the middle of a temporary bridge below and over the falls; at least where it was found they did not appre ciate the danger. [Ed. Note.--For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. 217.*] 2. MASTER AND SERVANT (§ 164*)-DUTY OF SUPERINTENDENCE. the east. These forms were lying near the shore, with the bow of the arch to the center of the stream. In consequence, the flow of the current along the shore line was naturally deflected toward the center arch of the city bridge. A few feet below the concrete structure, a temporary bridge had been erected. A part of this had gone out a short time before, but it was in place below the south arch, so that anything floating under the south arch would lodge against it and be thus prevented from being carried over the falls. Engelking and four others were directed by the foreman in charge for the city to take Some timbers then at hand and make a raft, The weight of the raft, the heavy rope with to be floated down under the south arch and which it was being lowered, the currents of the upon which they could stand while removing stream, and the proximity of falls below, made the false work. No further direction or suit the duty of the master to furnish superintend-perintendence was given or had over the ence to common laborers directed to make a men, although one of their number "seemed to take the lead." Accordingly the men took eight sticks, 10 by 10, with cross-pieces leaving a space between each two of them, so that when the framework was completed the raft was about 14 feet wide and 20 feet long. Upon this they erected a superstructure to bring them within reach of the top of the arch. When the raft had been completed it is estimated that it weighed from 8,000 to 9,000 pounds. Between the moored arches and the south span of the bridge, there was an eddy in the stream. In this, and about 30 or 40 feet above the city bridge, the raft was moored; that point being also about 60 or 65 raft, lower it to an end arch of a new bridge, and therefrom remove false work. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 164.*] 3. TRIAL ($ 296*)-INSTRUCTIONS. Several instructions clearly setting forth the law of assumption of risk having been given, the jury could not have been misled by the braketed words in the instruction: "The law also provides that the servant is held to assume the ordinary risks usually incident to his employment so far as they may fairly be presumed to be within his knowledge in the exercise of ordinary care [provided the master has used ordinary diligence to eliminate them]." [Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-718; Dec. Dig. § 296.*] 4. MUNICIPAL CORPORATIONS (8 733*) LIA- feet south of the pier upon which the center FOR NEGLIGENCE-MINISTERIAL BILITY The construction and repair of highways by a city is a ministerial rather than a governmental function, so that the city is liable for negligence therein. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1547-1549; Dec. Dig. § 733.*] Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge. Action by Margaret C. Engelking against the City of Spokane. Judgment for plaintiff. Defendant appeals. Affirmed. E. O. Connor and Danson & Williams, for appellant. Robertson & Miller and Harry Rosenhaupt, for respondent. CHADWICK, J. At the time of his death H. W. Engelking was a common laborer in the employ of the city of Spokane. The city was engaged in erecting a concrete bridge over the Spokane river, a short distance above the falls. The bridge had been so far completed as to warrant the removal of the false work sustaining the arches, of which there were several. High water had taken out the false work from under the second arch, and the wooden forms had been moored by cables to the Great Northern railway bridge, a structure which paralleled the city bridge about 200 feet up the stream and to and south arches centered. The raft had been let down into the eddy and was secured by a long rope, two inches in diameter, attached to the Great Northern bridge, about 75 feet from the shore. The other ropes were attached to the raft. There is testimony go ing to show that one of these should have been used as a guy rope, to be held or tied on the shore while the raft was let down under the arch; while the other was to be used in securing the raft to the bridge. On the other hand, there is testimony showing that the large cable was alone depended on to let the raft down, while both of the smaller ropes were intended to secure the raft to the bridge when in proper position. The jury having found for plaintiff, we shall accept her theory as the true fact in the case. When all was done, one of the workmen crossed the river to get some tools. Another went up to the Great Northern bridge, to man the cable, the end of which was wrapped around a batter post on the Great Northern bridge. While the workman was going up the bank of the stream to man the cable, the rope which snubbed the raft to the shore was cut loose, so that when he first observed the rate after reaching his post, it was drifting up and out into the stream, carried up on the eddying waters, and out by the long sweep of the 250-foot cable, the most of which was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes submerged and a part of which had been | ful argument of counsel, the cases cited canstruck by the main current of the stream. not be made to apply here. The workmen The cable described a sweep or curve so that, were directed to meet, not an ordinary, but at some time the segment of the curve must an extraordinary, condition. 1 Labatt, Mashave been below or to the west of the upper ter & Servant, 240; Anderson v. Columbia end of the raft. Whether Engelking and one Imp. Co., 41 Wash. 83, 82 Pac. 1037, 2 L. R. of his companions pushed the raft out with A. (N. S.) 840. It is true that, as viewed by pike poles is a disputed fact, but not mate- learned counsel and by those versed in the rial as we view the case. As the raft caught laws of mechanics, the result might have the swift current, the force of the current been expected as a consequence of the viofell upon the cable, drifted the raft rapidly lation of natural laws. But it is not to be out to the center, and, as soon as the cable expected that a common laborer will have straightened out, pulled it under the surface. knowledge of, or be bound by, natural laws, Those on the raft having no means of con- unless they are so obvious as to prompt the trolling it, the workman on the bridge was instinct of self-preservation in men of ordisignalled to let out more rope, and when he nary prudence and understanding. The wondid so the raft rose to the surface, but when ders of this age of invention come from the the rope came taut the raft was again pulled application of natural laws. The touch of under the water, this time about 22 or 3 genius rather than the strength of reason feet, or to the waistline of the men thereon. has unlocked their mysteries, so that even This continued until the workmen could no learned men would not be charged with longer hold the rope, and the raft, being then knowledge of them. Men are not bound to opposite and almost under the center arch, observe or act upon natural laws, unless they was carried through it and over the falls. are within the range of common understandOne of the workmen escaped and was a wit-ing. That four men acting in harmony, havness at the trial. The other two lost their ing no understanding that the cross-currents lives. This action is prosecuted by the widow and torrential flow of the stream striking of Engelking, and from a judgment in her against a two-inch cable would overcome the favor the city has appealed. natural law which held the raft in its place Counsel for appellant has aptly summariz- | before it was pushed out into the stream, is ed the theories upon which a recovery was sought and must rest if sustained. He said: "(1) That these 10x10 timbers, forming the foundations of the raft, had, a month previous, been green timbers, and had, during the month preceding, been lying in the water.. (2) That the rope by which the raft was moored to the Great Northern bridge was too heavy. (3) That there was no foreman | fer, and the jury having found by special over these men and in charge of the construction of the raft." The first two grounds may be summarily disposed of. It may be conceded, for the testimony shows, that the raft and the rope would, under ordinary condi- The weight of the raft, the heavy rope, tions, or under the anticipated conditions- the current of the stream, and the proximity that is, if the raft had been floated under of the falls, made the superintendence of a and moored beneath the south arch-have qualified person an imperative necessity. In been a sufficient and proper appliance. The Anderson v. Globe Navigation Company, 107 scheme failed because the workmen did not Pac. 376, we held that the business of loadappreciate the danger arising from the sub-ing a schooner with lumber could not be carmerged cable, the rapid flow, and conflicting ried on without superintendence. While this currents of the stream which carried the raft beyond the south arch and opposite the center arch, and the further fact that the strength of the current was sufficient to pull the raft under the water when its weight came squarely upon the rope. It is argued that these things resulted because of natural laws known to all, and that, by an exercise of the faculties with which all men are endowed, the danger would have been foreseen and avoided. Beltz v. American Mill Co., 37 Wash. 399, 79 Pac. 981; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867, and Cavaness v. Morgan Lumber Co., 50 Wash. 232, 96 Pac. 1084, are cited to sustain the best evidence that they are not to be charged with the assumption of risk or contributory negligence as a matter of law; for, if they knew or appreciated the danger, the instinct of self-preservation, which is the first law of nature, would have restrained them. In any event, it is a question upon which the minds of reasonable men may dif verdict that Engelking and his companions did not appreciate the danger satisfies us that he was not guilty of assumption of risk or of contributory negligence. case is not in point upon the fact, it never- |