Brunson v. Reinberger

203 S.W. 269, 134 Ark. 211, 1918 Ark. LEXIS 528

• Court: Supreme Court of Arkansas
• Decided: April 29, 1918
• Status: Published

Opinion

WOOD, J.,

(after stating the facts). (1) It will be observed from the statements that 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, “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.

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, 130 Ark. 465; Melton v. Melton, 126 Ark. 541; Long v. Hoffman, 103 Ark. 576.

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.

(2-3) The chancellor was correct in finding that appellant had failed to show by preponderance of the evidence that he had originated the prescription under which the medicine was made that was being manufactured and sold by appellees.

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. But, even if the testimony had shown 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 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 every-day use that appellant could not be held to have the exclusive right to prohibit others from using the same combination as used by him. Chadwick v. Covell, 151 Mass. 190.

The decree is, therefore, correct in all things' and is affirmed.