On appeal from the Supreme Court.
For the appellants, Herbert W. Backes and Harry J. Able.
For the respondent, Ryman Herr and Lloyd Fisher.
The opinion of the court was delivered by
DONGES, J. This appeal brings up a judgment entered in the Supreme Court in a case tried at Hunterdon Circuit before Judge Eldredge in which the plaintiff-respondent sued for damages for malicious prosecution. The grounds of appeal are two in number, namely, that the court erred in refusing to nonsuit and the court erred in refusing to direct a verdict for the defendants-appellants.
The suit arose out of a complaint made by the appellant Brooks as agent of the Sun Oil Company, against the respondent, Willard Hafner, charging that Hafner, as proprietor of O.K. Service Station, "did store, sell, expose and offer for sale a liquid fuel so as to deceive or intend to deceive the purchaser thereof as to the nature, quality and identity of the same by false representation, by the use of disguised camouflaged pump or pumps and by imitating the design and color of such pumps under which a recognized liquid is marketed namely the brand of the Sun Oil Company, known as blue Sunoco motor fuel, against the peace of the state and in violation of our statutes chapter 116 laws of 1928."
Chapter 116 declares it shall be unlawful to store, sell, expose or offer for sale, or sell in any manner whatsoever, or aid or assist in the same, any liquid fuels, lubricating oils, or other similar products, so as to deceive or tend to deceive the purchaser thereof as to the nature, quality and identity of the same, by false representation, or by substitution, mixing or adulteration thereof, or by the use of false or fictitious names, or by the use of disguised, camouflaged or falsely labeled containers, tanks, pumps, or other distributing equipment, or by imitating the design, symbol, or trade name under which recognized brands of such products are generally marketed.
The indictment charged that the defendant therein "did store, sell, expose and offer for sale a blue liquid fuel so as
to deceive or intend to deceive the purchaser thereof as to the nature, quality and identity of the same by the use of disguised, camouflaged and falsely appearing pump or pumps and by imitating the design and color of such pumps under which a recognized liquid fuel is marketed, namely: the brand of the Sun Oil Company, known as blue Sunoco fuel."
The complaint seems to limit the fraud and the offense to the use of disguised and camouflaged pump or pumps, and by imitating the design and color of such pumps. The statute does not say that the offense consists in imitating the design of pumps, but in imitating the design, symbol or trade name under which recognized brands are generally marketed, so that the complaint was not within the statute invoked. The indictment is much to the same effect. The complaint and indictment charge that the accused did "deceive or intend to deceive," whereas the language of the statute is "deceive or tend to deceive."
The plaintiff says that the complaint was not justified because there were no legends upon the pump which were calculated to mislead, and in fact, a few days after the installation of the pump, the name "Genoco" was put upon the glass disc at the top of the pump.
The language of the complaint and of the indictment is thus stated to distinguish the offense complained of from that sought to be introduced by way of defense by the testimony of Brooks, Eck, Connell and another witness, that the attendant at the respondent's service station, in response to an inquiry as to whether or not the ...