
    ALABAMA HOME HEALTH CARE, INC. v. HOME HEALTH CARE AGENCY OF NORTH ALABAMA, INC.
    SC 2586.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    
      S. P. Keith, Birmingham, for appellant.
    James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellee.
   FAULKNER, Justice.

Alabama Home Health Care, Inc., incorporated in 1970, has offices in Birmingham and Bessemer. Home Health Care Agency of North Alabama, Inc., incorporated in 1975, has offices in the same cities.

Testimony indicated that Alabama Home received many telephone calls and mail deliveries intended for Home Health Care Agency of North Alabama.

In June, 1976, Mr. Beard, who operated Alabama Home, had the telephone listing (white pages) of his corporation changed to “Home Health Care, Inc. of Alabama.” He admitted that although he did this in an attempt to clear up the confusion and uncertainty, there has probably been an increase in the uncertainty since the listing change was made. There was testimony that confusion existed both before the listing change, and after.

Alabama Home, the plaintiff, sued under Tit. 10, § 21(4)(1), Code of Alabama, 1973 Supp., seeking an injunction to require the defendant to discontinue use of its name, “Home Health Care Agency of North Alabama, Inc.”

Defendant counterclaimed, asking that the plaintiff be required to discontinue use of the name “Home Health Care, Inc. of Alabama” (as listed in the phone book after June, 1976).

After a hearing ore tenus, the trial court found that (1) the defendant’s name was not so similar to the plaintiff’s as to create confusion in the minds of the public; (2) “Home Health Care, Inc. of Alabama” (plaintiff’s phone listing name) is so similar to the defendant’s name as to create confusion and uncertainty; and (3) “Home Health Care, Inc. of Alabama” (plaintiff’s phone listing name) “. . . is a name assumed by the plaintiff and its use is not authorized by law.” The court denied plaintiff’s requested relief, granted defendant’s requested relief and taxed costs against plaintiff.

The judgment of the trial court is affirmed under the ore tenus rule. The evidence does not show that the court was palpably wrong and unjust. See Food Centers, Inc. v. Davis, 286 Ala. 629, 244 So.2d 576 (1971).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and' EMBRY, JJ., concur.  