*1 (cid:127). SAMMONS Tex.) GILMORE S.W.) (269 £ Action A. I. Gilmore M. L. upon the be affirmed should that the ion Judgment Sammons. grounds discussed. before plaintiff appeals. Reversed and remanded. indicated, reasons affirmed. the trial court Humphrey, Dallas, appellant. R. B. Affirmed. Cockrell, Hamilton, McBride, & O’Donnell Dallas, LOONEY, J. This is from an or- below, the court a 9491.)* v. SAMMONS. deny- demurrer Appeals Dallas. prayer Texas. Civil issuance an interloc- Rehearing Denied 1925. injunction. utory March Gilmore, Appellant, I. competitors in the business <@=s property Literary I—Author’s publication, to all lines of manuscript only until work, building copyright. engineering construction absence publishing profit throughout manuscript same for a Author’s only printing territory serving largely unless until vend- by copyright. ing is secured 'is, Appellant April and has been since owner, editor, publisher <@=4 op- Copyrights within items not —News paper Contractor, Texas copyright issued act. eration of city week, engi- of each Dallas items, relating to'building, and. op- charges per annum, neering work, $5 subscribers construction not within which he April eration of editor, owner, publisher of the news a bulletin <@=?8— Literary property Construction service called Advance great expense by competi- news, at collected Reports, Monday, illegal at Dallas on Wednes- tor, issued interference with day, Friday week, for, which of each business.. charges relating he annum. $30 Publication and of news items building engineering work, distributing construction great expense competitor, at collected builders, these documents is furnish with business. unfair and tractors, manufacturers, and dealers in build- ing material, all and to <@=53 Literary property held to —Publisher accurate, fresh, dependable interested, interest items. in news building to all lines of Publisher held relating building engineer- engineering construction work. All items of work, great construction collected ex- at news in to these matters pense journals. and effort for his weekly Advance lished in Construction Reports reproduced weekly Literary property by com- —Publication great Contractor. of the Texas petitor pense, may collected ex- at gathers compiles enjoined. Appellant this in- great expense relating to that formation keeps employed Where news reporters, specially work collected trained effort, held en- to secur- time and efforts are directed whose ing enjoin publication titled to and use thereof reports complete most the earliest competitor. architects, engineers, owners, corre- larger towns, spondents in cities and On Motion for reading general newspapers. <@=o82>-Presumption 6. Evidence is that Court fresh, complete, and tion thus obtained is Appeals would have followed deci- dependable. sion of United States Court. owner, editor, propri- is the Presumption is that Court Civil etor of a and En- would have followed later decision of United gineering Digest, serv- also a bulletin news Supreme Court, had it been extant when ice known Record similar as Industrial issue was Advance determined. Sheet, at'Dallas, Tex. both issued The first <@=5247(5) Appeal 7. Courts from interlocu- bimonthly, named 1st and tory order not certified to days month, charg- for which is interlocutory order, Where subscription price per annum, of $3 important and it is that case be tried on its latter issued twice each possible, appellate merits as soon as court will Wednesday Saturday, certify refuse to .Court. $16 annum. Dallas Coun- The business ty ; Work, Judge. same; they maintain, T. A. main- other cases see same and KEY-NUMBER in all and Indexes ©=»For April 29, error refused *Writ of *2 REPORTER 269 SOUTHWESTERN .862 >,appellant. property right injunction forbidding 'appellee demurrer to ing £ach, appropriated 'that to work, lant’s of which property. fair umns of the him, ber tained by appellant, of the news items in lant, months after acquired, and retains on each gations that mentioned, struction for but for the conduct of news items guise the said items and ant republished and urday the said items in the publishing in Industrial Record Advance Sheet tinuously the 26th thereof.” the columns of without the repeated protest Wednesday, tions, Appellant’s Appellant prayed “The On It further large his him to the classes of him has a the manner the value of identically interlocutory injunction. takes, rearranged form, suit, competition and sold appellant’s publications and at paragraph hearing, has republishing (defendant’s) and has from that date publications during issuance of and in persons manner and for the measure that: day Saturday news items and to republieation the taken complaint invasion and republished and that a presented permission the same the same a lower papers Engineering Digest; publication; appears same systematically contention is that he the form. the court sustained a Texas Contractor April, 1923, has the part from the thereafter 6 of the appellee, expense; the period hereinbefore named and used temporary taken, same owned and the news items obtained by copyright. price objection same competition next in Texas appellant’s bodily, expensive from buy news items and sale the same made, taking value of $1.50 when persons this value for six of news service purpose, the succeeding than thafe columns began republish attempting conceal much again republishing since October his news service by time involved taken said items right appellant’s to this time con- acts and inor next said constitute Contractor they appellee, the same in published .the said con- from hereinbefore and valuable to take part unjust, larger they plaintiff, on appellant’s permanent serving the source items $561, gathered papers rewritten following the are sold or about alleged; charged the col- oyer the refused er general question publica- defend- has stated, things retain appel- num- $1.50 same from alle- Sat- lant in business. and lications. and dis- be- in their value as 6, a were offered for desire the news does were sold appellee, and news sion are not within the right any once same made fair, trine were in lant, by publishing municate the and, no script tion with the at an in remains pellee he is right, property; lication they an “The common law [3-5] The contention of [1] This question arise, to himself the news items the hands of the owner the illegal taking ease within use that others universally recognized purpose, after published, production except him an that an No entitled to the course demurrers, complaint publication, rule law public the unpublished. secured to presented pirating unjust come subscribe by copyright affirmed, any that publication, the author or owner items such him position bulletins of 13 C. J. unless the public domain; value; of conduct of intelligence author’s judgment exclusive news for within this him republished tersely an abandonment or dedication in business selling view,'however, sale invasion of his .only news appellant, control because, unquestionably, the protects his rights that to all competition any appellee made, nor, the reason that or presented statutes.” stated rule contended for so from the six months after author or make control; property, otherwise, the conduct one had the long purchase over the rule, decision wheth common-law doc same subscribers, was, anybody to the control of literary property became his fact, taken appellee, such is Therefore, that the ease as be conferred so but that the court below columns and is vending it is at once here under rights, that could such previously so but, is proprietor his for which same and this form based on admitted Oyc. regarded printing lost long discus is not manu appel- appel- about copy prof legal as it pub they, pub- lost has un- the as . v . SAMMONS Tes.) Í.W.) injunction granted property- sociation. The court stituted a violation by post- in answer to contention and was such publish- granting equity boards bulletin papers the same in mem- controlled lief. April, became bers The demurrer admits *3 complainant lic no and that from the columns has taken a, right same, had the to said: appellant’s paper possessing control the of obtained value that were reasoning applying “The fault in in lies expenditure complainant right of labor lant at the as a test of considering public, money, appro- instead of and that competi- complainant defendant, of priated sold were business, tors -in right to The as between themselves. there- in with business purchaser single newspaper of a profits diminishing which spread gratuitous- knowledge its contents This, garnered. in our otherwise any legitimate ly, interfering merchandise of unreasonably not opinion, an unfair constituted complainant’s right with to make admitted; terference with but to use, effect; news for commercial com- transmit de- to could have one complainant- with is what de- fairly —which prive appellant portion of his aof fendant has done and seeks to a—is profits to the and to divert the same earned very by doing different matter. In this coffers very act, admits that it is material own a Does acquired by complainant that has been as the gathered his efforts the news items organization expenditure result of and the labor, great expense? skill, so. case think money, and which is salable money, Dodge that defendant in Information Co. v. Construction Co. n it and it its own Rep. Am. 97 E. St. Mass. N. endeavoring reap sown, to where it has not 810, presents reported 412) L. R. in 60 by disposing newspapers of it to very the one at bar. similar fact petitors complainant’s appro- members consideration, case, point under priating to itself the harvest of those who the court said: Stripped disguises, pro- have sown. to cess amounts an unauthorized this “That is a there complainant’s with the normal [meaning such as those legitimate precisely point business at the England where consideration] decided profit reaped, quotations order to divert a of stock information to portion profit material of the from those who to kinds of obtained and other different not; who pay to those with earned it. to those who be furnished special advantage defendant,in [Citing authorities.] We are numerous tion because of the fact that it possession burdened opinion of information that one’s any part compiled, obtained, put which he has form to be speaks itself, news. The 'transaction ought specific for a equity ought not to hesitate protected against would share characterizing in busi- consent.” it with without ness.” opinion The consensus of According conception' up summed stated in 13 J. C. the court below erred the de- murrer and in refus- property in “There is a common-law facts injunctive The cause by skill, and information collected and utilized remanded, although therefore reversed expense, labor, for fur- proceedings. one who ther available chooses to collect it.” Reversed and remanded. items, in the estimation On Motion appellee, possess value is re- persistent repub- vealed lishing conduct After a careful reconsideration of the appellee’s rehearing, them for sale case we further, by vigorous pellant, and, change find reason to defense no our decision. practice. continue such our decision insists that conflicts cause, opinion, in our This be ruled the Texarkana Oouft of Civil Supreme Appeals doctrine announced rendered in Vernon Abstract Co., App. 144, the case of the United In 49 Tex. Civ. Press, News Service v. Associated not clear ternational 107 W. the de- S. .that following: reported other, 248 U. in the S. conflict cisions 211, 2 A. L. R. turns the instant case S. Ct. sought enjoin competition. question Press The Associated business of unfair prominent question International News Service from was not case bulletins, its own news taken Texarkana court. discussed members, or its and from the newspapers published rules the law announced members of the as- not denied the Texarkana court 269 SOUTHWESTERN REPORTER overruled. cation of at as concerned out 39 S. Ct. the Texarkana than which was decided these different lowed and provisions items such as aré announced arkana court works, order, nounced. Service without property tered competition, upon Appellee’s Overruled. As [7] As this court, ten extant at the stated in the early opinion, as it exists at v. Associated the United States years certify, the doctrine. will in the case of applied However, a date as is presented, news items or in the case of indulge announced fact reasons, the case after the decision matter of court would have to the the case act which we decided this to this case December time; original opinion, the case. Co., supra. Press, 248 U. S. another be tried consideration, which, called general question of International affirmed applicable rehearing importance if practicable. Court presumption do not feel Vernon Abstract of act, for the interlocutory on its element en- unpublished -and rean- 3. and with- of unfair followed R. merits to all metal culvert in if the appli *4 Unit more Tex 215, fol if reasonably prudent under all facts and circumstances. been seen 300 or 400 Ann. Pen. Code along ing speed 1918, 30 ing injuries pealed limit in cities at 20 miles matter of miles an c. miles bile at unlawful mately cluding recovery by ligence stated. age state caused. ment ligence 155, Municipal corporations provision Test miles Automobilist’s violation of That Acts 35th Violation would have done art. to- statute in raising speed caused § automobile. hour, per hour, hour of motor 820o), and error precluding contributory negligence was law held <@=>68 statute held immaterial. limit to 35 miles thereby. limit was speed, repealing by plaintiff’s attempt Supp. 1918,-art. 820o),-limit- by driving piled dirt, city, damage repealed by vehicles on person in pending appeal —Test of held offender for yards away. <§=>1107— proximate substantially held recovery Ann. Pen. negligene per se, at rate of at to avoid sewer proximate cause, immaterial, at rate of injuries which could have contributory plaintiff’s hour. ear Acts per highways Acts 38th 20§ Repeal cause of injury proxi- Code hour, pend- by striking whether least automo- injuries of act situa- Supp. ditch, judg- least dam- view Leg. did, negli- Negligence <@=>136(9)Contributory gence jury, 6838.) reasonable minds dif- SCHAWE v. LEYENDECKER. fer. Texas. Austin. wheth- differ as to reasonable minds If ordinary care, contribu- er exercised jury. tory negligence 1. Trial 142—Case can withdrawn jury only ordinary cannot differ minds Municipal corporations <@=5806(3) toas conclusion from evidence. —Auto- mobilist’s failure to observe harricade dirt jury, To authorize withdrawal case from of ordinary of'damage proximate held cause to car. must be no room for minds to there differ failure observe road to be Automobilist’s ahead as to conclusion drawn evi- way, obstructing and discover barricade of dirt dence. automobile, damage proximate cause of <@=>799 Municipal corporations —Failure as matter of law. along place other barrier sewer ditch than negligence pile proximately corporations dirt Municipal <@=5806(1) —Care causing damage automobile; “barricade.” quired of driver to discover ditch automobile place along in road. Failure barrier sewer ditch across street than 3 or 4 dirt, safety depends feet of whose on his observ- One yards, which could be seen 300 road, or ditch on which driv- obstruction proximately negligence, causing damage to ing automobile, will be excused failure running attempt-to into automobile culvert in where attention was diverted discover ditch, “light required whether avoid by barricade” that attention under such circumstances of or- weight illumination; refers to ordinance dinarily prudent person be so diverted. being “barricade” obstruction block passage. vent Caldwell Error Coun- definitions, [Ed. Note.—For other see Words Jeffreys, Judge. ty; Phrases, M. C.' Barricade.] in all Indexes other cases see and KEY-NUMBER ^=For
Gilmore v. Sammons
269 S.W. 861
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