*1 appellant upon filing proof of loss pay refused to the claim and on December SUNDACO, INC., al., Appellants, et 4, 1968, attorney appellee’s made written payment which was refused demand al., Appellees. Texas STATE of et Thereafter, 9, appellee’s December 1968. No. 4396. petition, not original which was made part transcript, shown Appeals Court of Civil 10, on January record to been filed Eastland. 1969, more the refusal than 30 after Sept. 18, 1970. pay Appel the claim. demand liability denying Rehearing original lant’s answer Denied Dec. 1970. 28, 1969, “A alleges February filed Rehearing Second Denied Feb. proof filed the De of loss was first with fendant November Plaintiff on by Plain
and a formal demand was made appel
tiff on December 1968”. What regarded expressly
lant has admitted
true, pleader, is conclusive complain
appellant will not be heard
appeal trial court found fact alleged Pleading,
as he it. 45 Tex.Jur.2d Admissions, seq. The 81 et as
VI. Section
signment of error is without merit and why
must be overruled. Another reason point appel-
this must be overruled is that
lee second amended went trial
petition February 19, filed on with liability failing
appellant denying still claim, any payment
to make on the but demand,
failing plead brings no point holding in Interna within the Ramage et Security
tional Life Ins. Co. v.
ux., 944 (Tex.Civ.App 446 S.W.2d . —Amar e.), which has de illo writ ref’d n. r. appellant’s posi point
cided adverse appellant for
tion. cases cited filing filing of suit or
proposition that the claim does proof loss or denial of the also, Tex.Civ.App., 445 S.W.2d See Art. not constitute a demand under 3.62 606. inapplicable to situation since this fact a formal written evidence here shows and re payment and a failure demand days. pay same within 30
fusal trial court af-
firmed.
ELLIS, sitting. J.,C.
COLLINGS, Justice. City brought suit Sundaco, Inc., Stores, against Inc., Landau Brown, United, Inc., alleg- and Jerry Cook a ing violation Article 286a the Ver- seeking and non’s Ann.Texas Penal Code injunctive will here- relief. Inc. appel- after be to as referred lants, Stores, M. Landau Cook N. United, Inc., be to as referred Clark’s. court, by stipula- Upon a trial before the tions, admissions, interrogatories and testi- case, mony given the court con- in another arrangement be- cluded there was an whereby tween Sundaco or contract into a lease Clark’s entered for a stated providing that with Sundaco lease from would consideration Sundaco begin- in Abilene premise a certain night 11:59 P.M. Saturday ning on following expiring midnight Sun- period of such day; that at beginning buy would from Clark’s owned and merchandise goods, wares option to with at such location end at the to Clark’s return same con- upon circumstances period certain that such further found court ditions. The subterfuge; was a contract lease or Clark’s; for a conduit serves as ego the alter that Sundaco sales, purpose that for that Sun- agent of Clark’s is an daco into collu- have entered daco and Clark’s evading Article purpose of for the sion and con- such upon Based 286a. clusions, granted an them from preventing defendants any through offering for sale selling or agreement, return lease or sale type of obliging forcing or compelling, items named certain to sell Saturday and Sun- consecutive two any type of engaging day, The defend- purpose. accomplish Berman, Mitchell, Fichtner Harold & appealed. ants Dallas, Berman, Schulz, Burke, Hanna & Hanna, Abilene, Bob appellants. Code, 286a, as ef- Article Texas Penal 28,1967, August provides that: fective Butler, Butler, Whitten & Ben Nie- Don decken, Atty., Atty., City Paynter, Any person, Ed on both the two Dist. “Section Abilene, appellees. Saturday (2) consecutive amendment of Article 286a sale or Prior to the
Sunday, sells or offers oblige em- as of his effective compel, shall force or from its Abilene items) engaged ployees (certain sell named those articles enu- portion of all or a guilty of misdemeanor.” shall be days per statute seven in the merated purpose being “Sec. 4. The of this Act *3 it im- made amended statute week. health, promote to the and recreation Abilene operate its possible for Clark’s state, people the this welfare of of the Saturdays and Sun- on consecutive operation any of business whether days. individual, any corpora- partnership or Sundaco, contrary incorporated this provisions tion to the of Inc. was on Au- 21st, public gust Act is Its Aar- declared be a nuisance stockholders are Sundaco, Bloom, any person apply court is of may any and who President may of competent jurisdiction for and of and Vice President and Treasurer restraining Levitz, vi- of Gary obtain is Treasurer an who Sundaco, proceedings Agent Registered olation of this Act. Such as well the in- of rules of other the the guided shall be for Service and son of President Inc., Dallas, junction proceedings.” Company Levitz Furniture of Jay previously in this an Intervenor case. Legisla- is the intent of the “Sec. 5a. Fichtner, Attorney of firm is S. whose Pe- 286 and 287 ture that Articles Hanzi appellants, George Record and consid- not be Texas are nal Code of 29th, are also August stockholders. On Act; provided, this repealed by ered as Sundaco, 1967,the assets were gross of Inc. Ar- however, of said provisions that ($4,- Four Dollars Thousand Hundred Five items sales of apply to ticles shall any never 500.00). It has had outlets are this Act which of listed in Section level, sale ex- of merchandise at a retail day or to be sold on forbidden cept those from outlets “leased” Clark’s Leg., 57th Act. Acts in this named only. operations Sunday other stores for 1961.” Nov. eff. C.S., p. ch. 1st Prior to the 286a, amendment of Article Clark’s had continuously operated its Abi- points In appellants numerous contend lene store seven week, each had that the court erred in concluding that never any made arrangements to sublease lease and contract between Sundaco the store to another party for a in- short subterfuge, appel- Clark’s was a and that terval; nor had Clark’s entered into an lants into such lease and contract entered agreement to sell its entire' of mer- stock purpose evading in for the of collusion chandise, purchaser having with the 286a; provisions of Article that the court right to day. return same after one On concluding op- in erred the combined that 29th, 1967, Sundaco, Inc. entered opera- appellants eration of constitutes an into the so “lease” and “Contract of called business; and that the same Sunda- it recited Sale or Return” wherein was agent an and as a conduit acting co proposed open depart- that Sundaco in merchandise Clark’s Clark’s premises ment store on Clark’s finding erred Sunday; that goods, September and sell consti- appellants’ conduct and actions that Sunday on each and merchandise wares nuisance, violat- and that the court tuted a lease, thereafter, form, pro- in- and which rights granting the ed “leases” such store taken. vides appeal is junction from which Sunday, “buys” all merchandise following each points overruled. These on each Satur- Clark’s, 11:59 P.M. as shown facts and circumstances the merchan- option to return day, with an conclusions support the record “Con- day. Such on the next not sold dise court. val- managers does not set a employees tract of or Return” as are Sale employed by in Clark’s person on the stock of merchandise Clark’s. The same tie store, merely provides manager serves as store for both but Sundaco Sundaco percent seventy-five Abilene A pay Clark’s location. during comparison employees (75%) gross of its sales Sundaco’s the lists of has no only operations. only Clark’s and shows that one person employee merchandise record of the value an store, pur- purports employee not also an chase, any physical inven- Apparently, employee it take nor does store. even that does tory employed such merchandise. Sundaco some other franchisee sub- except building. on Sun- any not “sell” merchandise lessee of in the same then, only “received” from day, are ei- daco admits that its *4 arrange- employed under similar or other oc- by or others ther Clark’s some Clark’s en- with sales of the the 18th cupant In connection Abilene store on ments. store, in employees a Sun- day stock of merchandise sell January, tire 1968. Such proce- of, all, not follow the portion do those items enumerated daco or a days Act in the Bulk Sales provided for the two consecutive dures 286a on Article Cor- employees Business Sunday. of the Texas Those Saturday or Article 5.10 Act, Sundaco, smocks, the poration wear wear V.A.T.S. usually wear they
same smocks At the question, Abilene store in (2) two Sunday The working for Clark’s. while large signs place have remained at all operation, hours, during the Sundaco store times, including Sundays, identifying the hours Sunday are the same place of business as “CLARK’S”. All Appellants arrangement. such prior to newspaper advertising by done to Sundaco they continue stipulated that has asserted it to be “Exclusive Lessee of future. procedure in the such follow 29th, 1967, Prior CLARK’S”. part December, and until 1967, immediately the latter after the amendment was pleadings when for brought this case of Article 286a which made it unlawful attention, store, Appellants’ signs operate two Clark’s to its were in Abilene place Saturdays on the front question prohibited articles on both store in days week, seven (7) Sundays, a that into the saying “Open Clark’s entered Sun- day pro- to 6:00 12:00 P.M.” There is no indi- lease and sales contract with any change cation that to do that which has been made in for Sundaco viding arrangement by the statute from prohibited for merchandise Clark’s was Sun- is, and, operate Sunday only doing, daco’s operations, that from on prohibited articles appearances, outward sell it remains the same store and ar- selling such (7) days per opera- Sundays seven week. In its while Clark’s supports tions, Saturdays. The record has articles on Sundaco used various ticles and Clark’s that supplies. proce- the conclusion Sundaco Clark’s stock at the same business answering telephone operate the same dure days each seven people Sundays telephone number) place by store on the same (same both items on prohibited “Sundaco, sell the Exclusive Lessee of Clark’s”. week and lease and Sundays. The Appellants’ manager Saturdays has local admits he corpo- into between phone entered a answered contract never heard business sales opera- legal a ostensibly indicates on this fashion. Merchandise sold rations business of a alone day by price by it is sold at the same however, con- opinion, Sunday. In our the other of the week six findings of Sunday The evi- except special sales. clusions Sunda- apparent a dence indicates that has made based judgment subterfuge and is a the same store co state wide effort hire 532 supported by correctly
thereon are
the record. Facts
held that Article 286a authorizes
particularly
injunctive
circumstances which are
corpora
relief against either
persuasive in this
are:
(1)
persons.
connection
tions
natural
Hill v. Gibson
timing
Center,
the initiation of
Sundaco Discount
437
(Tex.
S.W.2d 289
scheme;
Civ.App.
offi-
(2)
e.);
fact
Sundaco’s
ref. n. r.
State v.
cers,
Stores,
are substan-
directors and
Leonard’s
(Tex.
appellants based. judgment pur Sunday while in business still weekly sublease through a go porting Appellants’ rehearing motion for is over- persuasive likewise stock is transfer ruled. judg court’s support Rehearing. ment. On Motion Second Contrary appellants’ conten for rehear- In second motion points should ing their 13th and 14th the court it is this cause contended be reversed and remanded with instructions appellee, because The State dismiss judgment final estopped Ector District Court 161st Judicial regard allegations to its
County with point is overruled. appellants. The es- as an of a determined only to matters
toppel extends pre- in a necessarily involved
expressly or parties. action between
vious subject identities of also be
There must action; 34 and causes
matter Tex.Jur.2d instant seq. In the et Judgments, page 597 N. nor M.
case, City of Abilene neither Ector parties to were
Landau Stores identity of neither
County suit. There was of action.
parties or of causes been consid- points have
Appellants’ are overruled.
ered and *6 al., Appellants,
Winston BRUMMETT et Lubbock, Brummett, Pounds, Phil Minor appellants. Appellee. CONAWAY, T. J. Jr., Marley, Harry Jung, & H. Jung No. 8083. Crosbyton, appellee. Appeals Court Civil Amarillo. JOY, Justice. Dec. appeal tempo-
This is writ of an from a against appellants rary injunction issued injunc- temporary trial court. tion is dissolved. Conaway (Conaway hereafter) filed
T. J. application temporary for writ of March Brum- Winston (Brummett hereafter) mett and wife Festivals, here- (Southwest Southwest coming upon enjoin them from after) to Conaway Brummett lands leased par- conducting a rock festival.1 The play 1. We the term “rock understand use of wherein the or bands a form or band relationship type festival” has no a hard music of music referred to as “rock” shindig young highly popular people. mineral but to a refers musical with the