(209 P.)

Suit for injunction by Fanny Riegel Evans | Patent Office, Washington, D. C., for candies, and others against Laura M. Shockley. chocolates, jellies, marmalades, preserves, From an order granting an injunction pendente lite, defendant appeals. Affirmed in District Court of Appeal, and hearing denied in Supreme Court.

KNIGHT, Justice pro tem. This is an appeal by defendant, Laura M. Shockley, from an order awarding plaintiffs an injunctioned pendente lite restraining defendant from using upon any place of business conducted by her, or in which she might be interested, and in any advertising, or printed, written, or painted matter, or in any linen, table coverings, napkins, or silverware, the "Mary Elizabeth," or "Mary Elizabeth's," or "Mary Elizabeth of San Francisco," or any colorable simulation thereof. The application for said injunction was heard and determined upon the allegations of the verified complaint and upon certain affidavits filed on behalf of the respective parties.

statement is sufficient for the purposes of relief sought. We do not understand that considering the law points involved.

such is the law. It should be borne in mind [1] We are of the opinion that under the that in this particular phase of the case we express statutory law of this state the lower are not dealing with the question of “unfair court was justified, in view of the facts pre- competition," but with property rights. If sented, in granting the preliminary injunc- | plaintiffs were seeking the injunction upon tion. The evidence shows without dispute the single theory that it was a case of unthat at the time of the commencement of the fair competition, appellant's point might be action plaintiffs were the exclusive owners of well taken. said trade-name by reason, first, of the issuance of said certificate of registration by the federal government; and, secondly, by the recordation of said trade-name with the secretary of state in this state and the subsequent assignment thereof to plaintiffs.

Sections 3199 and 3197 of the Political Code provide:

"Sec. 3199. Any person who has first adopted and used a trade-mark or name, whether within or beyond the limits of this state, is its original owner. Such ownership may be transferred in the same manner as personal property, and is entitled to the same protection by suits at law; and any court of competent jurisdiction may restrain, by injunction, any use of trade-marks or names in violation of this chapter."

"Sec. 3197. Any person may record any trademark or name by filing with the secretary of state his claim to the same, and a copy or description of such trade-mark or name, with his affidavit attached thereto, certified to by any officer authorized to take acknowledgments of conveyances, setting forth that he (or the firm or corporation of which he is a member) is the exclusive owner, or agent of the owner of such trade-mark or name."

These provisions seem to be clear and unambiguous. By them it is provided that ownership of a trade-name may be acquired, either by a prior adoption within or without the state, or by registering such name with the secretary of state. Here plaintiffs have done both. The statute also expressly provides that such ownership may be transferred. The rights thus acquired under the statute are property rights and may be protected by injunction from invasion. Spieker v. Lash, 102 Cal. 38, 36 Pac. 362; ItalianSwiss Colony v. I. Vineyard Co., 158 Cal. 252, 110 Pac. 913, 32 L. R. A. (N. S.) 439. [2] Appellant's principal contention on this branch of the case is that the acquisition by plaintiffs of the name "Mary Elizabeth Tea Room" conveyed nothing, as the right to an exclusive use of a name is postulated on the user of the name in connection with some business, and that since plaintiffs did not purchase the business from Harris and wife, nor continue its use, but only purchased the name, that plaintiffs are not entitled to the

There is nothing in the Code sections above quoted, we think, to justify appellant's contention in this respect, and certainly we are not allowed to enlarge upon the provisions of the statute. The principle that an assignee of a trade-name, who does not pur; chase or continue the business, may be protected by an injunction under the provisions of said Code sections above quoted, seems to be recognized in Spieker v. Lash, supra.

Appellant's final contention, to the effect that plaintiffs have no right to an injunction, because it does not appear that they have suffered irreparable injury or damage, is also, we think, without merit. Dealing with the question as we have, from the standpoint of the invasion of property rights, it was a proper case for injunction. Regis v. Jaynes, 185 Mass. 458, 70 N. E. 480, cited with approval in Modesto Creamery v. Stanislaus Co., 168 Cal. 289, 142 Pac. 845. Holding, as we do, that the preliminary injunction was properly issued, under the theory that plaintiff's property rights have been invaded it is unnecessary to discuss the question of “unfair competition."

The order appealed from is affirmed.

We concur: TYLER, P. J.; KERRIGAN, J.

Opinion of Supreme Court in Bank
Denying Hearing.

PER CURIAM. The application for an order that the above-entitled cause be heard and determined by this court after judgment by the District Court of Appeal is denied. In so doing we do not at this time either approve or disapprove that portion of the opinion which holds that a registered trade-mark or trade-name can be lawfully transferred, so as to separate it from the business or commodity to which it pertains. That holding was not necessary to the decision, because the order appealed from is sufficiently sup ported by the showing made in the trial court in support of the claim of unfair competition.

LENNON, WASTE, LAWLOR, JJ., and MYERS, Justice pro tem., concur.

(209 P.)

GRIFFEY et al. v. PACIFIC ELECTRIC

RY. CO. (Civ. 3853.)

(District Court of Appeal, Second District, Division 2, California. July 11, 1922. Hearing Denied by Supreme Court Sept. 7, 1922.)

1. Appeal and error 874(5)-Authority to change judgment not reviewable on appeal from grant of new trial.

Right of court, on defendant's motion to vacate joint judgment for plaintiffs and enter judgment for each of different amounts, aggregating the amount of the first, cannot be considered on appeal from order granting new trial for excessive damages, any more than it could have been considered on the motion. 2. New trial

single lump sum, the jurors' answers to special interrogatories may be looked to, in order to determine how they arrived at the amount of their general verdict.

8. Death 85-Damages limited to pecuniary loss to beneficiaries.

Proc. 8 377, for wrongful death, are limited The damages recoverable under Code Civ. strictly to pecuniary loss to the beneficiaries caused by the death.

9. Death 58(2) - Evidence of competency and disposition of deceased adult child to aid parents necessary.

of an adult child, by way of deprivation of diTo show damages to a parent from death rect financial assistance or services, there must 163(2) — Judgment falls on be at least some evidence tending to show competency and disposition of the child to render service to, or contribute to the aid of, the parent.

granting of new trial. Whatever judgment is legally in force prior to order for new trial falls with the order. 3. Appeal and error 933(4)-Relative to presumption, statement in order that new trial was granted for excessive damages tantamount to specification of insufficiency of evidence.

Statement in order for new trial, that it is made on the ground of "excessive damages," is tantamount to specification that it is granted on insufficiency of the evidence to sustain the verdict, obviating the presumption, otherwise obtaining on appeal, under Code Civ. Proc. 657, as amended by St. 1919, p. 141, that the order was not based on that ground.

10. Death 95 (3)-Expectancy of life of parent considered in fixing damages for death of adult child.

In estimating, as an element of a parent's damages from wrongful death of an adult child, the present value of financial assistance or service which could reasonably have been expected, the life expectancy of the parent, and not of the child, is to be considered.

11. Death 86(1)-Accommodations furnished by parent considered in estimating damages from death of adult child.

In estimating the pecuniary value to a par

4. Death 97-Award of damages not exempt ent of services of an adult child as an element from interference by trial judge.

Provision of Code Civ Proc. § 377, that, in action for death by wrongful act, "such damages may be given as under all the circumstances of the case may be just," does not make amount of award exclusively a matter for the jury, with which the trial judge may not interfere.

5. Appeal and error 979 (5)-Grant of new trial for excessive damages disturbed only for plain abuse of discretion.

Order granting new trial on the ground of excessive damages will be disturbed only in case it clearly appears that the trial judge abused his discretion; every intendment being indulged in support of his action.

6. Appeal and error 1015(3)-Weight of uncontradicted evidence of damages for trial judge on motion for new trial.

Though there be no conflict in the evidence as to the nature and extent of plaintiffs' pecuniary losses from deceased's death, the probative force and effect is ultimately for the trial judge's determination on motion for new trial. 7. Appeal and error 837 (7)-Answers to special interrogatories looked to in determining how verdict was arrived at.

Though, in action for death of an adult by wrongful act, Code Civ. Proc. § 377, gives the heirs a single joint cause of action, and the verdict, if against defendant, should be for a

of damages from the child's wrongful death, the value of board, lodging, and other accommodations furnished to the child by the parent, with whom the child was living, is to be considered.

12. Death 88-Only "pecuniary" value of deceased's society recoverable as damages,

It is only the "pecuniary" value of deceased's society, comfort, and protection which his beneficiaries can recover as an element of damages for his wrongful death.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Pecuniary.]

13. New trial

76(4)-No abuse of discretion shown in grant for excessive damages.

Evidence in action by husband, father, and mother for wrongful death of adult woman held to show no abuse of discretion in granting a new trial on the ground of excessive damages.

14. New trial 76(4)—Properly granted in death action, where loss of any heir is assessed too high.

action for wrongful death, and the verdict beThe heirs having but a single joint cause of ing required to be for a single lump sum, it is properly set aside and new trial granted, where it appears from answers to special interrogatories that an excessive award was made in as、 sessing loss of any of the beneficiaries.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Superior Court, Los Angeles [the court possessed the right to vacate the County; Charles Monroe, Judge.

Action by Roy B. Griffey and others against the Pacific Electric Railway Company. From an order granting defendant a new trial, plaintiffs appeal. Affirmed,

Cooper, Collings & Shreve, of Los Angeles, for appellants.

Frank Karr, R. C. Gortner, and W. R. Millar, all of Los Angeles, for respondent.

FINLAYSON, P. J. This is an appeal from an order granting defendant a new trial in an action wherein plaintiffs, as the heirs of Gladys Rhodes Griffey, a married woman, sue defendant, under section 377 of the Code of Civil Procedure, to recover damages for the death of Mrs. Griffey, alleged to have been caused by the negligence of defendant. The plaintiff Roy Griffey is the surviving husband, and the plaintiffs Fred Rhodes and Margaret Rhodes are, respectively, the father and mother, of the deceased. The jury returned a general verdict in favor of plaintiffs for the sum of $10,000, and likewise made answer to certain special interrogatories which had been submitted to them. The questions submitted and the jury's answers thereto were as follows:

"(1) Q. How much pecuniary damage, if any, do you find that Roy B. Griffey suffered by reason of the death of his wife? A. One thousand [dollars].

"(2) Q. How much pecuniary damage, if any, do you find that Fred Rhodes suffered by reason of the death of the deceased? A. Eight thousand [dollars].

"(3) Q. How much pecuniary damage, if any, do you find that Margaret Rhodes suffered by

reason of the death of the deceased? A. One thousand [dollars]."

first judgment and cause the second to be agitated on the motion for a new trial, and entered was not a question which could be

it is not a matter which can be considered

on this appeal from the order granting the new trial. Whichever judgment was legally in force prior to the time when the new trial was ordered fell with the granting of the new trial.

[3] Because the order granting a new trial did not state in so many words that it was granted upon the ground of the insufficiency of the evidence to sustain the verdict, it is claimed that it must be presumed, on this appeal, that the evidence was sufficient to sustain the verdict for the full amount thereof $10,000. This claim is based upon that provision of section 657 of the Code of Civil Procedure which, since the amendment of 1919 (St. 1919, p. 141), reads:

"When a new trial is granted upon the ground of insufficiency of the evidence to sustain the verdict, the order 'shall so specify; otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground."

By subdivision 5 of section 657, "excessive damages, appearing to have been given under the influence of passion or prejudice," is made one of the grounds for a new trial, and by subdivision 6 "insufficiency of the evidence to justify the verdict" is made another ground for a new trial. An order granting a new trial on the ground of "excessive damages" necessarily is made under one or the

other of these two subdivisions. Whether

the order in the instant case was made under subdivision 6-that is, whether it was made on the ground that, irrespective of the influence of any passion or prejudice, the eviOn the same day that the general verdict dence fails to show that the pecuniary loss was rendered and the answers to the special suffered by, plaintiffs amounted to $10,000— questions were returned, the clerk entered or whether it was made under subdivision a judgment against defendant for $10,000. 5 on the ground that the verdict was inThis judgment made mention of the general fluenced by passion and prejudice, in either verdict only. Within 24 hours after the rendition of the verdict, the trial court, on defendant's motion, vacated that judgment and entered a judgment against defendant which, after reciting the general verdict, the special interrogatories, and the jury's answers thereto, adjudged that the husband of the deceased, Roy B. Griffey, recover of defendant the sum of $1,000, that the father, Fred Rhodes, recover the sum of $8,000, and that the mother, Margaret Rhodes, recover of defendant the sum of $1,000. Thereafter, and in due time, defendant moved for a new trial upon all of the statutory grounds. The order granting the motion states that it is granted "on the ground of excessive damages."

[1, 2] It is objected that the court had no authority to set aside the first and direct the entry of the second judgment. Whether

case the statement in the order that it is made on the ground of "excessive damages" is tantamount to a specification that the new trial was granted on the ground of the insufficiency of the evidence to sustain a verdict for $10,000. If a new trial on the ground of "excessive damages" be granted under the sixth subdivision, it necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury. If it be granted under the fifth subdivision, it is equally true that it is granted on the ground of the insufficiency of the evidence to sustain a verdict for an amount as great as that returned by the jury; for, as our Supreme Court has pointed out, to say that a verdict has been influenced by passion or prejudice is but another way of saying that it exceeds any amount justified by the evidence. Doolin v.

(209 P.)

Omnibus Cable Co., 125 Cal. 144, 57 Pac. 774; | unless it plainly appears that the trial judge Graybill v. De Young, 140 Cal. 327, 73 Pac. abused his discretion. Every intendment is 1067; Zibbell v. Southern Pacific Co., 160 to be indulged here in support of his action, Cal. 254, 116 Pac. 513. See, also, Meinberg and it will not be disturbed if the question v. Jordan, 29 Cal. App. 762, 157 Pac. 1005, of its propriety is open to debate. Doolin v. 1007. For these reasons there is no merit in Omnibus Cable Co., supra; Harrison v. Sutthe claim that on this appeal we are pre-ter Street Ry. Co., supra. And even though cluded from determining whether the trial court abused its discretion in granting a new trial on the ground that the damages are excessive.

there be no conflict in the evidence as to the nature and extent of the pecuniary losses suffered by the plaintiffs, nevertheless the probative force and effect of the evidence upon that phase of the case is ultimately for the determination of the judge of the trial court upon the hearing of the motion for a new trial. Meinberg v. Jordan, supra.

[7] That the evidence in this case warranted the court in granting a new trial is clearly apparent. We know from the answers to the special interrogatories that the

$8,000, the mother's at $1,000, and the husband's at $1,000. It is true that in this class of cases the Code gives to the heirs a single joint cause of action, and that the verdict, if against the defendant, should be for a single lump sum (Robinson v. Western States Gas Co., 184 Cal. 401, 194 Pac. 39); but this is no reason why we may not look to the jurors' answers to the special interrogatories in order to determine how they arrived at a total of $10,000.

[4] Because it is declared by section 377 that, in actions of this character, "such damages may be given as under all the circumstances of the case may be just," it is claimed that the amount of the award is exclusively a matter for the jury, with which the trial judge may not interfere. There is not even the faintest semblance of merit in this point. There is no reason to believe that the Leg-jury assessed the father's pecuniary loss at islature intended to place cases of this character in a special class with respect to the right of the trial court to grant a new trial upon any of the grounds enumerated in section 657 of the Code of Civil Procedure. The right of the trial judge to grant a new trial in this class of cases when he deems the damages awarded by the jury to be excessive has received the sanction of our Supreme Court in a number of cases. See, for example, Harrison v. Sutter Street Ry. Co., 116 Cal. 156, 47 Pac. 1019. In Bond v. United Nowhere in the record can we find anyRailroads, 159 Cal. 285, 113 Pac. 372, 48 thing to warrant the conclusion that the L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50-father suffered a pecuniary loss of $8,000, an action by a mother to recover damages or that the mother's actual loss was as great for the death of her son alleged to have been as $1,000. The sole evidence bearing upon caused by the negligence of the defendant- the matters which were proper subjects for Mr. Justice Shaw, speaking for the court, consideration in estimating the pecuniary says: damages resulting to plaintiffs from the death of Mrs. Griffey was the evidence given by the father, the plaintiff Fred Rhodes, whose testimony in that regard, stated in narrative form, is substantially as follows:

"With regard to the danger of excessive verdicts, * we can only say that the remedy is practically committed entirely to the judge who presides at the trial in the court below. If he does his duty, he will carefully weigh the evidence himself, and will not allow a verdict to stand for its full amount, if he believes it gives more damages than the pecuniary loss that it may be reasonably supposed the plaintiff will actually suffer by being deprived of the services, earnings, society, comfort, and protection of the child. * Juries should be insistently cautioned not to allow compensation for the sorrow and distress which always ensues from such a death, nor for a pecuniary loss which is remote or conjectural in the particular case. The trial court should be vigilant to set aside verdicts where there is reason to believe this has been done, or that passion, prejudice, or sympathy has influenced the jury to give more than the facts reasonably warrant."

*

[5, 6] For the foregoing reasons, the order granting a new trial must be affirmed unless we can say that the trial court abused its discretion. When the action of a trial judge in granting a new trial on the ground of excessive damages comes before an appellate court, the order will not be reversed,

I am 58 years old. I have lived in Los Angeles county a year. I did not do any business here until last February, when I went into a on American avenue in Long variety store Beach. Gladys Rhodes Griffey was my daughter. She was married to the plaintiff Roy B. Griffey. My wife, the plaintiff Margaret Rhodes, and I separated about 15 years ago. At the time of the accident my daughter was living with me. Her husband was a salesman for the Cadillac automobile people. My daughter was 24 years old at that time. She had been married 4 years. She had no children. She was not employed at the time of the accident. She was keeping house for me. Her husband, who was the agent for the Cadillac automobile at Santa Ana, was always at my house in Long Beach on Sundays. He came to the house for Saturday night and Sunday. Except that she kept house for me, my daughter she did some had never worked. Oh, yes;

moving picture work once at a studio, but she did not work there regularly; they called her at times. She had a friend that had a studio, and that friend called her occasionally, and she would go over and appear in pictures and then