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(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 pen- etc.; the same being affixed to these goods dente lite, defendant appeals. Affirmed in with printed labels, etc. In the year 1917 District Court of Appeal, and hearing denied one William E. Harris and wife opened a tea in Supreme Court.

room in Los Angeles under the trade-name Charles C. Boynton, of San Francisco, for

"Mary Elizabeth Tea Room," and filed with appellant.

the secretary of state of this state, in accordGrove L. Johnson, of Sacramento, and Hi

ance with section 3197 of the Political Code, ram W. Johnson, Jr., of San Francisco, for

their trade-name “The Mary Elizabeth Tea respondents.

Room." Thereafter, upon the objection of

these plaintiffs to the use of said name by KNIGHT, Justice pro tem. This is an ap |

said Harris and wife, the latter ceased doing peal by defendant, Laura M. Shockley, from

business under said trade-name, and assignan order awarding plaintiff's an injunction

ed said trade-name and the right to exclusive perdente lite restraining defendant from

use thereof to the plaintiffs. On May 9, 1921, using upon any place of business conducted

the defendant, Laura M. Shockley, and a by her, or in which she might be interested, partner (who retired from the firm prior to and in any advertising, or printed, written, or

any advertising or printed, written or the commencement of this action) opened a painted matter, or in any linen, table cover- | tea room at No. 445 Powell street, San Franings, napkins, or silverware, the name cisco, near the St. Francis Hotel, under the "Mary Elizabeth," or "Mary Elizabeth's," or name of “Mary Elizabeth of San Francisco," "Mary Elizabeth of San Francisco," or any

and all of the linen used therein was marked colorable simulation thereof. The applica- and the silver was engraved “Mary Elization for said injunction was heard and deter- beth." All advertising matter also bore said mined upon the allegations of the verified trade-name. complaint and upon certain affidavits filed on

| It appears from the evidence offered that, behalf of the respective parties.

because of the use of said trade-name, cusFrom the record presented on said applica- | tomers, particularly tourists, would occasiontion the following facts appear: About the ally, from day to day, call at said tea room year 1897. in the city of Syracuse, state of so conducted by defendant, and make in. New York, one of the plaintiffs, Mary Eliza- quiries as to whether defendant had on sale beth E. Sharpe (formerly Mary Elizabeth

the products of the plaintiffs, and that, when Evans), who was then 13 years of age, began reply was made in the negative, several inmaking and selling candies to her friends, quirers highly praised plaintiffs' products which soon became known about that city as and advised defendant to secure the agency, "Mary Elizabeth's" candies. Because of its which she endeavored to do, but received no good quality the candy soon came into much reply to her letter. According to plaintiffs' demand, and in the year 1900 a copartner- evidence, as soon as plaintiffs learned of the ship was formed between the maker of said defendant's appropriation of said trade-name candies and the other plaintiffs herein, and they protested, because, it was claimed, the a place of business was opened in said city use thereof was a source of confusion to the of Syracuse. The business rapidly developed, public and an injury to plaintiffs' business. and during the next few years tea rooms On June 28, 1921, defendant filed with the were opened and operated under the name county clerk of the city and county of San "Mary Elizabeth's" in New York City, Bos: Francisco, and thereafter published in a ton, Syracuse, Newport, R. I., and in the city newspaper, a certificate announcing that deof Hamilton, island of Bermuda, all of which, fendant was doing business under the fictiexcept the one in Bermuda, were going con- tious name of "Mary Elizabeth of San Francerns at the time of the commencement of cisco" at No. 445 Powell street. this action. As a part of that business, con- There is a dispute as to the reason why fections and pastries of different kinds were defendant adopted said trade-name, but in made and sold under the name “Mary Eliza- this respect defendant admits that she had beth's," shipments of said products were visited plaintiffs place of business in New made to various parts of the country, includ- York City and "was agreeably impressed ing California, and plaintiffs claim that said therewith.” After plaintiffs had objected to tea rooms and products have acquired a wide the use of such trade-name by defendant, nereputation in this country and abroad, and gotiations were had between the parties for that resulting therefrom a business of great a settlement of their dispute, and defendant value, alleged by plaintiffs to be worth $500,- | finally agreed to accept from plaintiffs $250 000, has been established under the name to partly cover the expenditure she had been "Mary Elizabeth's.” Under the terms of the put to in advertising and buying equipment, lease, plaintiffs allege that they pay a rental but plaintiffs declined to pay any greater of $40,000 per year for the New York tea sum than $100. This action was thereupon room.

commenced. There are, of course, many othIn 1914 plaintiff's trade-marked the name er facts stated by the affidavits and the veri. "Mary Elizabeth's" in the United States fied complaint, but we think the foregoing 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 issu- There is nothing in the Code sections above ance of said certificate of registration by the quoted, we think, to justify appellant's confederal government; and, secondly, by the tention in this respect, and certainly we are recordation of said trade-name with the sec- not allowed to enlarge upon the provisions retary of state in this state and the sub- of the statute. The principle that an assequent assignment thereof to plaintiffs. signee of a trade-name, who does not pur,

Sections 3199 and 3197 of the Political chase or continue the business, may be proCode provide:

tected by an injunction under the provisions "Sec. 3199. Any person who has first adopted

of said Code sections above quoted, seems to and used a trade-mark or name. whether with-| be recognized in Spieker v. Lash, supra. in or beyond the limits of this state, is its orig Appellant's final contention, to the effect inal owner. Such ownership may be transfer- | that plaintiffs have no right to an injunction, red in the same manner as personal property, because it does not appear that they have and is entitled to the same protection by suits suffered irreparable injury or damage, is at law; and any court of competent jurisdic- also, we think, without merit. Dealing with tion may restrain, by injunction, any use of the question as we have, from the standpoint trade-marks or names in violation of this chap

of the invasion of property rights, it was a ter."

proper case for injunction. Regis v. Jaynes, "Sec. 3197. Any person may record any trademark or name by filing with the secretary of

185 Mass. 458, 70 N. E. 480, cited with apstate his claim to the same, and a copy or

proval in Modesto Creamery v. Stanislaus description of such trade-mark or name, with

Co., 168 Cal. 289, 142 Pac. 845. Holding, as his affidavit attached thereto, certified to by we do, that the preliminary injunction was any officer authorized to take acknowledgments properly issued, under the theory that plainof conveyances, setting forth that he (or the tiff's property rights have been invaded it is firm or corporation of which he is a member) unnecessary to discuss the question of “unis the exclusive owner, or agent of the owner | fair competition." of such trade-mark or name.”

The order appealed from is aflirmed. These provisions seem to be clear and un

We concur: TYLER, P. J.; KERRIambiguous. By them it is provided that ownership of a trade-name may be acquired, ei

GAN, J. ther by a prior adoption within or without the state, or by registering such name with

Opinion of Supreme Court in Bank the secretary of state. Here plaintiffs have

Denying Hearing. done both. The statute also expressly pro PER CURIAM. The application for an vides that such ownership may be trans- order that the above-entitled cause be heard ferred. The rights thus acquired under the and determined by this court after judgment statute are property rights and may be pro- by the District Court of Appeal is denied. tected by injunction from invasion. Spieker In so doing we do not at this time either apv. Lash, 102 Cal. 38, 36 Pac. 362; Italian- prove or disapprove that portion of the opinSwiss Colony v. I. Vineyard Co., 158 Cal. ion which holds that a registered trade-mark 252, 110 Pac. 913, 32 L. R. A. (N. S.) 439. or trade-name can be lawfully transferred,

[2] Appellant's principal contention on this so as to separate it from the business or combranch of the case is that the acquisition by modity to which it pertains. That holding plaintiffs of the name "Mary Elizabeth Tea was not necessary to the decision, because Room" conveyed nothing, as the right to an the order appealed from is sufficiently supexclusive use of a name is postulated on the ported by the showing made in the trial user of the name in connection with some court in support of the claim of unfair combusiness, and that since plaintiffs did not petition. purchase the business from Harris and wife, nor continue its use, but only purchased the LENNON, WASTE, LAWLOR, JJ., and name, that plaintiffs are not entitled to the MYERS, Justice pro tem., concur.

(209 P.)

single lump sum, the jurors' answers to special GRIFFEY et al. v. PACIFIC ELECTRIC interrogatories may be looked to, in order to RY, CO. (Civ. 3853.)

| determine how they arrived at the amount of

their general verdict. (District Court of Appeal, Second District, Di

vision 2, California. July 11, 1922. Hear-8. Death Ow85-Damages limited to pecuniary ing Denied by Supreme Court Sept. 7, 1922.) loss to beneficiaries.

The damages recoverable under Code Civ. 1. Appeal and error 874(5)-Authority to Proc. § 377, for wrongful death, are limited change judgment not reviewable on appeal strictly to pecuniary loss to the beneficiaries from grant of new trial.

caused by the death. Right of court, on defendant's motion to vacate joint judgment for plaintiffs and enter| 9. Death Om58(2) - Evidence of competency judgment for each of different amounts, aggre-l and disposition of deceased adult child to aid gating the amount of the first, cannot be con- parents necessary. sidered on appeal from order granting new trial To show damages to a parent from death for excessive damages, any more than it could of an adult child, by way of deprivation of dihave been considered on the motion.

rect financial assistance or services, there must 2. New trial fm 163(2) - Judgment falls on

be at least some evidence tending to show comgranting of new trial.

| petency and disposition of the child to render Whatever judgment is legally in force prior

service to, or contribute to the aid of, the par

ent. to order for new trial falls with the order. 3. Appeal and error On933(4)-Relative to 10. Death 95(3)-Expectancy of life of parpresumption, statement in order that new

ent considered in fixing damages for death of trial was granted for excessive damages tan adult child. tamount to specification of insufficiency of In estimating, as an element of a parent's evidence,

damages from wrongful death of an adult child, Statement in order for new trial, that it is the present value of financial assistance or made on the ground of “excessive damages," is service which could reasonably have been extantamount to specification that it is granted pected, the life expectancy of the parent, and on insufficiency of the evidence to sustain the not of the child, is to be considered. verdict, obviating the presumption, otherwise obtaining on appeal, under Code Civ. Proc. 8 11. Death 86(1)-Accommodations furnish657, as amended by St. 1919, p. 141, that the ed by parent considered in estimating damorder was not based on that ground.

ages from death of adult child.

In estimating the pecuniary value to a par4. Death 97-Award of damages not exemptent of services of an adult child as an element from interference by trial judge.

of damages from the child's wrongful death, Provision of Code Ciy Proc. § 377, that, in the value of board, lodging, and other accomaction for death by wrongful act, "such dam- modations furnished to the child by the parent, ages may be given as under all the circumstanc- with whom the child was living, is to be cones of the case may be just," does not make sidered. amount of award exclusively a matter for the jury, with which the trial judge may not inter-12. Death E 88-Only "pecuniary" value of de. fere.

I ceased's society recoverable as damages, 5. Appeal and error 979(5)-Grant of new It is only the “pecuniary" value of de

trial for excessive damages disturbed only ceased's society, comfort, and protection which for plain abuse of discretion.

his beneficiaries can recover as an element of Order granting new trial on the ground of

damages for his wrongful death. excessive damages will be disturbed only in case

[Ed. Note.-For other definitions, see Words it clearly appears that the trial judge abused

and Phrases, First and Second Series, Pecunhis discretion; every intendment being indulged

iary.] in support of his action.

| 13. New trial C 76(4)-No abuse of discretion 6. Appeal and error 1015(3)-Weight of un- shown in grant for excessive damages.

contradicted evidence of damages for trial Evidence in action by husband, father, and judge on motion for now trial.

mother for wrongful death of adult woman held Though there be no conflict in the evidence to show no abuse of discretion in granting a as to the nature and extent of plaintiffs' pe- new trial on the ground of excessive damages. cuniary losses from deceased's death, the probative force and effect is ultimately for the trial 14. New trial Om76(4)–Properly granted in judge's determination on motion for new trial.

death action, where loss of any heir is as

sessed too high, 7. Appeal and error 837(7)-Answers to

The heirs having but a single joint cause of special interrogatories looked to in determin-action for wrongful death, and the verdict being how verdict was arrived at.

ing required to be for a single lump sum, it is Though, in action for death of an adult by properly set aside and new trial granted, where wrongful act, Code Civ. Proc. $ 377, gives the it appears from answers to special interrogabeirs a single joint cause of action, and the tories that an excessive award was made in as. verdict, if against defendant, should be for a 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 Angeless the court possessed the right to vacate the County; Charles Monroe, Judge.

| first judgment and cause the second to be

entered was not a question which could be Action by Roy B. Griffey and others

agitated on the motion for a new trial, and against the Pacific Electric Railway Com

it is not a matter which can be considered pany. , From an order granting defendant a

on this appeal from the order granting the new trial, plaintiffs appeal. Atfirmed.

new trial. Whichever judgment was legally Cooper, Collings & Shreve, of Los Angeles, in force prior to the time when the new trial for appellants.

was ordered fell with the granting of the Frank Karr, R. C. Gortner, and W. R. new trial. Millar, all of Los Angeles, for respondent. [3] Because the order granting a new trial

did not state in so many words that it was FINLAYSON. P. J. This is an appeal granted upon the ground of the insufficiency from an order granting defendant a new trial

of the evidence to sustain the verdict, it is in an action wherein plaintiffs, as the heirs of

claimed that it must be presumed, on this apGladys Rhodes Griffey, a married woman,

peal, that the evidence was sufficient to sussue defendant, under section 377 of the Code

tain the verdict for the full amount thereof Civil Procedure, to recover damages for

of-$10,000. This claim is based upon that the death of Mrs. Griffey, alleged to have

provision of section 657 of the Code of Civil been caused by the negligence of defendant.

Procedure which, since the amendment of The plaintiff Roy Griffey is the surviving 1919 (St. 1919, p. 141), reads: husband, and the plaintiff's Fred Rhodes and “When a new trial is granted upon the ground Margaret Rhodes are, respectively, the fa- of insufficiency of the evidence to sustain the ther and mother, of the deceased. The jury verdict, the order 'shall so specify; otherwise, returned a general verdict in favor of plain- on appeal from such order, it will be presumed tiffs for the sum of $10,000, and likewise that the order was not based upon that made answer to certain special interrogato-ground," ries which bad been submitted to them. The questions submitted and the jury's answers By subdivision 5 of section 657, "excessive thereto were as follows:

damages, appearing to have been given un"(1) Q. How much pecuniary damage, if any,

der the influence of passion or prejudice," is do you find that Roy B. Griffey suffered by rea

ex-made one of the grounds for a new trial, son of the death of his wife? A. One thousand and by subdivision 6 “insufficiency of the evi[dollars).

dence to justify the verdict" is made another "(2) Q. How much pecuniary damage, if any, ground for a new trial. An order granting do you find that Fred Rhodes suffered by rea- a new trial on the ground of “excessive damson of the death of the deceased? A. Eight ages" necessarily is made under one or the thousand (dollars).

other of these two subdivisions. Whether “(3) Q. How much pecuniary damage, if any,

the order in the instant case was made under do you find that Margaret Rhodes suffered by reason of the death of the deceased? A. One

subdivision 6—that is, whether it was made thousand (dollars]."

on the ground that, irrespective of the in

fluence 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 fuenced by passion and prejudice, in either verdict only. Within 24 hours after the case the statement in the order that it is rendition of the verdict, the trial court, on made on the ground of "excessive damages" defendant's motion, vacated that judgment is tantamount to a specification that the new and entered a judgment against defendant trial was granted on the ground of the inwhich, after reciting the general verdict, the sufficiency of the evidence to sustain a verspecial interrogatories, and the jury's an- dict for $10,000. If a new trial on the ground swers thereto, adjudged that the husband of of "excessive damages" be granted under the the deceased, Roy B. Griffey, recover of de sixth subdivision, it necessarily is granted fendant the sum of $1,000, that the father, on the ground of the insufficiency of the eviFred Rhodes, recover the sum of $8,000, and dence to sustain a verdict for the amount that the mother, Margaret Rhodes, recover awarded by the jury. If it be granted unoi defendant the sum of $1,000. Thereafter, der the fifth subdivision, it is equally true and in due time, defendant moved for a new that it is granted on the ground of the intrial upon all of the statutory grounds. The sufficiency of the evidence to sustain a verorder granting the motion states that it is dict for an amount as great as that returned granted "on the ground of excessive dam- by the jury; for, as our Supreme Court has ages."

pointed out, to say that a verdict has been [1, 2] It is objected that the court had no influenced by passion or prejudice is but anauthority to set aside the first and direct other way of saying that it exceeds any the entry of the second judgment. Whether amount justitied 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 y. 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. Şutthe claim that on this appeal we are pre-ter Street Ry. Co., supra. And even though cluded from determining whether the trial there be no conflict in the evidence as to the court abused its discretion in granting a new nature and extent of the pecuniary losses trial on the ground that the damages are ex- suffered by the plaintiffs, nevertheless the cessive,

probative force and effect of the evidence [4] Because it is declared by section 377 | upon that phase of the case is ultimately for that, in actions of this character, "such dam- the determination of the judge of the trial ages may be given as under all the circum- court upon the hearing of the motion for a stances of the case may be just," it is claimed new trial. Meinberg v. Jordan, supra. that the amount of the award is exclusively [7] That the evidence in this case wara matter for the jury, with which the trial ranted the court in granting a new trial is judge may not interfere. There is not even clearly apparent. We know from the anthe faintest semblance of merit in this point, swers to the special interrogatories that the There is no reason to believe that the Leg- jury assessed the father's pecuniary loss at islature intended to place cases of this char- $8,000, the mother's at $1,000, and the husacter in a special class with respect to the band's at $1,000. It is true that in this class right of the trial court to grant a new trial of cases the Code gives to the heirs a single upon any of the grounds enumerated in sec-joint cause of action, and that the verdict, tion 657 of the Code of Civil Procedure. if against the defendant, should be for a The right of the trial judge to grant a new single lump sum (Robinson v. Western States trial in this class of cases when he deems Gas Co., 184 Cal. 401, 194 Pac. 39); but this the damages awarded by the jury to be ex is no reason why we may not look to the jucessive has received the sanction of our Su-rors' answers to the special interrogatories preme Court in a number of cases. See, for in order to determine how they arrived at a example, Harrison v. Sutter Street Ky. Co., total of $10,000. 116 Cal. 156, 47 Pac. 1019. In Bond v. United Nowhere in the record can we tind any. Railroads, 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 "With regard to the danger of excessive ver

| death of Mrs. Gritfey was the evidence givdicts, * * * we can only say that the reme- en by the father, the plaintiff Fred Rhodes, dy is practically committed entirely to the judge whose testimony in that regard, stated in who presides at the trial in the court below. narrative form, is substantially as follows: If he does his duty, he will carefully weigh the evidence himself, and will not allow a verdict

I am 58 years old. I have lived in Los Anto stand for its full amount, if he believes it geles county a year. I did not do any business gives more damages than the pecuniary loss here until last February, when I went into a that it may be reasonably supposed the plain

variety store on American avenue in Long tiff will actually suffer by being deprived of the Beach. Gladys Rhodes Griffey was my daughservices. earnings. society, comfort. and pro- ter. She was married to the plaintiff Roy tection of the child. * . Juries should B. Griffey. My wife, the plaintiff Margaret be insistently cautioned not to allow compen

| Rhodes, and I separated about 15 years ago. sation for the sorrow and distress which al

Sorrow and distress which al. At the time of the accident my daughter was ways ensues from such a death, nor for a pe- living with me. Her husband was a salesman cuniary loss which is remote or conjectural in for the Cadillac automobile people. My daughthe particular case. The trial court should be ter was 24 years old at that time. She had vigilant to set aside verdicts where there is rea- been married 4 years. She had no children. son to believe this has been done, or that pas. She was not employed at the time of the accision, prejudice, or sympathy has influenced the dent. She was keeping house for me. Her jury to give more than the facts reasonably

husband, who was the agent for the Cadillac warrant."

automobile at Santa Ana, was always at my

house in Long Beach on Sundays. He came to [5,6] For the foregoing reasons, the order

the house for Saturday night and Sunday. Exgranting a new trial must be affirmed unless

cept that she kept house for me, my daughter

had never worked. Oh, yes; she did some we can say that the trial court abused its

moving picture work once at a studio, but she discretion. When the action of a trial judge

did not work there regularly; they called her in granting a new trial on the ground of

at times. She had a friend that had a studio, excessive damages comes before an appel- and that friend called her occasionally, and she late court, the order will not be reversed, would go over and appear in pictures and then

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