Hailey v. Brooks

• Decision Date: 23 December 1916
• Docket Number: (No. 8671.)
• Citation: 191 S.W. 781
• Parties: HAILEY v. BROOKS et al.
• Court: Texas Court of Appeals

191 S.W. 781

HAILEY v. BROOKS et al.

(No. 8671.)

Court of Civil Appeals of Texas. Ft. Worth.

December 23, 1916.

Appeal from District Court, Taylor County.

Injunction by E. E. Hailey against J. L. Brooks and others. From an order denying the writ, petitioner appeals. Order set aside, and cause remanded.

Kirby & King, of Abilene, for appellant. Ben L. Cox, of Abilene, for appellees.

CONNER, C. J.

This appeal is from an order of the district judge of the Forty-Second judicial district denying an injunction sought in the petition of E. E. Hailey. The petition complains of J. L. Brooks, superintendent, and A. H. Roberts, principal, of the Abilene Public Free Schools, and of others alleged to be trustees of the district of said schools. It is charged, in substance, that the petitioner, Hailey, owned and conducted a small mercantile establishment adjoining the Abilene Central Ward and the Abilene High School Buildings; that he therein offered for sale to the pupils and children attending the schools mentioned various and sundry school supplies, such as pens, pencils, tablets, and ink, and in addition thereto sold to such students "out of good and wholesome material" hamburgers composed of bread and mashed meats, properly cooked, as also other little articles of food and confections, all of which are alleged to be wholesome and harmless. It is further alleged that the business had been conducted for some time, and that the plaintiff, by careful attention, had built up a business of the net profit to him of $30 a week. He further alleges that in the conduct of his business he maintained orderly, decent and respectable premises; that nothing was permitted in and about his premises that would in any way demoralize the school children; that the lunches and wares sold to such children were of the reasonable value for which he sold them, and as good as could be had for the money at any other place in Abilene; and that such things were necessities under the circumstances; notwithstanding all of which, that on a date named in October of the present year, the said superintendent and principal, joined by said trustees —

"each and all of them maliciously, unlawfully and willfully, and without just cause, and with the intention then and there of destroying the business owned and operated by this plaintiff, and with no other purpose in view, conspired together and did enter upon a course of action, which was put into effect by the said superintendent, principal, and trustees as aforesaid, to the end that a rule or order was promulgated by the authorities aforesaid that any and all children attending the Abilene public schools, and particularly the Abilene High School and the Abilene Central Ward School, were prohibited from dealing and trading with this plaintiff, and were personally, publicly, collectively, and separately warned and commanded not to trade with this plaintiff, and upon penalty that they would be punished by the authorities, and, if persisted in, that they would be expelled from school."

It is further charged:

"That the purpose of this act and order by the defendants was to inure to the benefit of an establishment of a like kind which had, on or about that time, been opened in the basement of one of the school buildings, and which said establishment was dealing in the same character of wares, merchandise, and food as this plaintiff, and which said establishment this plaintiff charges was owned and controlled by the defendant J. L. Brooks and A. H. Roberts, and other members of the faculty of the Abilene High School, the names of which are unknown to the plaintiff; that by such order, prohibiting children and patrons of this plaintiff from dealing and trading with him, it was intended, and so stated by these defendants herein, that the purpose of the same was to enforce the children to trade with the establishment in the basement of the public school building, to the end that persons other than this plaintiff would profit thereby, and to the end that this plaintiff would be driven from his location and his business destroyed; that defendants and their agents and servants stated publicly that they would put plaintiff out of business, and that they took the action complained of for no other purpose."

It is further alleged that since the order complained of went into effect, the patronage of his business has absolutely ceased through fear on the children's part of punishment, and that as a result his said business has been ruined and destroyed. It is charged that said order was unreasonable and without the scope of defendants' authority, and because it had been promulgated with the avowed purpose and intention to destroy the plaintiff's business, and had been issued maliciously and willfully, and he prays for actual and exemplary damages in the sum of $5,030.

The petition was duly verified by the plaintiff, Hailey, but on presentation to the judge of said district court, his prayer for the issuance of an injunction was denied; hence the appeal, as stated in the beginning.

Generally speaking, it must be said that the...