Bozeman v. Morrow, 2523.

• Decision Date: 08 January 1931
• Docket Number: No. 2523.,2523.
• Citation: 34 S.W.2d 654
• Parties: BOZEMAN et al. v. MORROW et al.
• Court: Texas Court of Appeals

34 S.W.2d 654

BOZEMAN et al. v. MORROW et al.

No. 2523.

Court of Civil Appeals of Texas. El Paso.

January 8, 1931.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by L. E. L. Bozeman and others against J. Walker Morrow and others, constituting the Board of Trustees of the Public Schools of the City of El Paso, and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Vowell & Vowell, of El Paso, for appellants.

Breedlove Smith, of El Paso, for appellees.

WALTHALL, J.

L. E. L. Bozeman and others, plaintiffs, doing a mercantile business in the city of El Paso, brought this suit against defendants J. Walker Morrow and others, constituting the board of trustees of the public schools of the city of El Paso, the superintendent of the city of El Paso public schools, and the principal of one of the public schools of the city of El Paso, known and designated as Austin school. Plaintiffs allege that they are residents and taxpayers in the city of El Paso; that they own and for a long time have conducted a mercantile establishment adjoining Austin School; that they offer for sale, to the pupils attending said school, school supplies, such as pens, pencils, ink, tablets, etc., articles of food and confections, and that they have built up a business at said place that would net them a profit had it not been for the acts of defendants of which they complain; they allege that they have at all times maintained good order, etc.; that their school supplies and wares sold and offered for sale to the pupils were of the reasonable value for which they were sold and offered for sale; that they incurred great expense in maintaining and operating said business in paying rent, taxes, etc.; that the acts of defendants complained of are unjust unfair competitions to their business, and, if continued, will result in great loss to plaintiffs and to their bankruptcy.

Plaintiffs allege that defendants unlawfully. willfully, and without just cause, and with the intention of destroying plaintiffs' said business, began conducting in the Austin school building a mercantile establishment for the purpose of selling and dispensing among the pupils of said school similar articles which plaintiffs were selling and attempting to sell in violation of the Texas statutes, with the result that plaintiffs are unable to sell to pupils said school supplies.

The petition charges a conspiracy on the part of defendants to establish and that they established a confectionary store in said school building and made large sales of confections to said pupils, and that a large part of such sales these plaintiffs could have made had defendants not established such business in competition to plaintiffs; that defendants are not compelled to pay taxes, rents, or other usual expenses as plaintiffs are required to pay; that said building should be used for school purposes and not for a mercantile business for profit; that said mercantile business is conducted under the control of the principal of the Austin school, and put into effect by the superintendent and trustees that the pupils are prohibited, under penalty, from patronizing plaintiffs; and that by reason thereof plaintiffs have sustained the damages complained of. Plaintiffs pray for damages and that defendants be enjoined from maintaining a mercantile establishment in the Austin school building, and enjoined from ordering, directing, encouraging, or suggesting to pupils not to trade or buy with plaintiffs.

Defendants answer by general denial; they specially deny any conspiracy; deny that they have prohibited any pupil from dealing with plaintiffs; they specially allege that in 1922 the board of trustees of the independent school district of the city of El Paso authorized and permitted the principal of the Austin school, together with the Austin Parent Teachers' Association, to establish and maintain a cafeteria in said school; that said association is a voluntary association of the parents and pupils attending said Austin school, and the principal and teachers of said school, and that the principal of said school is an ex officio member thereof; that the purpose of said Austin Parent Teachers' Association and said school authorities in the operation of the cafeteria was and is to furnish wholesome food and balanced meals to the pupils attending that school at reasonable prices without profit to any person or organization; that said association established the cafeteria and has ever since been maintained and operated in which meals and desserts are furnished, stating same; that it is necessary for the health, safety, morals, and proper discipline of the pupils that they be required to stay upon the school grounds from their entrance until their final discharge, and to effect same the board of trustees and school officials have passed a rule that a pupil, except by written permission of the parents, may not leave the school grounds for any purpose during school hours or noon recess; that under the management of the school principal, and in connection with the management of the cafeteria, a small stock of pencils, writing papers, composition books, pens, pen points, and erasers are sold to pupils at customary prices, and only in emergencies when such things become exhausted during school hours, and the proceeds placed in the cafeteria funds, and without profit, and without intended competition with any one.

The case was tried to the court. The court found the facts as follows:

"Plaintiffs are merchants engaged in business in proximity to the Austin Junior High School in the City of El Paso; handling candies, school supplies, ice-cream, cakes, and various confections and soft drinks. The defendants are the Board of Trustees of the Independent School District of the City of El Paso, the principal, and Superintendent of Public Schools.

"In the year 1922 there commenced to be operated in connection with said High School a cafeteria, and same has been operated ever since. This cafeteria sells lunches to the pupils attending said Austin High School, and in connection therewith desserts at or about the time of the luncheon, and selected candies.

"In connection therewith there is also sold such school supplies as tablets, pencils, pens and so forth. The purpose of the sale of these school supplies is to meet emergencies, and not for the ordinary use of the pupils of the school. The proceeds of the sale of school supplies go to the cafeteria fund. The original equipment for the cafeteria was purchased out of school funds. It has supported itself since. A lady is employed to superintend the cafeteria, and her salary is paid from the fund arising from the operation of the cafeteria, as are the supplies and labor. The net profit arising from the operation of the cafeteria, the sale of school supplies and candies, is negligible. The cafeteria is conducted in two rooms of the school building. The food and desserts supplied are sold at moderate prices, and are good and wholesome for growing children.

"With the consent and acquiescence of the School Board the teachers of Austin High School have promulgated and enforced a rule substantially as follows: The pupils are forbidden from leaving the school grounds at noon hour unless they have the written consent of their parents. The object and purpose of this rule is the safe-guarding of the health and morals of the pupils of the school. The rule in question reasonably subserves the purposes for which it was promulgated, and is enforced. It would be very difficult, if not impossible, to enforce this...