Plaza Co. v. White

• Decision Date: 04 March 1942
• Docket Number: No. 11150.,11150.
• Citation: 160 S.W.2d 312
• Parties: PLAZA CO. v. WHITE et al.
• Court: Texas Court of Appeals

160 S.W.2d 312

PLAZA CO. v. WHITE et al.

No. 11150.

Court of Civil Appeals of Texas. San Antonio.

March 4, 1942.

Appeal from District Court, Thirty-Seventh District, Bexar County; Raymond Edwards, Judge.

Action by the Plaza Company against A. C. White and others for a perpetual injunction restraining defendants from using the word "Plaza" in the name of a hotel operated by defendant in San Antonio, Texas. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Dodson, Ezell & Duke, of San Antonio, for appellant.

Leo Brewer, and William E. Remy, both of San Antonio, for appellees.

NORVELL, Justice.

This is an "unfair competition" case. The Plaza Company, appellant, asserts that the trial court erred in refusing to issue a perpetual injunction restraining appellees, A. C. White (also known as Jack White) and White Hotel Company, from using the Word "Plaza" in the name of a hotel operated by appellees in San Antonio, Texas, under the name of "White-Plaza Hotel". Appellant contends that the word "Plaza" had acquired a secondary meaning identifying "The Plaza Hotel," which is owned by appellant and also situated in San Antonio, Texas.

Trial below was to the court. Findings of fact and conclusions of law were requested and filed. Many of appellant's points complain of the failure of the trial court to make certain requested findings.

Upon proper request the trial judge must find upon every material issue raised by the evidence. State v. Pease, Tex.Civ.App., 147 S.W. 649. He is not, however, required to make findings on evidentiary as distinguished from controlling matters. San Antonio & A. P. R. Co. v. Mullan, Tex.Civ.App., 186 S.W. 782. There is a well-recognized distinction between the review of asserted errors in an appellate court in connection with the submission of special issues to a jury and the review of a case upon findings and conclusions of the trial court. See Greer v. Thaman, Tex.Com.App., 55 S.W.2d 519, a jury case, and Garcia v. State, Tex.Civ. App., 274 S.W. 319, a non-jury case. In the latter case it was held that the failure of the trial court to file findings in accordance with the appellant's theory of the case was not reversible error. Obviously no error is disclosed by the refusal of the trial court to make a particular requested additional finding which would conflict with an original finding theretofore made by the court and supported by the evidence. Brady v. Garrett, Tex.Civ.App., 66 S.W.2d 502. No error is presented by the action of a trial court in refusing to find on an immaterial issue or to make additional findings when facts theretofore found are adequate and fairly cover the case. Consolidated Flour Mills Co. v. Holbrook, Tex. Civ. App., 66 S.W.2d 376; Austin v. Freestone County, Tex.Civ.App., 288 S.W. 870.

Upon application of the rules above stated, we overrule appellant's points relating to its requests for additional findings.

Appellant's remaining points are divisible into two categories, those attacking the findings made by the court and those asserting that appellant was entitled to an injunction as a matter of law.

For the purpose of discussion of these points, we make a brief statement of the facts taken from the most part from the trial court's findings.

The appellant is the owner of a hotel situated at the corner of St. Mary's and Villita Streets, San Antonio, Texas, which is known as "The Plaza Hotel." From 1927 until August 1, 1940, appellee, Jack White, was employed by appellant as the manager of said hotel. White is and has been, since 1929, the operator of The Plaza Hotel in Corpus Christi, holding the controlling interest in the corporation which owns said hotel.

White also owns all the capital stock of the White-Plaza Hotel Company, which holds a long term lease upon the White-Plaza Hotel situated in Dallas, Texas. White is and has been, since January 1, 1939, the operator of the White-Plaza Hotel at Dallas.

While White was manager of the Plaza Hotel in San Antonio and the operater of the Plaza Hotel at Corpus Christi and the White-Plaza Hotel at Dallas, said hotels were operated as affiliates, all being largely under the control and direction of Jack White.

While White was manager of The Plaza Hotel at San Antonio his name was prominently associated with the name of the hotel in its advertising.

On August 1, 1940, appellant discharged White as manager of its hotel. In March, 1941, White organized a corporation known as the White Hotel Company, which he now controls. In April this company took over the operation of the Lanier Hotel, situated at the corner of Travis and North St. Mary's Street. The name of this hotel was changed to "White-Plaza Hotel" and in May the signs outside the hotel building were changed accordingly.

The trial court found that appellees did not adopt the name "White-Plaza Hotel" for the fraudulent purpose of deceiving the public by causing the members thereof to believe they were patronizing the Plaza Hotel in San Antonio when patronizing the White-Plaza Hotel, but rather because of the fact that in advertising and purchasing supplies a substantial saving could be realized by White in operating the Dallas, San Antonio and Corpus Christi hotels, under similar names.

The trial court found that the word "plaza" was a word in common and general use throughout the United States and especially in San Antonio, Texas; that there were numerous businesses in San Antonio, whose trade name included the word "plaza." The court refused to find that the word "plaza" alone had acquired a secondary meaning designating appellant's hotel, but did find that the name "The Plaza Hotel" through long use in the City of San Antonio, Texas, had acquired a secondary meaning as a hotel owned and operated...