Rogers v. Broughton

• Decision Date: 16 March 1955
• Docket Number: No. 12811,12811
• Citation: 277 S.W.2d 121
• Parties: S. J. ROGERS et al., Appellants, v. Jerome W. BROUGHTON, Appellee.
• Court: Texas Court of Appeals

Page 121

277 S.W.2d 121

S. J. ROGERS et al., Appellants, v. Jerome W. BROUGHTON, Appellee.

No. 12811.

Court of Civil Appeals of Texas, San Antonio.

March 16, 1955.

Rehearing Denied April 13, 1955.

Keith, Mehaffy & McNicholas, Beaumont, Hyde, Barber & Shireman, Corpus Christi, for appellants.

Charles G. Lyman, Corpus Christi, for appellee.

NORVELL, Justice.

Appellants, S. J. Rogers and N. Jay Rogers, doing business as Texas State Optical Company, brought this suit against Jerome W. Broughton, seeking to restrain appellee from using the trade name 'Texas Optical' in connection with his business. A prior and similar suit arose from appellee's operations in Waco, Texas. See, Rogers v. Broughton, Tex.Civ.App., 250 S.W.2d 606.

In the present case, the following special issue was submitted to the jury and answered in the negative viz.:

'Do you find from a preponderance of the evidence that a person with such reasonable care and observation as the public is capable of using and may be expected to exercise, would mistake or confuse defendant, Dr. Broughton's place of business known as Texas Optical in Corpus Christi, Texas, as being a place of business of Texas State Optical and deal with Texas Optical when such person intended to deal with Texas State Optical?'

Judgment for appellee was accordingly rendered, and appellants present the case here upon two points of error asserting that judgment in their favor should have been rendered non obstante veredicto and, in the alternative, that the judgment should be reversed because of improper jury argument.

It appears that appellants reside in Beaumont and are doctors of optometry. They conduct a retail optical business in some twenty-nine cities in Texas. In all but two of these cities they operate under the name and style of Texas State Optical Company. They opened a place of business in downtown Corpus Christi in 1937 and advertised extensively in order to build up good will for their trade name. During the time appellants have been operating in Corpus Christi they have filled some 150,000 prescriptions and spent approximately $100,000 in advertising their trade name, Texas State Optical Company. In 1953 Dr. Broughton opened a competing firm at a place known as Six Points, which is located a few miles from downtown Corpus Christi. He designated his business as 'Texas Optical' and displayed a sign using these words upon a background map of the State of Texas. There was testimony as to confusion and misunderstandings in regard to the identity of the competing firms, misdelivered mail and the like. It also appears that some people were under the impression that the Six Points establishment of Dr. Broughton, the Texas Optical, was a branch of the older firm located downtown-the Texas State Optical Company.

The evidence adduced by appellants would have supported a finding in their favor upon the issue of confusion. There was, however, testimony to the contrary and it can not be said upon the record that reasonable minds could not differ upon the issue. The trial court correctly overruled appellants' motion for judgment non obstante veredicto. King v. King, 150 Tex. 662, 244 S.W.2d 660; Rogers v. Broughton, Tex.Civ.App., 250 S.W.2d 606.

As above indicated, it was essential to appellants' cause of action that they establish public familiarity with their trade neme. This necessary proof disclosed the expenditures of large sums of money for advertising purposes and demonstrated that appellants had built up and were operating an extensive optical business. The transcript contains three bills of exceptions. From the first two it appeared that appellee's attorney in his argument to the jury designated the appellants as the 'Rogers combine.' He likewise referred to appellant S. J. Rogers as a 'strong arm man.' Neither statement was objected to and there was some evidence of an altercation between Dr. S. J. Rogers and Dr. Broughton. In the absence of objection, these two bills present no reversible error.

The third bill concededly presents a more serious questions. Appellee's counsel referred to appellants as 'the colossus of Beaumont, the great Rogers Brothers.' This time an objection was made, and appellee's counsel, instead of withdrawing the improper remark or affording the judge an opportunity to rule upon the objection, continued his argument by stating, 'I say that's what the evidence shows. They have 29 or 30 places in Texas. They opened up in Nueces County, and the evidence shows they spent over $100,000.00 in advertising, and counsel objected when I tried to show what they have spent state-wide. I say colossus of Beaumont, * * *.' The objection was renewed and this time the judge admonished counsel by saying, 'Counsel, that's enough.' Whereupon appellee's counsel continued in a rather grumbling but not necessarily improper fashion by saying that, 'They (appellants) adopt the attitude they can do anything they want to, they can upset anybody else's apple cart they want to, but nobody else can do it but them, because they are the Rogers.' These last remarks evidently had some allusion to the operations of the appellants in Houston. The bill does not show that appellants requested the trial judge to instruct the jury not to consider the reference of appellee's counsel to the 'Beaumont colossus' or any other remarks deemed improper.

Prior to the adoption of the 1941 Rules of Civil Procedure, the rule generally followed in determining whether an improper argument constituted grounds for reversal was that set forth in Chaplin v. Putnam Supply Company, 124 Tex. 247, 76 S.W.2d 467, 470, wherein it was said that 'when improper argument has been made, the adverse complaining party is entitled to a reversal of the judgment, as a matter of law, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it reasonably appears no prejudice resulted.'

After the adoption of the rules, various Courts of Civil Appeals construed the 'reasonable doubt rule' as still being in effect, holding inferentially that Rule 434 was inapplicable to an improper jury argument. This was probably due in part to the circumstance that New Rule No. 327 was adopted relating specially to jury misconduct, and old Rule 62a, from which Rule 434 was largely taken, had not been construed as applying to improper argument. Texas...