York v. Yzaguairre

• Decision Date: 17 December 1902
• Citation: 71 S.W. 563
• Parties: YORK v. YZAGUAIRRE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 563

YORK v. YZAGUAIRRE.^*

Court of Civil Appeals of Texas.

December 17, 1902.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Suit by S. M. York against E. Yzaguairre to restrain the defendant from keeping his barber shop open Sunday. From a judgment denying plaintiff an injunction, he appeals. Affirmed. Motion for rehearing overruled.

Chas. W. Ogden and W. H. Lipscomb, for appellant. I. C. Baker, for appellee.

FLY, J.

This is an application for injunction, sought by appellant to restrain appellee from keeping his barber shop open on Sunday in the city of San Antonio, and from permitting the general public from having access thereto for the purpose of having work done, and from performing any labor in the barber shop or requiring any of his employés to work in violation of article 196 of the Penal Code of Texas. The district court denied the injunction.

Appellant alleged that he and appellee were barbers in the city of San Antonio, that both employed a number of journeymen barbers, that appellant closes his shop on Sunday and does not labor on that day, and appellee keeps his shop open. The petition continues: "That defendant, who is, as hereinafter alleged, plaintiff's competitor in business for the patronage of the general public, does not now, has not in the past, and does not in the future intend to, pursue his said trade and occupation and conduct his said barber shop in a lawful manner, in this: that the defendant does now, has for some time past, and intends in the future, on each and every Sunday, to solicit and receive in his said barber shop the patronage of the general public, permitting the public to have access to his place of business, and himself to unlawfully perform labor as a barber, and, as proprietor of the barber shop, to unlawfully permit and encourage his employés, workmen, and apprentices to labor in the defendant's said barber shop on each and every Sunday. That many persons, to the number of about 60, for whose patronage plaintiff and the defendant are competitors, enter the defendant's said barber shop on each and every Sunday, and for such persons the defendant, and his employés, workmen, and apprentices, perform labor as barbers for pay; and the said defendant does now, has for some time past, and intends in the future to, pursue his said trade and occupation and conduct his said barber shop on each and every Sunday in the same manner as the same is conducted on each and every other day in the week. That the defendant, by pursuing his said trade and occupation, and by conducting his said barber shop in the unlawful manner as hereinbefore alleged, subjects this plaintiff, while in the pursuit, in a lawful manner, of his trade and occupation, and while conducting his barber shop in a lawful manner, to unlawful and unfair competition, to the great and irreparable injury of the plaintiff, in this: that there are many persons, for whose patronage plaintiff and the defendant are competitors, who prefer, as a matter of convenience, to give all of their patronage to and become regular customers of a barber shop which is accessible to them, and wherein they can have tonsorial work done for them, on Sunday, and who, for that reason, patronize the defendant's barber shop in preference to that of this plaintiff, and for whose patronage this plaintiff is by the defendant, and by the unlawful manner in which the defendant is pursuing his said trade and occupation and conducting his said barber shop, deprived of the opportunity to compete, whereas, if the defendant pursued his said trade and occupation and conducted his said barber shop in a lawful manner, as does this plaintiff, then this plaintiff would have an opportunity to compete with the defendant for the patronage of all such persons, on fair and equal terms, as is plaintiff's lawful right to do; and, further, in this: that the work unlawfully done, as hereinbefore alleged, in defendant's barber shop on each and every Sunday, diminishes to that extent the need and demand for the services of a barber, which the general public otherwise would have, on the other days of the week upon which said work can lawfully be done, and thus this plaintiff is by the defendant, and by the unlawful manner in which the defendant is pursuing his said trade and occupation, and by the unlawful manner in which the defendant is conducting his said barber shop, as hereinbefore alleged, deprived of the opportunity to compete, on fair and equal terms with the defendant, for such portion of the patronage of the general public as is secured by the defendant by keeping his said barber shop open on Sunday, as hereinbefore alleged, whereby this plaintiff is by the defendant, and by the unlawful manner in which said defendant is pursuing his said trade and occupation and is conducting his said barber shop, deprived of the fundamental right and privilege, which this plaintiff is entitled to and...