Appellees, California Products, Inc., and Charles H. Davis, hereinafter called California Products and Davis, instituted this suit against appellant, Puretex Lemon Juice, Inc., hereinafter called Puretex, seeking a declaratory judgment and also a construction of the judgment of the court in a former suit, being Cause No. 1860, in the 107th District Court of Willacy County, wherein an agreed judgment was rendered in favor of appellant and against appellees. The case was tried to a jury and, after a finding upon two special issues, judgment was rendered in favor of appellees and against appellant. Appellant presented its motion for a new trial, which was overruled, and then duly perfected this appeal.
Appellees alleged that on the 3rd day of June, 1952, the 107th District Court of Willacy County, Texas, entered a judgment, by the terms of which they were enjoined and ordered to cease and desist from marketing or selling lemon and lime juice in bottles which resemble in appearance the bottles used by appellant. They then alleged that the bottle which they proposed making and using in the future, which was only shown on a blueprint and in the form of a plastic model at the time of the trial, in no way resembled in appearance the bottle of appellant. They did not allege or offer any proof whatever that the judgment in Cause No. 1860 was in any way vague, uncertain or ambiguous in its terms, nor did they allege that said judgment, which shows on its face to be an agreed judgment, did not in fact reflect the agreement of the parties. They then alleged that they desired the advice of the court as to whether or not the bottle would violate the injunction, before proceeding further or having the dies made in order that the bottles might be manufactured.
The following facts appear from the record:
For several years prior to the proceedings in Cause No. 1860, Puretex had been in the business of processing and selling lemon and lime juice; and had designed a bottle for use in selling its products. The bottle was made of glass in the shape of a Meyer lemon standing on end, having a small flat surface on the bottom for seating and a cap at the top. The surface of the glass was stippled to give the appearance of a lemon, when filled with juice. Puretex's trade mark thereon was duly registered. Appellee Davis formed the California Products corporation and duplicated the Puretex bottle for use in selling lemon and lime juice. Puretex then filed an infringement suit against appellees, seeking damages in the sum of $4,500 and an injunction against any future infringement. The case was settled by agreed judgment.
Since the judgment appellees have marketed their products in an ordinary common stock bottle and there has been no controversy between the parties. However, their sales steadily declined to almost fifty percent until just before filing the last proceeding. Then appellees made a plaster Paris model of a proposed bottle and submitted it to appellant, seeking an opinion as to whether it would violate the injunction, to which appellant replied that, in its opinion, it would. Appellees then submitted a second plaster Paris model and received the same reply. Then they caused a blue print to be made of a third model and made a solid plastic model thereof and submitted them to appellant with the same request. Appellant replied that it did not care to express an opinion on the model submitted, but would stand on the judgment theretofore rendered, and that if appellees, in its opinion, violated the injunction, appellant would "take the matter up with the court." Appellees then on August 2, 1957, filed the instant suit.
The court submitted the case to the jury on two special issues, as follows:
To which the jury answered "It will not be likely to deceive."
Two main contentions, which are determinative of the case, are presented by appellant's points. First, appellant contends that appellees' petition for declaratory judgment and the evidence in support thereof show that appellees were seeking an advisory opinion of the court upon a hypothetical question or state of facts, not in existence and based upon future contingencies; that no real or justiciable controversy existed between the parties. Second, appellant contends that the judgment of the trial court is erroneous because the effect of the judgment is to modify and change the terms of a final judgment rendered more than five years prior
These contentions are raised by proper points in appellant's brief, and in the trial court by exceptions to appellees' pleading, by general denial and affirmative pleadings, by motions for instructed verdict, by exceptions and objections to the court's charge, by motion to set aside the verdict and dismiss the cause, by motion for judgment non obstante veredicto, and by motion for a new trial, all of which were overruled.
Mr. Anderson in his work on Actions for Declaratory Judgments, 2d Ed., Vol. 1, § 9, states the rule as follows:
Douglas Oil Co. v. State, Tex.Civ.App., 81 S.W.2d 1064, reversed on other grounds Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993; American Federation of Labor v. Mann, Tex.Civ.App., 188 S.W.2d 276; Parks v. Francis, Tex.Civ.App., 202 S.W.2d 683. "Courts do not sit," it is held, "for the purpose of expounding the law upon abstract questions, but to determine the right of litigants by the rendition of effective judgments." McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331; Simpson v. Cotten, Tex.Civ.App., 165 S.W.2d 142, error dismissed; Insurance Inv. Corp. v. Hargrove, Tex.Civ. App., 171 S.W.2d 384, reversed on other grounds 142 Tex. 111, 176 S.W.2d 744, conformed to Tex.Civ.App., 179 S.W.2d 383; Harris County Tex Assessor-Collector v. Reed, Tex.Civ.App., 210 S.W.2d 852. See also, Southern Traffic Bureau v. Thompson, Tex.Civ.App., 232 S.W.2d 742, and McKinnon v. Lane, Tex.Civ.App., 285 S.W.2d 269.
In Southern Traffic Bureau v. Thompson, supra [232 S.W.2d 751], Justice Norvell said:
In McKinnon v. Lane, supra [285 S.W.2d 274], the Fort Worth Court of Civil Appeals said:
See also, Hill v. Sterrett, Tex.Civ.App., 252 S.W.2d 766; 1 Tex.Jur.2d 516, § 11.
The Supreme Court of the United States in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 472, 80 L.Ed. 688, laid down the rule as follows:
In 1 McDonald Texas Civil Practice p. 140, § 2.05, the rule is stated as follows:
While the Uniform Declaratory Judgments Act is declared to be remedial in nature and is to be liberally construed and interpreted in order to effectuate its purpose, and while the administration of the Act rests largely in the discretion of the trial court, yet the exercise of this discretion is subject to review as other orders, judgments and decrees. Art. 2524-1, Vernon's Tex.Civ.Stats.
Viewing all the facts and circumstances in the light most favorable to appellees, it is evident that at the time they filed this suit no justiciable controversy existed between them and appellant, and that they are merely seeking an advisory opinion upon a hypothetical state of facts which were not in existence at the time and might never come into being. None of the proposed bottles had been used, none had been procured by the, none had been manufactured—the dies for their manufacture had not even been made. The entire plan is only evidenced by a blue print and plastic model, which amounts to nothing more than the "artist's conception" of future events. No controversy existed or was even threatened, unless their own fear of the injunction, which appellee Davis testified "speaks for itself" and which was agreed to by them without complaint as to its terms, constitutes a threat of controversy. It is upon these premises that appellees seek legal advice from the court as to the future conduct of their private business affairs. To permit this class of action, under the Uniform Declaratory Judgments Act, would subject every holder of a patent or trade mark to be sued at the will of every person who might seek to determine if a proposed project would constitute an infringement, and place upon the courts the onerous duty of having to determine such suits and give such advice. The same is true in cases of injunctions previously granted.
The trial court also erred in modifying the judgment in Cause No. 1860, styled Puretex Lemon Juice, Inc. v. California Products, Inc. et al. The judgment is clear and unambiguous in its terms. In clear and certain language it enjoins appellees from marketing or selling lime or lemon juice in bottles which resemble in appearance the bottles used by appellant. The judgment shows on its face that it was based upon an agreement of the parties. The judgment in the instant case construes that judgment to mean the use of a bottle "so resembling in appearance that of Defendant's bottle as to be calculated to mislead and deceive the buying public." Thus it is evident that the court has written a new judgment for the parties, giving it a different and more restricted meaning and effect. This is a collateral proceeding, brought more than five years after the judgment became final.
The rule with reference to the construction of a judgment is stated in 25 Tex.Jur. 459, as follows:
The judgment of the trial court is reversed and here rendered that appellees take nothing.