Mark Davidson 0000-00-00 00:00:00
“Formerly the Light Crust Doughboys” In the depths of the Great Depression, an itinerant flour salesman met an up-andcoming musician and developed the idea of cosponsoring a half-hour of radio time on a Fort Worth station. To everyone’s surprise, sales of his flour boomed. Two and a half years later, tired of making $15 a month, the musician went out on his own.1 A suit was brought seeking to enjoin the band from performing. What makes this case significant is that the flour salesman was future Texas Gov. W. Lee “Pass the Biscuits” Pappy O’Daniel. The musician was Jim Rob “Bob” Wills, later to be acclaimed as the King of Western Swing. O’Daniel hired both the Fort Worth firm of Cantey, Hanger & McMahon and the Waco firm of Tirey & Tirey, who brought an action for injunctive relief against Wills and bandmates Thomas Duncan and Kermit Whalen. The petition alleged that the defendants were continuing to perform in violation of their oral contract and had put on their flyers the words “Formerly the Light Crust Doughboys.”2 This, the plaintiff claimed, was unauthorized use of a company trade name. The request to the court was that because the fame the musicians had obtained resulted from their time as employees of the company, that they be prohibited from performing in Texas. A temporary restraining order was apparently granted, prohibiting Wills and the band from playing their music under any name “similar” to Doughboys. Before the hearing on the injunction could be held, a motion for contempt was filed, claiming a violation of the terms of the ex parte order. Wills’ answer was filed by McClennan County sole practitioner Norman Goodall and raised a number of defenses. Other than a general denial and general demurrer, the answer claimed that Wills’ group had been known as the “Dough- Boys” or “Do-Boys” before they ever started working for Burrus Mills, and that they had not assigned the name. Furthermore, the answer stated that the group had been operating as “Bob Wills and His Fiddle Band,” “Fort Worth Doughboys,” and “Bob Wills and His Playboys” and had placed “formerly the Light Crust Doughboys” in their advertisements “solely for purposes of identification.” Matters came to a head on Nov. 1, 1933, when Judge Sam Scott heard the injunction application. At the end of the hearing, the application for injunctive relief was denied and the restraining order was dissolved notwithstanding the appeal.3 Wills was allowed to recommence his music career.4 The ruling was eventually affirmed and the case nonsuited.5 The court file of Burrus Mill v. Wills, et al. is instructive to examine both the early history of the music business and to students of history interested in the life Gov. O’Daniel. Sadly, while the restored file of the McLennan County District Court can be viewed and appreciated, the appellate file was destroyed by the Waco Court of Appeals in the early 1970s in a records retention program. The hearing transcript, exhibits, and briefs are no longer available to the public. Wills’ victory in court over a future Texas governor proves that “It Don’t Matter Who’s in Austin, Bob Wills Is Still the King.” And may he reign forever. By Judge Mark Davidson Notes 1. After resigning, the band might have sung “I Can’t Go on This Way.” 2. Mediation was unknown in 1933. Otherwise, O’Daniel and Wills might have been able to work things out if they had tried a Heart to Heart Talk. 3. During the pendency of the restraining order, Wills went Back to Tulsa to sing. 4. Wills and O’Daniel would eventually reconcile, partially restoring their Faded Love. 5. Wills would eventually promote “Playboy Flour” in competition with Burrus Mills Light Crust Flour, proving that Time Changes Everything.
Published by State Bar of Texas. View All Articles.