Celli & Del Papa v. Galveston Brewing Co.

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: Celli & Del Papa v. Galveston Brewing Co., 186 S.W. 278 (Tex. App. 1916)
• Decision Date: 30 March 1916
• Docket Number: (No. 6977.)
• Parties: CELLI & DEL PAPA v. GALVESTON BREWING CO.

186 S.W. 278

CELLI & DEL PAPA v. GALVESTON BREWING CO.

(No. 6977.)

Court of Civil Appeals of Texas. Galveston.

March 30, 1916.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Suit by Frank Celli and O. Del Papa, composing the firm of Celli & Del Papa, against the Galveston Brewing Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Lewis Fisher, Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellants. James B. & Charles J. Stubbs and Marion J. Levy, all of Galveston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellants, Frank Celli and O. Del Papa, composing the firm of Celli & Del Papa, against the appellee to recover damages in the sum of $20,000 — $9,000 actual and $11,000 exemplary damages.

Plaintiffs' petition alleges, in substance, that during the months of June, July, and August, 1913, and for some time prior thereto, they were and still are engaged in the wholesale liquor business in the county of Galveston, and as such dealers handled and sold at wholesale spirituous, vinous and malt liquors, and that at said time the Galveston Brewing Company was and still is engaged in the manufacture and sale of beer at wholesale in the city of Galveston. The cause of action is set out in the petition as follows:

"And plaintiffs further allege that continuously and almost daily in the months of June, July, and August, 1913, in said county of Galveston, state of Texas, the defendant corporation did unlawfully, willfully, maliciously, and with express intent to injure the business and profits of plaintiffs induce, persuade, threaten, and coerce A. Guisti, D. Guisti, A. B. Coleman, A. Del Papa, Albert Lasson, Ugo Bianche, A. Martini, F. Paganucci, A. Mangiapana, G. Del Papa, A. Menicuci, H. Marcella, N. S. Patrick, and many other persons to make, enter into, maintain, and execute and carry out, and attempt to execute and attempt to carry out, a certain obligation and agreement to prevent and lessen competition in the sale and purchase of a certain commodity and merchandise, to wit, beer, in said county of Galveston.

"And plaintiffs further allege that said corporation did unlawfully, willfully, maliciously, and with the express intent to injure the business and profits of plaintiffs, continually and almost daily, in said months of June, July, and August, 1913, induce and did persuade and did coerce and did threaten and did conspire with and did cause the persons named in the preceding paragraph, and many others, to make, enter into, maintain, execute, and carry out an obligation and an agreement by which the parties thereto did bind themselves not to buy or sell any of the spirituous, vinous, or malt liquors handled and kept for sale by the plaintiffs, and did by said unlawful and malicious conduct preclude a free and unrestricted competition among themselves and others, in the sale and purchase of the said articles of merchandise, kept in stock and offered for sale by said plaintiffs, especially a certain article, commodity, and liquid product known as Cook's beer, the same being lager beer, and the same being offered on the market for sale by the said plaintiffs during said months.

"And plaintiffs further allege that continuously and almost daily during said months of June, July, and August, 1913, the defendant corporation unlawfully, willfully, and maliciously, and with the express intent to injure the business and profits of plaintiffs, did induce, did persuade, and did coerce the persons named in paragraph 2 of this petition, and many other persons, to boycott, and to agree to boycott and to refuse and to agree to refuse to buy from plaintiff, any of said legitimate merchandise, to wit, the said Cook's beer, and any of the other liquors and merchandise kept in stock for sale by said plaintiffs during said months.

"And plaintiffs further allege that at the time of the beginning of said unlawful and said malicious acts and conspiracies on the part of the defendant corporation with the persons named in paragraph 2 of this petition, and with many other persons, the said plaintiffs were engaged in selling at wholesale, a certain commodity known as Cook's beer, the same being lager beer, and were in the months of June and July realizing a profit from the sale of said beer in the approximate sum of $350 per month, and that on account of said unlawful and malicious conduct of the defendant corporation in inducing, threatening and persuading the said persons named in paragraph 2 of this petition, and many others, to boycott and to refuse to buy said beer from these plaintiffs, and to refuse to handle said beer in any way, the plaintiffs' business in the sale of said beer depreciated to such an extent in the month of August, and continually during all of said months from said month of August up to the date of filing of this petition to the extent of $350 per month."

These allegations are followed by allegations of the actual loss sustained by plaintiffs in the decreased profits derived from their business by reason of the alleged wrongful and illegal acts of the defendant before alleged, and by prayer for the recovery of actual and exemplary damages in the sums before stated.

The defendant answered by general demurrer, special exceptions and general denial, and the following special plea:

"Defendant alleges the truth to be that plaintiffs endeavored to deprive defendant of the patronage of its customers, being those named by plaintiffs in their petition, and others, and to that end sold or endeavored to sell to defendant's said customers beer other than that manufactured by defendant, thus seeking to supplant defendant and destroy its business with its said customers; that defendant thereupon endeavored to retain the patronage of its customers as against the aggressions of plaintiffs, and this it is ready to verify."

The demurrer and exceptions were overruled, and the cause proceeded to trial with a jury. After hearing the evidence the trial judge, on motion of defendant, instructed the jury to return a verdict in defendant's favor, and upon the return of such verdict judgment was rendered in accordance therewith.

The only assignments of error presented in appellants' brief assail the action of the court in instructing the jury to return a verdict for the defendant. The contentions under these assignments are that the undisputed evidence shows that defendant did, as alleged in the petition, "unlawfully, willfully,...