Civic Ass'n. of Wyoming v. Railway Motor Fuels, Inc., 2196

• Decision Date: 19 August 1941
• Docket Number: 2196
• Parties: CIVIC ASS'N. OF WYOMING v. RAILWAY MOTOR FUELS, INC., ET AL. (Two cases)
• Court: Wyoming Supreme Court

116 P.2d 236

57 Wyo. 213

CIVIC ASS'N. OF WYOMING v. RAILWAY MOTOR FUELS, INC., ET AL. (Two cases)

No. 2196

Supreme Court of Wyoming

August 19, 1941

APPEAL from the District Court, Laramie County; H. R. CHRISTMAS Judge.

Consolidated actions by the Civic Association of Wyoming against Railway Motor Fuels, Inc., Alfred Torgerson, and R. E. Cheever to enjoin the alleged sale by defendants of gasoline in violation of the Unfair Competition and Discrimination Act. From a judgment in favor of the defendants, the plaintiff appeals.

Affirmed.

For the appellant, there was a brief by Samuel S. Ginsberg and Nathan H. Creamer of Denver, Colorado, and Edwin W. Baron of Cheyenne, Wyoming, and an oral argument by Mr. Ginsberg.

There are but three main issues in this case: (1) Were the defendants from March 28, 1940 to April 18, 1940, guilty of discriminating in prices in violation of Section 1 of the "Unfair Competition and Discriminaton Act" of the State of Wyomng? (2) Were the defendants during the same period guilty of offering for sale or advertising for sale gasoline at less than their cost, in violation of Section 2 of said act? (3) Does the Act itself contravene the Fourth Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States or Section 6 of Article I of the Constitution of Wyoming? It is our contention that the evidence shows that defendants were guilty of discrimination in violation of Section 1 of the Act. Herrmann v. Kaiser (Mo. App.) 85 S.W.2d 928; Lewis v. Kaplan (Mo. App.) 5 S.W.2d 699; Mathews v. Chambers Power Co. (Ore.) 159 P. 564; United States v. Workingmen's Amalgamated Council, 54 F. 994. We also contend that the evidence shows that defendants were guilty of selling Calso Bronze Gasoline below their cost, as cost is defined in said act. Herrmann v. Kaiser, supra; Lewis v. Kaplan, supra; United States v. Workingmen's Amalgamated Council, supra. The period of computation in defendants' Exhibit "E" was too short as a basis for figuring the business cost. State v. Langley (Wyo.) 84 P.2d 767. There were unlawful deductions for salaries. Cohen v. Commissioner of Internal Revenue, 31 F.2d 874. The defendants made improper allowances for advertising and freight. Dikeou v. Food Distributors, 108 P.2d 529; State v. Langley, supra. The evidence shows unlawful intent on the part of defendants. Doe v. United States, 253 F. 903 (8th Cir.); Dunlap v. United States, 70 F.2d 35; General Motors v. United States, 32 F.2d 121; Jones on Evidence, Vol. 1, p. 163, Sec. 27; Manly v. Ohio Shoe Co., 25 F.2d 384; U. S. v. Model Chevrolet, 14 F.Supp. 680; Workman v. State, 21 N.E.2d 712. The judgment of the court is not sustained by the evidence, but is contrary to the evidence and the law. 4 C. J. 861; D. & R. G. R. Co. v. Peterson (Colo.) 69 P. 578; Henderson v. People's Pharmacy, 89 Colo. 338; Mitchell v. Reed, 16 Colo. 109; Rhode v. Steinmetz, 25 Colo. 308; Thuringer v. Trafton, 58 Colo. 250. The court committed errors in the admittance and rejection of evidence with a particular reference to plaintiff's exhibits "E" and "F" and in receiving testimony of Jack Milstein over the objection of plaintiff. Bennett v. Myers (Mo. App.) 21 S.W.2d 943; 22 C. J. 713; Enyart v. Orr, 78 Colo. 6; Jones Commentaries on Evidence, Vol. 2, Section 371; McGuire v. Traction Company (Mo. App.) 30 S.W.2d 794; Stacy v. Williams (Ky.) 69 S.W.2d 697. The act is constitutional and we submit the following authorities from other jurisdictions where similar Acts have been upheld: Rust v. Riggs (Tenn.) 113 S.W.2d 733; Tobacco Dealers v. National Candy & Tobacco Company (Cal.) 82 P.2d 3; Associated Merchants of Montana v. Ormesher (Mont.) 86 P.2d 1031; Helena Automobile Dealers Association v. Anderson (Mont.) 98 P.2d 370; Dunnell v. Shelley (Calif.) 100 P.2d 830; McElhene v. Geror (Minn.) 292 N.W. 414; State v. Sears (Wash.) 103 P.2d 337; Carroll v. Schwartz (Conn.) 14 A. 764; People v. Black's Food Store (Calif.) 105 P.2d 361; Dikeou v. Food Distributors Association (Colo.) 108 P.2d 529. This court in State v. Langley, we believe, has sustained the contentions of plaintiff.

For the defendants and respondents, there was a brief by S. E. Torgerson and L. V. Halcomb of Kimball, Nebraska, and Albert D. Walton of Cheyenne, Wyoming, and oral argument by Messrs. Torgeson and Walton.

It is the contention of defendants and respondents that the evidence in this cause fails to show that they were guilty of discrimination in violation of Section 1 of what is known as the Unfair Competition and Discrimination Act of the State of Wyoming, and for that reason alone, the judgment of the trial court should be affirmed in its entirety. Green v. Grimes (Calif.) 102 P.2d 452; Machine Co. v. Vande Vrede (Mich.) 286 N.W. 612; Elson v. Schmidt (Nebr.) 287 N.W. 196; 32 C. J. 45; Mathews v. Chambers Power Co. (Ore.) 159 P. 564. The evidence further shows that defendants were not guilty of selling Calso Bronze gasoline below their cost, as cost is defined in said Act. A. & P. Tea. Co. v. Ervin (Minn.) 23 F.Supp. 83; Acme Distributing v. Thomi (Tenn.) 136 S.W. 734; Commonwealth of Penn. v. Zasloff, 13 A.2d 67; State v. Langley (Wyo.) 84 P.2d 767. The cost of Calso Bronze gasoline is defined by the Act. Section IV of the Unfair Trade Practice Act contains a cost survey and is made competent evidence to prove such cost. Words and Phrases--1st and 2d; Johnson v. Farmer (Calif.) 107 P.2d 959; State v. Sears (Wash.) 103 P.2d 337. Defendants' evidence concerning its cost of doing business, its Exhibit "E," and its evidence of expenditures for salaries and advertising was all competent and properly received by the court. Dikeou v. Food Distributors Association (Colo.) 108 P.2d 529. There was no evidence showing unlawful intent on the part of defendants. Williams v. Standard Oil Co., 278 U.S. 235; Editorial Comment--60 A. L. R. 605. Plaintiff's contention that the Act is unconstitutional seems to be without merit. Williams v. Standard Oil Company, 278 U.S. 235, 60 A. L. R. 596. The Supreme Court of the United States has condemned combinations formed by oil companies that operate to increase the cost of gasoline to ultimate consumers. U. S. v. Socony Vacuum Oil Co., 310 U.S. 150; Ethyl Gasoline Corporation v. U.S. 309 U.S. 436. We submit to this court that the record in this case shows that the judgment of the trial court is amply supported by the evidence and sustained by law.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The record before us in this litigation presents a direct appeal from a judgment of the district court of Laramie County disposing of two cases instituted under Chapter 73 of the Laws of Wyoming enacted by the Twenty-fourth State Legislature in 1937 and generally known, as stated in the opening words of the title thereof, as "an Act relating to unfair competition and discrimination." These two cases, designated in the trial court respectively as No. 25-22 and entitled there "Civic Association of Wyoming, a Colorado corporation, plaintiff, v. Railway Motor Fuels, Inc., a Wyoming corporation, and Alfred Torgeson, defendants," and as No. 25-23 and entitled there "Civic Association of Wyoming, a Colorado corporation, plaintiff, v. Railway Motor Fuels, Inc., a Wyoming corporation, Alfred Torgeson, and R. E. Cheever, defendants," were consolidated for trial purposes. Hence a single record brings them here for a review of the judgment aforesaid, and they may properly be considered in one opinion.

For convenience and brevity the Civic Association of Wyoming, a corporation organized and existing under the laws of the State of Colorado and authorized to transact business in this State as a foreign corporation, will ordinarily be referred to hereinafter as either the "plaintiff," the "appellant" or the "Association." For like reasons the defendant and respondent, Railway Motor Fuels, Inc., a corporation organized and existing under Wyoming laws, will be usually subsequently herein mentioned as the "Fuels Company." The other defendants and respondents will be referred to by their individual names. The defendant Alfred Torgeson is vice-president and treasurer of the Fuels Company, and the defendant R. E. Cheever was associated with Torgeson and one Gene R. Brown, the son-in-law of Torgeson, in the management of the business of the Fuels Company at the Wayne Daniel Service Station, hereinafter mentioned under an oral contract which was subsequently reduced to writing. Case No. 25-22 will occasionally be referred to as the "wholesale case," and No. 25-23 as the "retail case." The facts and history of these controversies so far as need be detailed here appear to be substantially as follows:

On the 27th day of March, 1940, the Fuels Company commenced the management of the Wayne Daniel Service Station, located at 2002 Carey Avenue in the City of Cheyenne, and sold gasoline to the general public at retail. There were two types of this gasoline sold. The better grade thereof known as "Calso Bronze" sold at twenty cents per gallon, and an inferior grade or "Flight" sold at eighteen cents per gallon, these being the then retail prices for these two grades of motor fuel generally maintained by this and other dealers in competitive gasoline in the City of Cheyenne. During the days following and until March 30, 1940, the volume of business transacted at the service station aforesaid was wholly unsatisfactory. On that date the price of gasoline at the service station aforesaid was reduced by Torgeson and his associates to 12.8 cents per gallon for the Calso Bronze gas. This price was maintained until April 6th following, when it was raised to 13.8 or 13.9 cents per gallon, and about April 11, 1940, the price was again increased to 14.9 cents per...