Clark v. Crown Drug Co.

• Decision Date: 14 December 1940
• Parties: J. D. CLARK, RESPONDENT, v. CROWN DRUG COMPANY, A CORPORATION, and CROWN DRUG STORES, INC., A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

146 S.W.2d 98

236 Mo.App. 206

J. D. CLARK, RESPONDENT, v. CROWN DRUG COMPANY, A CORPORATION, and CROWN DRUG STORES, INC., A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

December 14, 1940

Rehearing Denied December 31, 1940, Reported at: 236 Mo.App 206 at 217.

Appeal from the Circuit Court of Greene County, Division No One.--Hon. Guy. D. Kirby, Judge.

AFFIRMED.

Decree affirmed.

Schwimmer Keating, Bredehoft & Burris and A. P. Stone, Jr. for appellants.

(1) Equity will not enforce a penal statute; and, plaintiff cannot invoke the aid of a court of equity to enforce his interpretation of Section 5 of the liquor control act. Rice v. Jefferson, 50 Mo.App. 464; Warren v. Cavanaugh, 33 Mo.App. 102. (a) Ample provisions are made in liquor control act for its enforcement. Section 2a, Liquor Control Act--Laws of 1935, p. 271; Section 2a1, Liquor Control Act--Laws of 1935, p. 272; Section 13, Liquor Control Act--Laws of 1933, Ex. Sess., p. 81; as amended, Laws of 1937, p. 528; Section 26, Liquor Control Act--Laws of 1933, Ex. Sess., p. 88; as amended, Laws of 1937, p. 531; Section 43, Liquor Control Act--Laws of 1933, Ex. Sess., p. 91; as amended, Laws of 1935, p. 282. (2) Having neither pleaded nor proved any damage, plaintiff is not entitled to maintain this action. Wollitzer v. National Title Guaranty Co., 266 N.Y.S. 184, and cases there cited; Corchine v. Henderson (Tex. Civ. App.), 70 S.W.2d 766; State v. Public Theater Corp. of N. Y. (Tex. Civ. App.), 37 S.W.2d 248; York v. Yzaguairre (Tex. Civ. App.), 71 S.W. 563; Motor Car Dealers Assn. of Seattle v. Fred S. Haines Co. (Wash.), 222 P. 611; Long v. Southern Express Co. (C. C. A.), 202 F. 462. (3) The telephone sales in question were made at defendant's store and were proper under defendant's license and the liquor control act. State v. Rosenberger, 212 Mo. 648, 111 S.W. 509; State v. Swift & Co., 273 Mo. 462, 200 S.W. 1066. (a) Intention of parties governs as to place and time of sale. Turner-Looker Liquor Co. v. Hindman (Mo. App.), 232 S.W. 1076, 1077; Consolidated Flour Mills Co. v. Farmers' Elevator Co. (Mo. App.), 247 S.W. 480, 482; Keen v. Rush (Mo. App.), 19 S.W.2d 25, 26. (b) Upon the record in this case, when order was placed and accepted over telephone, sale was completed and titled passed, even though defendant, as vendor, had vendor's lien to secure payment of purchase price so long as defendant retained possession of the property. Southwestern Freight and Cotton Express Co. v. Plant, 45 Mo. 517, 519; Wheless v. Meyer-Schmid Grocer Co., 140 Mo.App. 572, 585, 120 S.W. 708. (4) There was no evidence that defendant had violated liquor control act at any time. However, irrespective of defendant's prior conduct, plaintiff was not entitled to injunction when there was no evidence that defendant was violating act at time of trial. 32 Corpus Juris 76, sec. 63; Davis v. Hartwig, 195 Mo. 380, 398, 94 S.W. 507.

W. Harold Randall and A. B. Lovan for respondent.

(1) Under the evidence the defendant is making sales of intoxicating liquor at places other than drug store. State v. Crumes, 3 S.W.2d 229, l. c. 230, 24 R. C. L. 298; Maxwell v. Dunham, 297 S.W. 94, l. c. 97; Calcara v. United States, 53 F.2d 767, l. c. 768; State v. Young, 70 Mo.App. 52, l. c. 53. (2) Plaintiff's right to bring this suit. Defendant's illegal sales of intoxicating liquor are in competition with plaintiff's legal sales. Therefore, such illegal actions on the part of the defendant interfere with the property rights of the plaintiff. 32 C. J. 55, sec. 32; 32 C. J. 155, sec. 209. (a) The illegality of defendant's actions does not bar this injunction. 32 C. J. 277, sec. 440; 52 A. L. R. 79, 80; Long v. Southern Express Co., 201 F. 441. (3) Although defendant is not now violating the law, that is no reason for denying the injunction. 32 C. J. 77, sec. 63.

TATLOW, P. J. Fulbright, J., concurs; Smith, J., concurs in result.

OPINION

TATLOW, P. J.

--The parties will be referred to in this opinion as plaintiff and defendants.

The learned trial judge rendered a memorandum opinion in which he stated the issues and found the facts, which we approve, as follows:

"Plaintiffs in this case seek to enjoin the defendant from so conducting its business, that is making illegal sales of liquor, so as to create unfair and illegal competition against the plaintiffs; plaintiff suing for himself and practically all of the other tap room operators in the City of Springfield.

"The evidence shows that the defendant has sold liquor on telephone orders and that the title to the property sold did not pass until the liquor was delivered to the purchaser at the purchaser's home or at a place other than defendant's store. This is established by the testimony of defendant's manager. Defendant's manager testified that in cases where liquor has been ordered over the telephone, to be delivered to the purchaser not at defendant's store, the instructions to the messenger or agent of the defendant who delivered the liquor, were not to deliver it unless paid for. This to the Court's mind was a passing of the title, in other words, a sale at a place other than defendant's store and in contravention of the law. Nor could the legal effect of this fact established by the manager's testimony be destroyed or circumvented by the written agreement between the purchaser and the defendant that the sale should be considered as having taken place at the store. As the Court views it, that would be an attempt to circumvent the fact and the plain law as based on the fact that the title to the liquor was to pass at the place of delivery, for the defendant now to say that he and his customers had agreed that a different interpretation should be given to the transaction."

We adopt the finding of the trial court, and also make the following additional findings of fact.

The suit was filed on the 12th day of August, 1939; from February 20, 1940, to April 20, 1940, the defendants adopted the method of requiring each purchaser of liquor, ordered over the telephone, to agree as follows:

"May we at this time consider the sale of the intoxicating beverage just ordered as a completed transaction and that delivery of this product is not a condition precedent to the completed sale?

"Are you 21 years of age or older?"

A customer ordering liquor over the telephone was required to give affirmative answers to the above questions, and, when the delivery was made, defendants' employee who was making the delivery, would have the purchaser sign a slip containing the above questions, which slip was then returned to the defendants.

The slip also contained the following: "I hereby certify that, when this intoxicating beverage was purchased, I asked the purchaser the two questions printed above, and that I received affirmative answers to both questions."

This was signed by the employee receiving the order over the telephone.

Defendants' evidence developed the fact that the plaintiff was unable to give the names or addresses of his customers; and that there was no testimony to indicate that any one who purchased liquor from plaintiff's tap room ever purchased any liquor from the defendants' drug store, either over the telephone or otherwise. Nor was there any evidence to the effect that if a person had been unable to purchase liquor from the Crown Drug Store, over the telephone, such person would have gone to plaintiff's tap room, some seven blocks away, and purchased the liquor there. In other words, there was no direct evidence that the plaintiff ever lost any customers or the sale of liquor by reason of the fact that the defendants were selling such intoxicating beverages over the telephone. The defendants offered considerable evidence to develop and support this contention. Neither was there any direct evidence that any of the tap rooms not selling intoxicating beverages over the telephone lost the sale of any such beverages by reason of the fact that the defendants were selling liquor on telephone orders. Defendants' manager testified: "The amount of liquor sold and delivered daily varies a lot. I would say that we sell and deliver between $ 5.00 and $ 7.00 worth of liquor a day."

The section of the statute relating to this matter (Sec. 5, Laws of Missouri, Extra Session, 1933-1934, p. 80), is as follows: "No person, agent or employee of any person in any capacity shall sell intoxicating liquor in any other place than that designated in the license, or at any other time or otherwise than is authorized by this act and the regulations herein provided for."

It is alleged in the petition and admitted in the answer that the defendants were licensed to sell intoxicating beverages at their place of business at the northeast corner of St. Louis and Jefferson Streets, in Springfield, Missouri, in the original packages. It is also alleged in the petition and shown by the evidence that plaintiff was licensed to sell liquor by the drink and in bottles, half pints and quarts, at his place of business in the City of Springfield.

The first question for decision is whether the sale of liquor on orders over the telephone, and the subsequent delivery thereof, and the collection of the purchase price at the time and place of the delivery, is a violation of Section 5, supra. The Missouri decisions dealing with this question are: State v. Young, 70 Mo.App. 52; State v. Houts, 36 Mo.App. 265; State v. Wingfield, 115 Mo. 428, 22 S.W. 363; Canton v. McDaniel, 188 Mo. 207, 86 S.W. 1092; State v. Rosenberger, 212 Mo. 648, 111 S.W. 509; State v. Swift & Co., 273 Mo. 462, 200 S.W. 1066.

The case of State v. Young, supra, is very short and directly in point. It is there said: "Defendant was indicted, tried and convicted for selling intoxicating...