Collier v. Roth, 53609
| Decision Date | 12 November 1968 |
| Docket Number | No. 53609,No. 1,53609,1 |
| Citation | 434 S.W.2d 502 |
| Parties | Jack L. COLLIER, d/b/a Collier's Dairy Products Co., Appellant, v. Wilfred E. ROTH, d/b/a Wimpy's I. G. A. Foodliner, Respondent |
| Court | Missouri Supreme Court |
O'Herin & Newberry, Malden, for plaintiff-appellant.
Dearing, Richeson, Weier, Roberts & Wegmann, J. Richard Roberts, Hillsboro, for respondent.
HIGGINS, Commissioner.
Action under the Unfair Milk Sales Practices Act, Sections 416.410 to 416.560 V.A.M.S., for treble damages in excess of $15,000. Judgment was for defendant.
Plaintiff's petition, filed May 20, 1963, identified defendant as a nonprocessing retailer of milk products as defined in Section 416.410(10), V.A.M.S., and charged that from October 10, 1961, to May 20, 1963, he advertised and made sales of milk for less than cost in violation of Section 416.425, V.A.M.S., with intent and effect of unfairly diverting trade from plaintiff and destroying and injuring plaintiff's business and property. Plaintiff claimed actual damages as a result of the alleged unlawful acts of defendant and prayed for 'three times the actual damages' under Section 416.455, V.A.M.S.
Jack L. Collier, a milk distributor at Perryville, Missouri, obtained his milk supply by purchases from Chester Dairy Company, Chester, Illinois, and sold it through subdistributors Bernie Palmer in Ste. Genevieve, Missouri, and Roy Wilson and Glen Dobbelare in Perryville, Missouri. The subdistributors in turn sold the milk at wholesale to retail stores and at retail on home delivery routes. Mr. Collier guaranteed his subdistributors a markup of 4 1/2cents per half gallon on sales at wholesale and 9cents per half gallon on home delivery sales. If and when the subdistributors had to meet a lower price of a competitor, Mr. Collier reduced his price to the subdistributors to maintain their guaranteed markup.
Wilfred E. Roth owned a grocery store in Ste. Genevieve, Missouri, Wimpy's I.G.A. Foodliner, and he sold milk at retail in a volume sufficient to affect prices in Ste. Genevieve and Perry counties. Each week between October 10, 1961, and May 20, 1963, in the Ste. Genevieve Herald, he advertised a price on milk which was less than his invoice price plus his cost of doing business, and made sales of milk pursuant to the advertisements, all in violation of Section 416.425, supra. A permanent injunction on account of such sales was issued against defendant by the Circuit Court of Ste. Genevieve County, The Honorable J. O. Swink, Judge, July 3, 1962, for violations of the Act during the period February 3, 1962, to March 26, 1962; however defendant continued to advertise and sell milk at a price below his invoice price plus cost of doing business. In November, 1961, Mr. Collier asked Mr. Roth if he would consider getting his sale price in line with other brands. His answer: 'I'm going to put you out of business.'
In order to meet defendant's reduced prices, plaintiff reduced the price of milk to his subdistributors. This was accomplished by issuing credits on unit prices in amounts sufficient to maintain the guaranteed markup and were calculated monthly:
"Credits Issued by Jack Collier
From October 10, 1961
through May, 1963
October 10, 1961 $ 361.03
November 1961 2,173.86
December 1961 682.02
January 1962 194.18
February 1962 140.03
March 1962 1,409.09
April 1962 520.39
May 1962 0.00
June 1962 0.00
July 1962 0.00
August 1962 359.02
September 1962 888.64
October 1962 579.41
November 1962 621.68
December 1962 640.64
January 1963 957.53
February 1963 867.13
March 1963 826.86
April 1963 632.05
May 1963 629.90
---------------
$12,483.46"
Plaintiff submitted these credits as his actual damages which, when trebled, amount to $37,450.38.
During this period plaintiff had an arrangement with his supplier, Chester Dairy by which he would be paid 5cents for each 4 1/2cents of guarantee paid on account of reduced prices on retail sales. At trial time plaintiff had received $8,894.83 from Chester to offset losses paid to his subdistributors. Additional sums were due plaintiff which were withheld pending results of this litigation and which plaintiff hopes to obtain or settle upon conclusion of this litigation.
Upon trial without a jury, the trial court sustained defendant's motion for directed verdict and entered judgment for defendant for the reason that 'plaintiff's evidence and proof does not indicate that even if defendant Roth had made improper sales that plaintiff was damaged by said sales.' The court amplified this position by observing:
Appellant contends he made a case of damages under the Act in that he proved he 'had to lower his price of milk to meet the lower unlawful price of defendant-respondent and that the sum of $12,483.46 represents the additional amount * * * (he) would have received from the sale of his milk but for the unlawful acts of defendant-respondent.' Appellant supports this position with the further contention (in answer to the court's observations) that 'payments received and to be received by * * * (him) from the Chester Dairy Company to offset his loss of $12,483.46 are payments from a collateral source and are not available to defendant-respondent to show that plaintiff appellant suffered no damages.'
Respondent offers two contentions in support of the judgment: that plaintiff is not the real party in interest and thus has no right to maintain this action; and that plaintiff 'did not establish * * * he was damaged, nor did * * * (he) demonstrate any causal connection between his alleged injury and defendant's alleged violation of the milk sales law.'
Authority for recovery of private treble damages under the Unfair Milk Sales Practices Act is provided by Section 416.455, V.A.M.S.: 'Any person who is injured in business or property by reason of another person's violation of any provision of sections 416.410 to 416.560 may intervene in the suit for injunction instituted pursuant to section 416.450, against the other person or he may bring a separate action and recover three times the actual damages sustained as a result of the violation, together with the costs of the suit, or may sue to enjoin the violation of any provision of sections 416.410 to 416.560.'
This section has not been previously construed by a Missouri appellate court; however, it has been construed and was the authority for a damage award in Albrecht Dairy Co. v. Dean Foods Co., E.D.Mo., 269 F.Supp. 329, first filed in, but removed from, the Cape Girardeau, Missouri, Court of Common Pleas. In absence of Missouri authority, it is proper to consult such federal decisions, Lynch v. Webb City School Dist. No. 92, Mo.App., 418 S.W.2d 608, 617(15); State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, 28(1), and the Act should be liberally construed in order that its beneficial purposes be served. Borden Co. v. Thomason, Mo., 353 S.W.2d 735, 753(14).
The judgment for plaintiff Albrecht was affirmed, Dean Foods Co. v. Albrecht Dairy Co., 8 Cir., 396 F.2d 652, the court holding that Section 416.455, V.A.M.S., is identical in substance to Section 4 of the Clayton Act, 15 U.S.C. § 15, and, accordingly approved the use of cases under the Clayton and Sherman Acts for construction of Missouri's Act. Such cases recognize a distinction between the burden of proof required to establish the fact of damage and that necessary to show the amount of damage. 396 F.2d l.c. 658.
As found by the trial court, and as contended by defendant Roth, defendant Dean contended that notwithstanding its violation of the Missouri Act, plaintiff was not caused to sustain any damage by reason of its violation and, therefore, had no cause of action for damages. Of this contention, the 8th Circuit said: ...
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...stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person he has wronged." Collier v. Roth, 434 S.W.2d 502, 506-07 (Mo.1968) (quoting 25 C.J.S. Damages § 99(1) at Such a broad statement of the rule is of little help in determining its application h......
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