Collier v. Roth

• Decision Date: 08 October 1974
• Docket Number: No. 9305,9305
• Parties: Jack L. COLLIER d/b/a Collier's Dairy Products Company, Plaintiff-Respondent, v. Wilfred E. ROTH d/b/a Wimpy's I.G.A. Foodliner, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 829

515 S.W.2d 829

Jack L. COLLIER d/b/a Collier's Dairy Products Company, Plaintiff-Respondent, v. Wilfred E. ROTH d/b/a Wimpy's I.G.A. Foodliner, Defendant-Appellant.

No. 9305.

Missouri Court of Appeals, Springfield District.

Oct. 8, 1974.

Motion for Rehearing or to Transfer Denied Oct. 23, 1974.

Application to Transfer Denied Dec. 16, 1974.

J. Richard Roberts, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-appellant.

James S. Newberry, Columbia, Edward F. O'Herin, Malden, for plaintiff-respondent.

STONE, Judge.

This is the fourth appellate chapter in a marathon judicial serial which began its run in 1962 when the State Commissioner of Agriculture instituted an action against Wilfred E. Roth d/b/a Wimpy's I.G.A. Foodliner, a nonprocessing retailer of milk as defined in the Unfair Milk Sales Practices Act (hereinafter the Act) (§ 416.410(10)), ¹ to enjoin alleged illegal practices of defendant Roth in selling milk below his cost in violation of the Act (§ 416.415). State ex rel. Thomason v. Roth, 372 S.W.2d 94 (Mo.1963). The second and third chapters chronicle the course of the instant action for treble damages (§ 416.455) ² through two previous trials and appeals. Collier v. Roth, 434 S.W.2d 502 (Mo.1968); Collier v. Roth, 468 S.W.2d 57 (Mo.App.1971). After a third trial, defendant Roth now seeks relief from a judgment in the sum of $17,518.86 entered upon a jury verdict in that amount which was 'three times (the) actual damages' of $5,839.62 found in the verdict to have been sustained by plaintiff Collier by reason of defendant's violations of the Act in selling milk at retail for less than cost. § 416.425.

Defendant Roth owned a grocery store in Ste. Genevieve, Wimpy's I.G.A. Foodliner, where he sold milk at retail in sufficient volume to affect prices in Ste. Genevieve and Perry counties. Plaintiff Collier, a milk distributor (§ 416.410(7)) at Perryville, Missouri, sold milk through subdistributors Bernie Palmer in Ste. Genevieve, Missouri, and Roy Wilson and Glen Dobbelare in Perryville, Missouri, who in turn sold the milk at wholesale to retail stores and at retail on home delivery routes. During the period for which damages were sought in this action, to wit, October 1961 to August 1962 inclusive, defendant continued to advertise and sell milk at a price below his cost as determined in accordance with the governing statutory formula, i.e., his invoice price plus his cost of doing business. § 416.410(6). Plaintiff guaranteed his three above-named subdistributors a markup of 4 1/2cents per half-gallon on sales at wholesale and 9cents per half-gallon on retail sales on home delivery routes. Accordingly, when those subdistributors were forced to lower their prices to the level of defendant's reduced prices in order to hold their customers, plaintiff in turn was required to credit his subdistributors from time to time in such amounts as were necessary to maintain their guaranteed markup. That those credits during the period in suit aggregated $5,839.62, the amount of 'actual damages' found by the jury upon trial, is not here disputed.

Defendant's complaints on this appeal are leveled at instructions 2 and 7 tendered by plaintiff. The first point charges that the trial court erred in giving instruction 7, which reads thusly:

'If you find the issues in favor of the plaintiff, and if you believe the conduct of defendant as submitted in Instruction Number 2 was willful, wanton, or malicious, then you may award plaintiff three times his actual damages to which you find plaintiff entitled under Instruction No. 6 as actual and punitive damages.

'The word 'malicious' as used in this instruction does not mean hatred, spite or ill will, as commonly understood, but means the doing of a wrongful act intentionally without just cause or excuse.

'MAI No. 10.01 Modified

'MAI No. 16.01

'Tendered by Plaintiff'

The three reasons assigned in the three subpoints under the first point are that instruction 7 '(a) submits an issue not raised by the pleadings; (b) directs the jury as to the amount of punitive damages, if any, it should assess; (and) (c) jmisstates the applicable should assess; (and) (c) misstates the applicable only penalty it could assess was three times actual damages.'

Of (a). The argument of defendant's counsel on this subpoint runs along the line (1) that plaintiff's petition did not 'support' the giving of instruction 7 (a modification of MAI 10.01 dealing with 'Damages--Exemplary--Willful, Wanton or Malicious Misconduct' followed by the definition of legal malice in MAI 16.01), because this instruction submitted a 'claim for punitive damages based on willful, wanton, or malicious misconduct' although (so counsel declare) plaintiff's petition did not 'serve to alert defendant that 'punitive' damages (were) being sought because of his alleged 'malicious' behavior,' and (2) that, since plaintiff's petition pleaded a cause of action predicated on § 416.455 and that statute does not expressly mention 'malice' or 'maliciousness,' instruction 7 presented to the jury 'an issue entirely foreign to the pleadings.' (Emphasis by counsel)

It always has been the law in this jurisdiction that, as declared in MAI 16.01 (the second paragraph of plaintiff's instruction 7), malice in its legal sense means the doing of a wrongful act intentionally without just cause, for which, as stated in MAI 10.01 (appropriately modified in the first paragraph of plaintiff's instruction 7), the trier of the facts may award exemplary or punitive damages. ³

Instant plaintiff's petition charged, inter alia, that defendant had offered for sale and sold milk in violation of §§ 416.425 and 416.435 of the Act 'with the intent and effect of unfairly diverting trade from the plaintiff and with the intent of destroying plaintiff's business,' averred that his business losses resulted from those 'unlawful acts' of defendant, and asserted that under § 416.455 'he (was) entitled to recover three times his actual damages sustained as the result of (defendant's) violations' of the Act. And during each of the two prior trials (Collier v. Roth, supra, 434 S.W.2d at 503 (first trial); transcript on appeal following second trial, p. 95), as during the third trial presently under review, there was evidence that defendant Roth told plaintiff Collier 'I'm going to put you out of business.'

On the second appeal in this case, we pointed out per Titus, P.J., that, although the Act is not to be classified as criminal because it provides for no criminal penalties (Borden Co. v. Thomason, 353 S.W.2d 735, 750, 755 (Mo. banc 1962)), 'that portion of § 416.455 with which we are concerned is, nonetheless, penal in nature' in that it permits the recovery of penal or punitive damages by investing the trier of the facts with discretionary authority to award an aggrieved plaintiff three times the actual damages sustained. ⁴ Collier v. Roth, supra, 468 S.W.2d at 60(4). Against this recorded backdrop, defendant's present argument he had not been alerted that "punitive' damages (were) being sought because of his 'malicious' behavior' and that instruction 7 presented to the jury 'an issue entirely foreign to the pleadings' becomes strained and specious, and subpoint (a) must be rejected.

Of (b) and (c). We treat of these subpoints together because of their intertwined complaints that instruction 7 advised the jurors that, if they found the issues for plaintiff, they might award him 'three times his actual damages . . . as actual and punitive damages,' rather than informing them that they might award him (as defendant's counsel insist in their brief should have been done) 'up to, but not beyond, three times actual damages.' In their effort to support this position, defendant's counsel primarily and principally rely upon the statement in our case of Simmons v. Jones, 361 S.W.2d 860, 865 (Mo.App.1962), as quoted in the 'Committee's Comment' under MAI 10.01, that "the giving or withholding of punitive damages, as well as the amount thereof, lies wholly within the discretion of the jury' (citing cases); and therefore an instruction which, either expressly or in effect, directs the assessment of such damages in some amount is erroneous.' (Emphasis by counsel) Simmons was a jury-tried action for damages on account of personal injuries sustained in a rear-end vehicular collision, and the above-quoted excerpt from the opinion in that case recognized the established principle applicable in situations where, as in Simmons, the exercise of discretion by the trier of the facts in determining the amount of punitive damages is not limited, regulated or controlled by legislative enactment.

However, instant plaintiff's suit is on a cause of action created and conferred by statute, namely, the Unfair Milk Sales Practices Act (§§ 416.410 to 416.560, incl.), and his recovery of punitive damages in an action such as the one at bar is controlled and governed by § 416.455 which in pertinent part provides that '(a)ny 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 bring a separate action and recover three times the actual damages sustained as a result of the violation . . ..' As we view it, this is a clear, plain and unambiguous statutory grant of permissive authority for the trier of the facts to award 'three times the actual damages sustained,' conferred in language which neither states nor fairly implies that such award may be in any amount 'up to, but not beyond' three times the actual damages. This opinion concerning the statutory grant under consideration has been strengthened and confirmed by an extensive review of our Missouri statutes which clearly and convincingly reflect the fact that, when the General Assembly has intended to grant permissive authority for the trier of the facts to impose a monetary penalty or to make a monetary award in any amount 'up...