Eckdahl v. Hurwitz

• Decision Date: 11 June 1940
• Docket Number: 2153
• Citation: 56 Wyo. 19,103 P.2d 161
• Parties: ECKDAHL ET AL. v. HURWITZ
• Court: Wyoming Supreme Court

103 P.2d 161

56 Wyo. 19

ECKDAHL ET AL. v. HURWITZ

No. 2153

Supreme Court of Wyoming

June 11, 1940

APPEAL from the District Court, Albany County; V. J. TIDBALL, Judge.

Suit for an injunction by Charles Eckdahl and another against Al Hurwitz doing business as Al's Midwest Store. From a judgment for defendant, plaintiffs appeal.

Affirmed.

For the plaintiffs and appellants, the cause was submitted on the brief of Frank E. Anderson and Wm. Edmonds of Laramie.

The trial court erred in denying plaintiffs' application for an order restraining defendant from operating a suit club and advertisements in connection therewith, which constituted unfair competition under Chapter 73, Session Laws 1937, and also in holding that the evidence did not show that defendant injured competitors or destroyed competition. The trial court also erred in refusing injunctive relief, on the theory that suit and merchandise clubs are in the nature of lotteries and violate criminal statutes, which violation a court of equity would not restrain. Under the evidence and decisions applicable thereto, it is apparent that such clubs are in the nature of lotteries. 17 R. C. L. 1226; Paulk v. Land Co., 22 So. 495; People v. McPhee, 103 N.W 194; Burks v. Harris, 120 N.W. 979; State v Home Company, 92 N.W. 763; Hall v. Hughes, 56 N.Y. 424; Fleming v. Bills, 3 Ore. 286; Loan Company v. Warring, 44 S.E. 320; People v Wassmus, 182 N.W. 66; State v. Walford, 185 N.W. 1017; People v. Heckt, 3 P.2d 399; State v. Powell, 212 N.W. 169; State v. Emerson, 1 S.W.2d 109; Chamber of Commerce v. Keick, 257 N.W. 493; Glover v. Malloska, 213 N.W. 107; Blair v. Lowham, 276 P. 292. We believe the following cases set forth the degree of proof necessary to establish unfair competition and merchandising. Featherstone v. Service Station Ass'n., 10 S.W.2d 124; Glover v. Molloska, 213 N.W. 107; Hardie-Tynes Mfg. Co. v. Cruse, 66 So. 657; Corporation v. Colonial Enterprise, Inc., 267 N.W. 602; Theatres Corporation v. Theatrical Enterprise, 273 N.W. 756; Serfirt v. Optical Company, 268 N.W. 784. Equity will restrain acts, even though criminal, where it is necessary to protect private property or business. R. R. Co. v. Atlanta (Ga.) 45 S.E. 256; Hasbrouck v. Bondurant et al., 56 S.E. 241; Bryan v. Mayor, 45 So. 922; Ramon v. Saenz, 122 S.W. 928; Mine Company v. Richardson, 194 F. 198; Mfg. Company v. Cruse, 66 So. 657; Rogers v. Nevada Canal Co., 151 P. 923; Hearld v. Glendale Lodge, 189 P. 329; Wood v. Ratliff, 103 So. 356; Long's Baggage Transfer Co. v. Burford et al. (Va.) 132 S.E. 355; Ry. Co. v. M'Connell, 82 F. 65; Theatre Corporation v. Colonial Theatrical Enterprise (Mich.) 267 N.W. 602; Seifert et al. v. Optical Company (Mich.) 268 N.W. 784; Glover v. Malloska (Mich.) 213 N.W. 107. A court of equity has jurisdiction to restrain a lottery. Glover v. Malloska (Mich.) 52 A. L. R. 77; Featherstone v. Service Ass'n. (Texas) 10 S.W.2d 124. The judgment below should be reversed.

For the respondent, the cause was submitted on the brief of Alfred M. Pence of Laramie.

A cause of action under Chapter 73, Laws 1937, must establish conduct on the part of defendant that is injurious to competitors and destroys competition. The evidence in the present case falls far short of that and the trial court did not err in refusing a permanent injunction. 2 Lawrence Equity Jurisprudence 1185; 4 Pomeroy Equity Jurisprudence 3935; Schradsky v. Appel Clothing Company (Colo.) 50 P. 528; Wert v. Webster, 31 Ohio State 621 and cases cited. The granting of an injunction rests in the discretion of the court. Schwartz v. Arata (Calif.) 188 P. 313; Stowe v. Powers (Wyo.) 116 P. 576; City Company v. City of Casper (Wyo.) 206 P. 149; Williams v. Los Angeles Railway Company, 89 P. 330; 200 F. 268; Beidenkopf v. Des Moines Life Ins. Co. (Iowa) 142 N.W. 434. Courts will deny relief to plaintiffs who have slept on their rights. 21 C. J. 193. The general subject is treated in 32 C. J. 275. Equity will not enjoin violation of penal or criminal statutes. Commonwealth v. Kentucky Jockey Club, 38 S.W.2d 987; People v. District Court (Colo.) 58 P. 604; Hill v. Pierson, 63 N.W. 835; State v. Patterson, 37 S.W. 478; Casper Theaters Company v. Rex Investment Company (Wyo.) 261 P. 908; Black v. Jackson, 177 U.S. 361; Littleton v. Burgess, 14 Wyo. 173. Equity deals only with civil and property rights. Suess v. Noble, 31 F. 855. There was no error in the findings of the trial court.

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

OPINION

RINER, Chief Justice.

This cause is here through the direct appeal method of procedure to review a judgment of the district court of Albany County denying an application made therein by the plaintiffs, Charles Eckdahl and O. C. Dinelly, for an injunction to issue against the defendant, Al Hurwitz. Both a temporary restraining order and a permanent injunction were sought. The decision of the district court aforesaid was adverse to the plaintiffs on both applications. The basis upon which plaintiffs predicated their right to relief was that the defendant by his acts injured plaintiffs, destroyed competition, and willfully violated the provisions of Chapter 73, Laws of Wyoming, 1937, commonly known as the Unfair Competition and Discrimination statute of this State, and will continue to do so, thereby continuing to maintain a nuisance and to "exercise unfair competition and discriminate against the plaintiffs" in violation of their rights, unless restrained from so doing by court order.

The plaintiffs, as is the defendant, are merchants having their places of business in the City of Laramie, Wyoming, the plaintiff Eckdahl being engaged in selling by sample "made to measure" shirts and suits of clothing, and the plaintiff Dinelly conducting a jewelry store in said city. The defendant Hurwitz also sells suits, overcoats, jewelry, and other merchandise. Most of the latter's business is, as he testified, so far as clothing is concerned some ninety-nine per cent "shelf business," i. e., ready to wear clothing, and he does "very little" made to measure clothing business. On the witness stand he stated that he did not consider Eckdahl as one of his competitors. The plaintiff Dinelly gave no testimony on the trial.

The business methods of the defendant Hurwitz, of which complaint is made and against which relief was sought, are practically identical with those fully described in the cases of Grant et al. v. State, 54 Tex. Crim. 403, 112 S.W. 1068, and Pueblo v. Swiggett, 37 P.R.R. 845. See also DeFlorin v. State, 121 Ga. 593, 49 S.E. 699; People v. McPhee, 139 Mich. 687, 103 N.W. 174; State v. Moren, 48 Minn. 555, 51 N.W. 618; State v. Perry, 154 N.C. 616, 70 S.E. 387; Commonwealth v. Painter, 15 Pa. D. 491.

The district court in its judgment aforesaid found that the evidence submitted in the cause failed to show that the defendant in his methods of transacting business aforesaid "sold merchandise for less than cost, since the whole or entire transaction must be considered, and the evidence shows that Al Hurwitz, defendant, made money on the entire transaction; and, further, the evidence fails to show that said acts of defendant injured competitors or destroyed competition; and that for the reasons set forth there is no violation of Chapter 73, Wyoming Session Laws, 1937." The court also found inter alia that defendant's methods of business claimed to be objectionable were violations of the criminal statutes of the State of Wyoming relating to lotteries, but that the evidence in the case also failed to establish "that the commission of the crime especially injured plaintiffs' businesses or that an injunction in this suit would prevent a multiplicity of suits; that there is a plain and speedy remedy at law by way of criminal prosecution." It was accordingly adjudged that plaintiffs take nothing and that the injunction sought should be denied, as hereinbefore indicated.

We have examined with care the record in this case, and have reached the conclusion that there is substantial evidence to support the court's finding as above quoted. That finding is not only thus supported, but the evidence seems to us of such a character that we do not well see how the court could have found otherwise than it did. So far as the second above quoted excerpt from the findings is concerned, we agree, also, that the evidence in the record likewise fails to show that what defendant did "especially injured plaintiffs' businesses," assuming his acts were in fact a violation of the State's criminal law, a point not contested here. See Sections 32-815, 32-816 and 32-817, W. R. S., 1931.

Relative to the judgment following the findings above referred to the subjoined authorities are pertinent:

32 C. J. 275-276 says, upon the citation of a lengthy list of decisions from appellate courts, that:

"It is now universally held that, except where there is express statutory authority therefor, equity has no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes. Under ordinary circumstances a complete and adequate remedy for the violation of the criminal statutes of a state and of municipal ordinances is afforded by the courts of law; and if a criminal prosecution will constitute an effectual protection against the acts or omissions complained of, no grounds exist for relief by injunction."

1 High on Injunctions (4th Ed.) Chapter 1, Sec. 20, lays down the rule thus:

"Equity has no jurisdiction to restrain the commission of crimes, or to enforce moral obligations and the performance of moral duties; nor will it interfere for the prevention of an illegal act merely because it is illegal. And in the absence of any...