Eckdahl v. Hurwitz, 2153

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: RINER, Chief Justice.
• Citation: 56 Wyo. 19,103 P.2d 161
• Docket Number: 2153
• Decision Date: 11 June 1940
• Parties: ECKDAHL ET AL. v. HURWITZ

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

[56 Wyo. 22] 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...