Giloti v. Hamm-Singer Corp.

• Citation: 396 S.W.2d 711
• Decision Date: 13 December 1965
• Docket Number: No. 51411,No. 2,HAMM-SINGER,51411,2
• Parties: Charles GILOTI, Appellant, v.CORP., Respondent
• Court: United States State Supreme Court of Missouri

Page 711

396 S.W.2d 711

Charles GILOTI, Appellant, v. HAMM-SINGER CORP., Respondent.

No. 51411.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1965.

John R. Whitsitt, John W. Ehrlich, Kansas City, for appellant.

Ira K. Witscher, William H. Ergovich and Lynn B. Nelson, Kansas City, for respondent.

STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court dismissing his petition for failure to state a claim upon which relief may be granted. The damages sought exceed the minimum jurisdictional amount of this court.

From the allegations in plaintiff's petition we find the following facts. Plaintiff is a duly licensed retailer of intoxicating liquors and a resident of Kansas City, Missouri. Defendant is a duly licensed wholesale dealer in Kansas City and is 'the exclusive, franchised dealer in certain brand names of various kinds of intoxicating liquors and related products' which are not available to plaintiff from any other source. Plaintiff has attempted to purchase said products from defendant but it has refused and does now refuse to sell its products to plaintiff. Plaintiff then pleads the existence of Section 311.332 RSMo 1959, V.A.M.S., which we shall subsequently mention, and alleges that by reason of the refusal of defendant to sell its products to him he has been damaged in the amount of $20,000, and that he is entitled to punitive damages in the amount of $100,000.

Plaintiff does not contend that his petition states a cause of action for an unlawful conspiracy or for a violation of the Missouri anti-trust laws. He does present two theories in support of his contention that his petition states a claim upon which relief may be granted; one based on the terms of Section 311.332, and the other irrespective of the provisions of that statute.

Section 311.332, in its material parts, is as follows: 'It shall be unlawful for any wholesaler [of intoxicating liquor] * * * to discriminate between retailers or in favor of or against any retailer or group of retailers, directly or indirectly, in price, in discounts for time of payment, or in discounts on quantity of merchandise sold, or to grant directly or indirectly, any discount, rebate, free goods, allowance or other inducement, excepting a discount not in excess of one per cent for quantity of liquor and wine, and a discount not in excess of one per cent for payment on or before a certain date.'

Appellant refers to a dictionary definition of 'discrimination' which is 'To make distinctions in treatment; show partiality (in favor of) or prejudice (against),' and he cites and relies on only one case, Canada Dry Ginger Ale, Inc. v. F & A Distributing Co., 28 N.J. 444, 147 A.2d 15. That case, however, is not helpful to appellant's contention. New Jersey has a statute which provides that there shall be 'no discrimination in the sale of alcoholic liquors by distillers * * * of nationally advertised brands of alcoholic liquors to duly licensed wholesalers of alcoholic liquors' in that state, and upon complaint the statute authorizes a hearing before the director of an administrative agency 'to determine whether such refusal to sell is arbitrary or not.' If the director finds that the wholesaler has 'the ability * * * to pay for such merchandise as ordered, he shall order the distiller * * * to complete the said sale of alcoholic liquor to the wholesaler.' The above case was not an action for damages, but was an appeal from the order of the director that the sale should be completed. There is no comparable statute in Missouri, and this case does not lend any support to plaintiff.

When reliance is placed upon the provisions of Section 311.332, plaintiff's petition does not state a cause of action against defendant for the relief sought. The facts alleged do not show a violation of that statute. Section 311.332 does not make it unlawful for a wholesaler to refuse to sell its products to any particular retailer. It makes it unlawful only for a wholesaler to discriminate between retailers, or in favor or against a retailer (1) in price, (2) in discounts for time payment, and (3) in discounts for quantity of merchandise sold. It also makes it unlawful for a wholesaler to grant any rebate, free goods, allowances or other inducements, except as specifically authorized. The proscription of the statute is limited to the above. When, as here, 'a statute enumerates the subjects or things on which it is to operate, or the persons affected, or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned; * * *.' 82 C.J.S. Statutes Sec. 333; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160; Parvey v. Humane Soc. of Mo., Mo.App., 343 S.W.2d 678. By no reasonable interpretation can it be held that Section 311.332 makes it unlawful for a wholesaler of intoxicating liquor to refuse to make any sale whatever to a particular retailer.

In addition, Section 311.332 is a criminal statute, and Section 311.338 provides that one who violates it shall be guilty of a misdemeanor. It also provides a penalty for a violation in the form of a suspension or revocation of the wholesaler's license. This court has held 'that a statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative...