Murphy v. St. Joseph Transfer Co.

• Decision Date: 07 November 1921
• Parties: MURPHY v. ST. JOSEPH TRANSFER CO.
• Court: Missouri Court of Appeals

235 S.W. 138

MURPHY v. ST. JOSEPH TRANSFER CO.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Rehearing Denied December 15, 1921.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Edward Murphy against the St. Joseph Transfer Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Eastin & McNeely, of St. Joseph, for appellant.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

ARNOLD, J.

Plaintiff sued defendant for the value of 17 cases of intoxicating liquor, consisting of rum, wines, gin, whisky, bitters, cordials, creme de menthe, and other liquors. Defendant is a corporation duly organized and existing under and by virtue of the laws of Missouri, and owned, operated, and conducted a public warehouse and general storage business in the city of St. Joseph, Mo., and in such capacity held itself out as a Public warehouseman for hire, and invited plaintiff and the public generally to place goods, wares, liquors, and merchandise in its care and keeping for compensation. The record shows that plaintiff, on or about July 2, 1919, placed in the care and custody of defendant 17 cases of intoxicating liquors above referred to, which defendant received and accepted, and for a stipulated compensation agreed to store and keep and care for said liquors for plaintiff; and to deliver the same to plaintiff at any time thereafter upon plaintiff's request and demand. The record further shows that on or about October 2, 1919, plaintiff demanded of defendant the delivery of the said liquors to plaintiff, which defendant failed and refused to make. The amended petition alleges the facts as stated above. The defendant, in answer, admits, that it is a corporation, that it is a public warehouseman and engaged in the business of storing goods and wares for hire; that on July 2, 1919, it received from plaintiff a quantity of whisky and other portable liquors for storage. Defendant further answers that upon receipt of said liquors it stored them in its warehouse; that on the 21st day of July, 1919, and in the nighttime, lawless persons burglariously and by force entered upon defendant's premises, broke the locks and barriers placed about said liquors, and feloniously stole and carried the same away. The defendant denies each and every other allegation of the petition. The reply was a general denial. Upon the issues thus made the cause went to trial to a jury, and verdict and judgment were for plaintiff in the sum of $557.87. Motions for new trial and in arrest were overruled, and defendant appeals.

A demurrer to the petition was overruled, which defendant urges should have been sustained because the petition failed to state a cause of action; the articles sued for under the allegations of the petition contained alcohol in excess of the amount permitted to be in a beverage; that there could be no sale for beverage purposes, and that there could be no sale for any other purpose except by a person qualified by law to make the sale. This contention of defendant is, of course, based upon Act Cong. Nov. 21, 1918, § 1, 40 U. S. Stat. at L. part 1, p. 1046 (U. S. Comp. St. Ann. Supp. 1619, § 311511/12f) which provides that—

"After June thirtieth, nineteen hundred and nineteen, until the conclusion of the present war and thereafter until the termination of demobilization * * * it shall be unlawful to sell for beverage purposes any distilled spirits."

The act authorizes the Commissioner of Internal Revenue, subject to the approval of the Secretary of the Treasury, to prescribe rules and regulations in regard to the manufacture and sale of distilled spirits, and removal of distilled spirits held in bond after June 30, 1919, until the act shall cease to operate, for other than beverage uses. In compliance with the authority conferred upon him by the act the Commissioner of Internal Revenue on February 6, 1919, issued a series of rules, among which was section 8, which declares;

"All persons, firms or corporations * * * desiring to use or sell distilled spirits or wines for other than beverage purposes will be required, first, to qualify therefor by filing with the collector of the district in which the business is to be conducted an application, in duplicate, for a permit and a bond, in duplicate, to be approved by the collector of the district"

Section 10 of the regulations declares that:

"Distilled spirits and wines for other than beverage purposes may be used only in the arts, sciences and trades where the circumstances are such that there can be no probability that the spirits or wines will be sold or used for beverage purposes or in the manufacture or production of articles intended for use as a beverage."

This regulation also defines the uses for which the spirits may be employed under bona fide United States Pharmacopoeia or National Formulary. Under subsection (d) the regulation also declares that:

"All sales are presumably for beverage purposes when made to a retail dealer in alcoholic beverages (saloon keeper) or rectifier of beverages, and permits will not be issued to retail liquor dealers (saloon keepers) except pharmacists and such other retail dealers as do not sell beverage spirits or wines."

Defendant argues that the foregoing extracts from the law and declared regulations leave no doubt that after June 30, 1919, the liquors involved in this suit had no market value for beverage purposes, and had no value for any other purpose.

This argument is neither conclusive nor convincing, for the reason that the laws and regulations above quoted apply exclusively to the sale of intoxicating liquors for beverage purposes. The record shows that the liquor in question was lawfully acquired, and it is a `rule of law that liquors so acquired and kept are as much surrounded and protected by the laws affecting property rights as any other property.

Section 33 of the Volstead Act (41 Stat. 317) is the only one which deals specifically with liquors lawfully acquired before the taking effect of the act, and it is therefore of the first importance in the consideration of the case before us to ascertain the general intent of the Congress in the operation of the laws regulating intoxicants. Section 33 declares:

"It shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein."

The facts disclosed by the record in the case at bar bring the liquor here involved within the provisions of this section, except that these liquors were stored in a public warehouse instead...