Shoppers World, Inc. v. State
| Decision Date | 30 October 1963 |
| Docket Number | No. 14146,14146 |
| Citation | 373 S.W.2d 374 |
| Parties | SHOPPERS WORLD, INC., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Oscar Spitz, Corpus Christi, for appellant.
Sam L. Jones, Jr., Corpus Christi, for appellee.
This is an appeal from a judgment of the 105th District Court of Nueces County, granting the State of Texas a permanent injunction against Shoppers World, Inc., enjoining it from selling on the two consecutive days of Saturday and Sunday, certain items of merchandise named in Section 1 of Art. 286a Vernon's Ann.Penal Code, but providing, among other things, that such merchandise may be sold if the purchaser 'will certify in writing that a purchase of such items of personal property is needed as an emergency for the welfare, health or safety of human or animal life, which said certification signed by the purchaser is retained by Defendant Shoppers World, Inc., for proper inspection for a period of one year, and such purchase is, in fact, an emergency purchase to protect the health, welfare or safety of human or animal life believed by Defendant Shoppers World, Inc., after inquiry, on reasonable grounds, in the exercise of good faith, to be such emergency purchase.' (Emphasis ours.) From this judgment Shoppers World, Inc., has prosecuted this appeal.
This action was brought by the State of Texas under the provisions of Art. 286a, Vernon's Ann.Penal Code, which prohibits the sale of certain items of merchandise on the two consecutive days of Saturday and Sunday, unless certain exempt conditions apply. The State of Texas alleged that Shoppers World, Inc., offered for sale and sold on both the two consecutive days of Saturday and Sunday, items of merchandise listed in Section 1, Article 286a, supra, in violation of the provisions of said Article, without justification or excuse by reason of any exemptions contained in said Article, which constituted a public nuisance subject to injunction.
This is an agreed case, as provided for by Rule No. 263 Texas Rules of Civil Procedure. All of the facts were stipulated and not one witness was placed upon the witness stand. Thus there can be no disputs as to the facts, and the question here presented is whether the trial court properly applied the law to the undisputed facts. Rule 263, T.R.C.P.; W. T. Burton Co. v. Keown Constructing Co., 353 S.W.2d 909; White v. State, Tex.Civ.App., 329 S.W.2d 446; Vol. 4 McDonald, Texas Civ.Practice, p. 1284, Sec. 16.03.
Under the rule providing for an 'agreed case' the trial court, and on appeal the reviewing court, is limited to the agreed facts and cannot make any findings of fact not conforming to the agreed facts. White v. State, supra.
The agreed statement of facts establishes without contradiction:
(1) That Defendant does not compel, force or oblige its employees to offer to sell or to sell any of the items of personal property listed in Section 1, Article 286a, Vernon's Ann.P.C., on the consecutive days of Saturday and Sunday; and that no employee of Defendant who works on Saturday works on the consecutive days of Sunday following.
(2) That where Defendant sells or offers for sale an item of personal property listed in Section 1, Article 286a, Vernon's Ann.P.C., on the consecutive days of Saturday and Sunday, such sale or offer to sell on Sunday is made only to purchasers who certify on writing that the purchase of the item is needed as an emergency for the health, welfare or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life; but not otherwise.
(3) That this policy, practice and procedure has been publicized by Defendant by newspaper advertisements and by signs which are placed throughout Defendant's store on Sundays, and that Defendant has given written instructions to all of its employees demanding strick adherence to such policy, practice and procedure.
(4) That if a purchaser refuses to sign a certificate of necessity, which many do so refuse, the item is not sold to the purchaser, but is returned to Defendant's racks or shelves, and the sale is not made.
(5) That where a customer indicates hesitancy or doubt about signing the certificate of necessity, the store manager is called, and he, to the best of his ability, then questions the purchaser as to the existence and nature of the emergency requiring the purchase, and only if the store manager is then satisfied that an emergency exists is the sale permitted to be consummated upon the purchaser signing the certificate of necessity; otherwise the store manager advises the customer that the sale cannot be made, and the sale is not made, but the merchandise is returned to Defendant's shelves or racks.
(6) That Defendant sells and offers for...
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