State ex rel. Heath v. Tankar Gas, Inc.
| Decision Date | 08 April 1947 |
| Citation | 250 Wis. 218,26 N.W.2d 647 |
| Parties | STATE ex inf. HEATH, Dist. Atty., v. TANKAR GAS, Inc. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Fond du Lac County; L. J. Fellenz, judge.
Reversed.
This was an action by State of Wisconsin, upon information of S. Richard Heath, District Attorney in and for Fond du Lac County, Wisconsin, against Tankar Gas, Inc., a foreign corporation, commenced on November 14, 1945, to enjoin defendant from violating the provisions of sec. 100.30, Stats., known as the ‘Unfair Sales Act.’After issue joined defendant moved for a summary judgment and on July 18, 1946, an order was entered denying defendant's application.Defendant appeals from this order.The material facts will be stated in the opinion.Kenneth E. Worthing, of Fond du Lac, for appellant.
John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and Earl Sachse, Asst. Atty. Gen., for respondent.
Defendant is engaged in the business of wholesaling and retailing gas and operates two filling stations in Fond du Lac.On October 5, 1945, defendant inserted the following advertisement in a Fond du Lac newspaper:
‘FREE
‘Friday Thru Monday
2 Gallons
Gasoline
(You Pay The Tax)
With each 7 gallon purchase of Tankar Super Gasoline-October 5 thru October 8
Higher Octane
More Mileage
Smoother Performance
Once you try it-you'll always buy it
Tankar Station
295 West Scott St.
253 North Main St.'
The state contends that this advertisement violated sec. 100.30, Stats.So far as material here sec. 100.30, Stats., provides as follows:
‘(1) Policy: The practice of selling certain items of merchandise below cost in order to attract patronage is generally a form of deceptive advertising and an unfair method of competition in commerce. * * *’
Subsection (2)(j) provides:
‘(j) When one or more items are advertised, offered for sale, or sold with one or more other items at a combined price, or are advertised, offered as a gift, or given with the sale of one or more other items, each and all of said items shall for the purposes of this section be deemed to be advertised, offered for sale, or sold, and the price of each item named shall be governed by the provisions of paragraph (a) or (b) of subsection (2) hereof.’
Subsection (3) provides:
The balance of subsection (2) is devoted to regulations governing the ascertainment of a fair price and need not be set forth in detail.
Since the two gallons of gasoline advertised as free with the purchase of seven gallons were ‘offered as a gift, or given with the sale of one or more other items,’section 100.30(2)(j), Stats., from which the above phrase was taken, applies and requires that the price of each item be governed by earlier paragraphs of the same subsection specifying the manner of establishing cost.
The controversy is narrow, it being the contention of the state that the two gallons of gas shall have separately applied to them the cost requirements of sec. 100.30(2), whereas defendant contends that the entire nine gallons, together with the total purchase price at which they were sold, are to be considered in applying the requirements.It appears from affidavits filed on motions for summary judgment that considering the sale to have been one of nine gallons of gas, the transaction satisfies all of the conditions of subsection (2).
In support of its contention the state points out that sec. 100.30(2)(j), Stats., provides that when one or more items are offered for sale with one or more other items at a combined price or one or more items are offered as a gift with the sale of other items each and all of said other items are deemed to be offered for sale and the price of each item named shall be governed by provisions definitive of cost.It is thus claimed that in every case where a gift is offered with the sale of merchandise the requirements of the cost and loss-leader sections must be applied separately to the gift.It is obvious that if the state is right section 100.30(2)(j), Stats., in combination with sec. 100.30(3), Stats., prohibits the offering of a gift of merchandise in connection with or contingent upon the sale of other items, because separately considered the giving of a gift is always a sale below cost under the definitions of section 100.30(2) and every such gift therefore...
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