Paul v. Wadler's Cash & Carry, Inc.

CONLEY, P. J. This is an appeal from a judgment of nonsuit. The Director of Agriculture attempted to enforce the Milk Stabilization Law, division 6, chapter 17, of the Agricultural Code (Agr. Code, §§4256 and 4410, subd. (c)), and Stanislaus County Order No. 57 by filing a complaint alleging five causes of action against Wadler’s Cash & Carry, Inc. and Herman H. Wadler; the latter’s liability was based upon the allegation that the corporation was his alter ego. In the first four causes of action, it was alleged that during the months of November and December 1962, the defendants on four separate occasions sold a half gallon of fluid milk containing less than 4.2 per cent milk fat to E. L. Ranck for $0.51 and later paid to him $0.10 when he returned each empty half-gallon container to the particular store of defendant where the purchase had been made, thus, violating the minimum price of $0.46 for each half gallon. In each of these causes of action, it was claimed that the defendant had violated section 4361 of the Agricultural Code and hence had become liable to plaintiff for a civil penalty of $500 as provided in section 4410, subdivision (e), of the same code.

The complaint correctly set forth that Stanislaus County Order No. 57 relative to the minimum wholesale and retail prices for fluid milk was effective April 1, 1962, within an area designated as the Stanislaus County marketing area, and that the order was in force within the county at the times the sales were made. A copy of the order including its schedule 1 is attached to the complaint; it shows that the minimum retail store carry-out price of a half gallon of fluid milk containing less than 4.2 per cent milk fat was $0.46.

[353]Plaintiff prayed for a total judgment of $2,000 as civil penalties for the four violations alleged in the first four causes of action and in the fifth cause of action asked for a permanent injunction restraining defendants from violating the minimum price schedule in the future.

After the plaintiff rested, the defendants moved for a nonsuit which was granted. In McCall v. Otis Elevator Co., 219 Cal.App.2d 22, 25 [33 Cal.Rptr. 44], this court clearly stated: ‘‘ On an appeal from a judgment of nonsuit the usual rules establishing the technique for the examination of the record and the decision of the case are vitally changed. In the normal appeal in a completely tried case, every intendment is in favor of the judgment, and the inquiry made by the appellate court is normally restricted to the question whether there is any substantial evidence to support the verdict or the findings of the court below. But when the appeal is from a judgment of nonsuit, the appellate court inquires, rather, whether there is substantial evidence in the record which, if believed by the finder of fact, would justify a judgment in favor of the plaintiff, and if the answer to this inquiry is affirmative, the judgment of nonsuit must be reversed. The rationale of this change of rule is obvious. It is the intention of the law that the jury, or in the absence of a jury, the court, as finder of fact, is entitled to pass upon the whole record, except in those relatively rare cases where, as a matter of law, the plaintiff has not made out a case and would not be entitled to a judgment in his favor.” (See also Chavez v. County of Merced, 229 Cal.App.2d 387, 389 [40 Cal.Rptr. 334]; Gordon H. Ball, Inc. v. Parreira, 214 Cal.App.2d 697, 702-703 [29 Cal.Rptr. 679]; Reynolds v. Willson, 51 Cal.2d 94, 99 [331 P.2d 48] ; Seneris v. Haas, 45 Cal.2d 811, 821 [291 P.2d 915, 53 A.L.R.2d 124] ; Palmquist v. Mercer, 43 Cal.2d 92, 95 [272 P.2d 26].)