Summary
In Roden and Son v. State, 30 Ala. App. 229, 3 So.2d 420, 421, Justice Simpson stated that: "A judgment in a civil case is not conclusive as res judicata in a criminal case, or vice versa, there being no mutuality of parties and a different degree of proof, respectively, being required."
Summary of this case from Helms v. StateOpinion
8 Div. 138.
June 30, 1941.
Appeal from Circuit Court, Marshall County; H.H. Conway, Special Judge.
Action by the State of Alabama against Roden Son to recover a license or privilege tax. From a judgment for plaintiff, defendants appeal.
Affirmed.
Scruggs Creel, of Guntersville, for appellants.
Admitting for the sake of argument only that the criminal proceedings were not a bar to this suit, the burden was on the State to prove its complaint, which burden it wholly failed to meet. The law defines a wholesale dealer in cigarettes. That law must be strictly construed. State v. Seals Piano Co., 209 Ala. 93, 95 So. 451; State v. New Florence Operating Co., 19 Ala. App. 194, 95 So. 913. The special finding of facts was not rendered as required by law. It was found as a fact that the sales made by defendants were not to retail merchants for resale only and there could be no judgment rendered against them. The special finding was not entered on the minutes, which requires a reversal. Code 1923, § 9500. This court must on appeal examine and determine whether the facts are sufficient to support the judgment — the facts as found by the trial court. Quillman v. Gurley, 85 Ala. 594, 5 So. 345. The only matter open for review where special finding of facts has been made is whether a proper judgment is rendered on the facts so found. Wilson v. State, 10 Ala. App. 158, 64 So. 510; Alabama Georgia Lbr. Co. v. Tisdale, 139 Ala. 250, 36 So. 618; Garrett v. Mayfield Woolen Mills, 153 Ala. 602, 44 So. 1026; Betancourt v. Eberlin, 71 Ala. 461, 464; Sayre v. Weil, 94 Ala. 466, 10 So. 546, 15 L.R.A. 544; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905; Chandler v. Crosland, 126 Ala. 176, 28 So. 420; American Ry. Express Co. v. Barnes, 18 Ala. App. 295, 91 So. 912.
Thos. S. Lawson, Atty. Gen., and W.W. Callahan, Asst. Atty. Gen., for appellee.
Acquittal of the defendants when tried for the criminal offense is no bar to the civil suit. Carlisle v. Killebrew, 89 Ala. 329, 6 So. 756, 6 L.R.A. 617; Jay v. State, 15 Ala. App. 255, 73 So. 137; 34 C.J. 970, 971; 2 Freeman on Judgments (5th Ed.) §§ 653, 654. The appellate court is required to review the trial court on the facts, notwithstanding a special finding of facts is made, and to render such judgment as the court below should have rendered. Code 1923, § 9598; Green v. Marlin, 219 Ala. 27, 121 So. 19. The finding and conclusion of the trial court on evidence taken ore tenus will not be disturbed unless plainly and palpably wrong. Hackett v. Cash, 196 Ala. 403, 72 So. 52; First Nat. Bank v. Kirkland, 27 Ala. App. 141, 167 So. 334.
Appellee sued appellants below for recovery of the privilege license due under Schedule 33, Section 348, Article XIII, Chapter 1, of the State Revenue Act — General Acts, Regular Session 1935, p. 451, Code 1940, Tit. 51, § 485. The schedule stipulates: "Schedule 33. Each wholesale dealer in cigars, cheroots, stogies, cigarettes, smoking tobacco, chewing tobacco, snuff or any substitute therefor, either or all, shall pay one privilege to the State of One Hundred Dollars ($100.00), and Five Dollars ($5.00) to each county in which such wholesale dealer does business. The phrase 'wholesale dealer' as used in this Schedule shall include persons, firms, corporations, clubs, or associations who shall sell and/or store, or offer to sell any one or more of the articles enumerated herein to retail dealers for the purpose of resale only. The privilege license herein levied shall be in addition to the sales tax as provided in Schedule 159." (Our italics.)
Trial without a jury resulted in judgment against the appellants, hence the appeal.
We interpret the brief and argument supporting this appeal as mainly insisting that the evidence was not sufficient to justify rendition of the judgment below. This court entertains a contrary view.
The evidence is without substantial controversy that appellants sold or offered for sale at wholesale to retail dealers (who sold at retail), some or all of the tobacco products listed in the schedule, without having procured the license required in the schedule. The tendencies of the evidence and the reasonable inferences thereof support the conclusion of the trial judge that appellants' firm was a "wholesale dealer" within the meaning of the schedule, and this irrespective of whether certain of its customers purchased some of the articles for individual consumption. The proven facts fully support the right of recovery under the schedule. The italicized phrase therein "for the purpose of resale only" evinces no legislative intent to relieve such wholesale dealer from liability for the license because, perhaps, as an incident to his business he might sell certain of the articles listed in the schedule to customers who might use some of them individually. Such a hypercritical construction, though ingenious, is unwarranted. If appellants sold the articles at wholesale to dealers who retailed them to the public (as was here proved), the license is due, notwithstanding the retail dealer might have consumed some of the articles personally, and despite the fact that others might have bought from the wholesaler for individual consumption. Liability under the statute attaches when the wholesaler shall (quoting the statute) "sell and/or * * * offer to sell" the enumerated articles to retailers who purpose to and do resell them to their customers.
Appellants insist that the special findings of fact by the court (duly requested) are lacking in form and substance. Under the rule now prevailing, the question seems unimportant, since previous holdings have pointed out that a special finding serves little or no useful purpose, the duty now devolving upon the appellate court to review the trial court on the facts, notwithstanding a special finding. Green v. Marlin, 219 Ala. 27, 121 So. 19; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905. And where, as here, the undisputed evidence discloses the plaintiff's right to recover, such error — if it be — was harmless. Edwards v. Louisville N.R. Co., 202 Ala. 463, 80 So. 847.
The appellants had been previously tried and acquitted upon the criminal charge of violating the above schedule of the license act, for failing to procure the proper wholesale dealer's license. In the present case, a plea of res adjudicata was interposed to the complaint asserting this fact as a defense to the present action. Appropriate demurrers to this plea were properly sustained. While the assignment of error in this regard is not sufficiently argued to invite a review, — Supreme Court Rule 10, Code 1940, Tit. 7, Appendix; 2 Alabama Digest, Appeal Error, 1079; Powell v. Pate, ante, p. 10, 1 So.2d pages 36, 38, — the question is easily disposed of adversely to the contention of the appellants by application of the general principle (subject to recognized exceptions not here applicable) that a judgment in a civil case is not conclusive as res judicata in a criminal case, or vice versa, there being no mutuality of parties and a different degree of proof, respectively, being required. Jay v. State, 15 Ala. App. 255, 73 So. 137; Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387; Sovereign Camp, W.O.W. v. Gunn, 227 Ala. 400, 150 So. 491; Fidelity-Phenix, etc., Co. v. Murphy, 231 Ala. 680, 166 So. 604; Helvering, Com'r of Int. Rev. v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917.
We ascertain no error substantially argued as will authorize a reversal of the judgment. Affirmance thereof is accordingly due. So ordered.
Affirmed.