# Canada Dry Ginger Ale, Inc. v. F & a Distributing Co. > Supreme Court of New Jersey · December 15, 1958 · 28 N.J. 444 URL: https://www.frixlaw.com/law-library/cases/9630170 ## Case - **Full name:** Canada Dry Ginger Ale, Inc., Appellant, v. F & a Distributing Co., Gillhaus Beverage Co., Inc., Merchants Wine and Liquor Co., and Division of Alcoholic Beverage Control, Respondents - **Court:** Supreme Court of New Jersey - **Decided:** December 15, 1958 - **Citations:** 28 N.J. 444; 147 A.2d 15; 1958 N.J. LEXIS 176 - **Precedential status:** Published - **Opinion:** Dissent by Waohekteeld - **Judges:** Proctor, Heher, Waohekteeld - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9630170 ## Opinion text Waohekteeld, J. (dissenting). The majority apparently encountered difficulty in interpreting the statute in question. My difficulty lies in the fact that although they find that Ganada Dry exercised absolute good faith and an informed business judgment in determining to reduce the number of its wholesalers, they nevertheless classify the company’s decision as arbitrary and discriminatory. This seems entirely inconsistent if an arbitrary act may accurately be *465 described as one which is non-rational or capricious, proceeding from a judgment untempered by reason or logic. The majority opinion recites: “* * * The executives of Canada Dry who testified, repeatedly asserted that the individual selections were the result of a good faith business decision and as such could not be viewed as arbitrary. We have no reason to doubt their credibility. * * *” (Emphasis supplied.) If the credibility of these officials is unquestioned and their selections were the result of a “good faith business decision,” then it would seem that there was no “arbitrary discrimination,” prohibited by the statute in question. Canada Dry was justified, on the basis of its success with like schemes in other sections of the country, in concluding that it would be financially advantageous to the company to drop a certain number of distributors. The determination as to which distributors would be retained was not founded on mere whim but, among other things, on Mr. LaPorte’s evaluations of the respective sales forces and their aggressiveness, the importance to each distributor of the Canada Dry line in comparison to its sales of other lines, and the attitude of the various executives of the distributors towards plans for increased advertising and expansion of sales of Canada Dry products. The criteria which the appellant’s officers used cannot be formulated in figures, but they are, nonetheless, tangible and legitimate. The statute in question was not intended to eliminate entirely the profit motive as a consideration nor was it designed to interfere with honest, reasoned business practice. I think the wholesaler who charges a violation of the statute should have the burden of proving a prima facie case, but here the majority places the burden of proof upon Canada Dry. Thus, the majority decision requires the appellant to prove a negative proposition, namely, that it did not act in an arbitrary fashion. The usual judicial procedure places the burden of proof upon the party who makes an accusation that his rights *466 have been transgressed. But that burden has been shifted to appellant because, as the majority state, “Canada Dry is in a far better position than the petitioners to know why this action was taken.” If applied generally in the realm of civil law, this reasoning would, in many instances, change the current and accepted placement of the burden of proof. And here that burden has not only been shifted to the distiller but the essence of it has been defined as “This standard must be of such a tangible or objective nature as will enable the Director to determine from the proofs whether its application to the wholesalers in question could reasonably result in the distinction which a distiller has made.” (Emphasis supplied.) The shift of the burden and the establishment of its quality are supplied by our adjudication, as the statute contains no such provisions. This is perilously close to what ordinarily would be decried as judicial legislation, which we on other occasions have lugubriously deplored. I would reverse the decision of the Director of the Division of Alcoholic Beverage Control. Eranois, J., concurring in result. For affirmance without prejudice—Chief Justice Weintraub, and Justices Burling, Jacobs, Eranois and Proctor —5. For affirmance in toto■—Justice Heoeer—1. For reversal—Justice Wacheneeld—1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9630170. Public record. Not legal advice.