Feddersen Motors v. Ward, 3940.

• Decision Date: 06 March 1950
• Docket Number: No. 3940.,3940.
• Citation: 180 F.2d 519
• Parties: FEDDERSEN MOTORS, Inc. v. WARD et al.
• Court: U.S. Court of Appeals — Tenth Circuit

180 F.2d 519 (1950)

FEDDERSEN MOTORS, Inc. v. WARD et al.

No. 3940.

United States Court of Appeals Tenth Circuit.

March 6, 1950.

S. Robert Houtchens, Greeley, Colo., for appellant.

Stanley H. Johnson, Denver, Colo., for appellees Fred Ward, Inc. and Fred Ward.

Joseph G. Hodges, Denver, Colo. (William V. Hodges, Denver, Colo., Richard W. Larwin, Detroit, Mich., Hodges, Vidal & Goree, Denver, Colo., and Beaumont, Smith & Harris, Detroit, Mich., on the brief), for appellee Hudson Motor Car Co.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

This appeal challenges a judgment of the United States Court for Colorado dismissing an action instituted by Feddersen Motors, Inc., against Hudson Motor Car Company, Fred Ward, Inc., and Fred Ward to recover treble damages for alleged violations of the Anti-Trust Act, as amended, 15 U.S.C.A. § 1 et seq. The action was dismissed for failure of the complaint to state a cause of action for which relief could be granted under the Act. For convenience, reference will sometimes be made to the parties as plaintiff and defendants, and sometimes as Feddersen, Hudson, Ward, and Fred Ward, respectively.

It was alleged in the complaint that Hudson was engaged at Detroit, Michigan, in the business of manufacturing Hudson automobiles and shipping them in interstate commerce to dealers located throughout the country; that Ward was the distributor for Hudson automobiles in the Denver, Colorado, district; that Ward and Fred Ward operated as a retail outlet for such automobiles in the City and County of Denver; that Ward was the agent of Hudson and was under its supervision and control; that Fred Ward owned or controlled all of the captial stock of Ward and exercised complete control of its management, purposes, policies, and business practices; and that from about January 1, 1946, to July 31, 1948, Feddersen was a Hudson Master Dealer at Greeley, Colorado, under the control of the defendants. It was further alleged that defendants formed a combination and conspiracy in restraint of interstate commerce; and that they conspired to do all of the acts and things and to use all means necessary and appropriate to make such restraint effective, as thereinafter more particularly alleged. It was further alleged that defendants conspired together and with others unknown to plaintiff, to force plaintiff out of business as a dealer in new Hudson automobiles by terminating and cancelling or threatening to terminate and cancel the dealer franchise contract of plaintiff and others unless plaintiff and others would sell new Hudson automobiles above ceiling prices during the time such prices were in existence; unless plaintiff maintained a business establishment equipped to handle and service one hundred and twenty-five new Hudson automobiles annually, defendants at the same time failing, neglecting, and refusing to deliver to plaintiff its fair share of Hudson automobiles; or if plaintiff operated a business side line at its business establishment, at the same time permitting other like dealers to have and operate side lines; and that all of such acts forced an increase in the unit cost of new Hudson automobiles delivered to plaintiff, and were promotive of monopoly in that particular line of commerce. It was further alleged that defendants had repeatedly discriminated between plaintiff and other purchasers in the prices of new automobiles; that the effect of such discrimination was substantially to lessen competition or tend to create a monopoly in the distribution of new Hudson automobiles in commerce, or to injure, destroy or prevent competition with other Hudson Master Dealers. It was further alleged that defendants had discriminated against plaintiff and in favor of other like dealers in new automobiles by furnishing to other dealers services and facilities connected with the sale, offering for sale, and handling new Hudson automobiles but not furnishing like services and facilities to plaintiff on proportionally equal terms, and by requiring plaintiff to maintain and operate a business establishment which was not commensurate with the volume of business defendants permitted plaintiff to do; that the result of such discrimination was that new automobiles delivered to plaintiff cost plaintiff more than like automobiles cost its competitors in the vicinity of Greeley; that defendants discriminated against plaintiff and in favor of its competitors by granting to its competitors discounts, rebates, allowances, and preferences over and above those allowed plaintiff; and that for the purpose of destroying competition within the boundaries of the Denver distributorship and of eliminating plaintiff as a competitor in retail sales of Hudson automobiles, defendants had sold or contracted to sell new Hudson automobiles in various parts of Colorado at prices lower than exacted of plaintiff. And it was further alleged that plaintiff was engaged in interstate commerce together with defendants, and that the effect of the unlawful acts, policies, and practices of defendants was to burden, obstruct, and unduly restrain interstate commerce, and to damage plaintiff and its business.

At the request of Feddersen, the court required Hudson to file in the case a copy of a written distributor sales agreement between Hudson...