Fort Wayne Cleaners and Dyers Ass'n v. Price
| Citation | 137 N.E.2d 738,127 Ind.App. 13 |
| Decision Date | 01 November 1956 |
| Docket Number | No. 18802,18802 |
| Parties | The FORT WAYNE CLEANERS AND DYERS ASSOCIATION, Inc., Victor Townsend, Leonard Walters, Vernon C. Vice, Paul E. Lerch, William B. Leggett, Appellants, v. Glenn R. PRICE, Paul Casper, Curtis Rouch, George A. Pring, Robert Lee, Appellees. |
| Court | Court of Appeals of Indiana |
James P. Murphy, C. A. Lincoln, J. Byron Hayes, Fort Wayne, for appellants.
J. A. Bruggeman, Barrett, Barrett & McNagny, Wm. F. McNagny, Fort Wayne, for appellees.
Glenn R. Price, appellee herein, plaintiff below, brought this action for damages, alleging conspiracy and acts constituting restraint of trade on the part of appellants, praying for damages sustained, together with three-fold penalty, pursuant to the provisions of Acts 1907, ch. 243, § 7, together with costs and attorney fees; that the appellants be temporarily and permanently enjoined and restrained from fixing prices for the dry-cleaning business of Fort Wayne and from interfering with appellees' employees and preventing the appellee from fixing his prices for his drive-in cleaning establishment.
Trial by court. Judgment rendered in favor of appellee for $13,475 and a permanent injunction against the appellants.
The appellants filed a joint and several demurrer contending that the amended complaint did not state facts sufficient to constitute a cause of action which was overruled by the trial court.
New trial motion contends that the decision of the trial court is not sustained by sufficient evidence and is contrary to law; that the damages assessed by the court are excessive.
The Assignment of Errors are (1) Alleged error in overruling the separate and several demurrers to appellees' amended complaint, and (2) Overruling of appellants' motion for new trial.
The appellants consist of the Fort Wayne Cleaners and Dyers Association, Incorporated, an Indiana, non-profit corporation, and certain individuals as officers and trustees charged as such with directing the business affairs of the Association who had participated in the alleged plan as charged by appellees of conspiring together to destroy his business. Most all of the dry cleaners in the area belonged to the Association. At one time, appellee Smith belonged, but, upon failure to pay dues, was dismissed.
For a thorough understanding of the issues, we set out certain rhetorical paragraphs of the amended complaint to which the demurrer was addressed:
'4. All the defendants hereinabove named have been and now are in a wrongfull and illegal conspiracy to establish, maintain and enforce an arbitrary, unreasonable and agreed upon program and policy relating to the operation of the dry cleaning business in the City of Fort Wayne, Indiana, and said conspiracy has been formed for the purpose and with the intent of unlawfully and unreasonably eliminating, restricting and preventing competition in the dry cleaning business in and about the City of Fort Wayne, and of fixing prices to the general detriment of the public and this plaintiff. Said conspiracy so agreed upon by the defendants has been accomplished and carried out by the defendants and persons acting under their instructions and directions, and on their behalf by diverse methods, means, agreements and actions hereinafter more particularly described.
'5. In the summer of 1948, the plaintiff constructed a new and modern dry cleaning plant at 1830 Maumee Avenue in the City of Fort Wayne, in the midst of the small shopping center, including a Kroger store, a service station and a Miller's icecream store. This plant was so constructed that it could be profitably operated on a cash-and-carry basis, thereby reducing the cost of dry cleaning to the public, for such service can be furnished to the public for a lower price when customers bring their own goods in for dry cleaning and pay the charges upon receipt of the cleaned clothes than when the cleaner must incur the additional costs of calling for and delivering the clothes.
'6. In November of 1950, the plaintiff proposed to the defendants that price differential should be established between a cash-and-carry service and a service including delivery of the merchandise, but they refused to approve any such differential.
'7. Early in 1952, the plaintiff notified the defendant corporation and its president, the defendant Victor B. Townsend, that effective March 3, 1952, he would give a discount of 10 per cent on the regular price charged by the members of the said corporation for dry cleaning in Fort Wayne, in order to reimburse his customers for their time and trouble in bringing in and calling for their clothes. Upon receiving such notice, the defendant Victor B. Townsend advised the plaintiff that he should not give such a discount and a few days later, the plaintiff's membership in the defendant corporation was cancelled for nonpayment of dues.
'8. Thereafter, other members of the defendant corporation and persons acting on its behalf and on behalf of the individual defendants attempted to dissuade the plaintiff from giving this discount to his customers and advised him that if anything happened to him or his plant, he should not blame all of the members because they all did not believe in that kind of stuff.
'10. On February 29, 1952, the plaintiff signed a contract and made a downpayment for spot announcements on Radio Station WKJG. On March 1, the contract was rejected and the representatives of said radio station refused to put the announcement on the air stating that they had the right to refuse any advertising. Plaintiff believes and, therefore, alleges that the refusal of the said advertising by the said radio station was entirely due to improper pressure applied by the defendant corporation and its members and their refusal to give any business to any advertising medium which carried the advertising of this plaintiff.
'12. By reason of the facts hereinabove alleged, the plaintiff was compelled to and did discontinue the 10 per cent discount which he had offered his customers and since discontinuing the same his shop has not been vandalized and he has been permitted to stay in business.
'15. The conspiracy and unlawful combination in restraint of trade entered into and between the defendants and perpetrated by them is intended to and does prevent the plaintiff from furnishing drive-in cleaning service to the public who desires to use the same at a price below that fixed by the defendant corporation and its members.
'16. The said defendants have agreed together and are now preventing free competition in the dry cleaning business in and about the City of Fort Wayne, Allen County, Indiana.
The basis of appellants' demurrer is that in the caption of the complaint, the appellants, other than the Association, are sued individually and that the complaint contains no allegation against them in such individual capacity; that the amended complaint is based on Title 23, § 23-116, Burns' 1933 Stat. Appellants contend that 'it is clear the complaint is not a common-law action and its sufficiency, or the resulting judgment, cannot be sustained by recourse to the common law'. Citing case of Dye v. Carmichael Produce Co., 1917, 64 Ind.App. 653, 116 N.E. 425; Knight & Jillson Co. v. Miller, 1909, 172 Ind. 27, 87 N.E. 823.
In addition to the acts alleged charging unlawful conspiracy, the amended complaint also charges:
'(19) By so confederating together and conspiring one with another, the defendants are depriving this plaintiff of the right and privilege of running his own business in his best interests and that of the public, and the defendant corporation and its members are now threatening, have threatened, and will put the plaintiff out of business if he does not meet and maintain arbitrary prices fixed by it and otherwise conform to the wishes of the members of the defendant corporation.'
It is argued that the individuals comprising the Association are engaged in a single business; that they do not own the article that they service; that they do not deal in commodities, merchandising or the like; that all they offer is their services; that dry cleaners or dyers are not tradesmen and are...
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...undoubtedly would be actionable under the Indiana general restraint of trade statutes. 59. Fort Wayne Cleaners & Dyers Ass’n v. Price, 137 N.E.2d 738 (Ind. App. 1956). 60. IND. CODE § 24-1-1-1. 61. See, e.g. , State ex rel. Snyder v. Portland Natural Gas & Oil Co., 53 N.E. 1089 (Ind. 1899) ......
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