Foster v. Shubert Holding Co.

• Decision Date: 06 June 1944
• Citation: 316 Mass. 470,55 N.E.2d 772
• Parties: FOSTER v. SHUBERT HOLDING CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 470

55 N.E.2d 772

FOSTER

v.SHUBERT HOLDING CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1944.

Bill by Frank B. Foster against Shubert Holding Company and others, charging defendants with creating and maintaining a monopoly at common law and in violation of state anti-trust statute. From a decree sustaining demurrers of defendants and dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Hammond, Judge.

Before FIELD, C. J., and QUA, RONAN, and WILKINS, JJ.

G. L. Rabb, of Boston, for plaintiff.

C. Hamilton, of Boston, for Shubert Holding Co.

H. W. Cole, of Boston, for Herrick's, Inc.

RONAN, Justice.

The plaintiff, a licensed dealer in the business of reselling tickets to theatrical and other public amusements, brings this bill of complaint in which he alleges that all the defendants except the defendant Herrick's Inc., hereafter called Herrick, are ‘engaged in the business of maintaining theatres producing theatrical performances' and control nearly ninety per cent of all the theatres in Boston producing stage plays; that Herrick is engaged in the ticket selling business; that all the defendants are dominated and controlled by the defendant Select Theatres Corporation, hereafter called Select; that in consequence of such control and domination all the defendants are acting in accordance with an agreement ‘to control the resale of tickets of admission to the above mentioned performances, and have created a monopoly in the same, which combination, arrangement and agreement has resulted in a practice whereby the supply and price of said tickets of admission are restrained or prevented and whereby the free pursuit of the plaintiff's business is unreasonably restrained and prevented and the public is prejudiced, all in violation of General Laws, Chapter 93, Section 2 and the common law.’

The plaintiff further alleges that beginning in April, 1939, he was required to purchase tickets from Herrick provided he agreed to resell them at a price in advance of that permitted by G.L.(Ter.Ed.) c. 140, § 185D; that shortly prior to filing the bill of complaint, Herrick had established a place of business near that of the plaintiff and Herrick has since refused to sell tickets to the plaintiff in accordance with the practice in use in April, 1939; and that all the other defendants continue to sell tickets to Herrick and ‘refuse to sell tickets for resale in the same manner to the plaintiff.’ Upon information and belief it is alleged that the defendants have agreed among themselves to discriminate against the plaintiff, to refuse to sell him tickets for resale, to make it impossible for him to continue in business, to force him out of business, and to bring about his financial ruin.

The bill also alleges that the defendant Select, its officers and principal stockholders, and all the other defendants have a financial interest in Herrick in violation of G.L.(Ter.Ed.) c. 140, § 185A, as amended by St.1941, c. 247.

It is finally alleged that it is the intent and purpose of the defendants to stifle and prevent fair competition in the resale of theatre tickets and to drive the plaintiff out of business, which ‘necessarily prejudices the public and unduly, unreasonably and exorbitantly profits the defendants.’ The plaintiff appealed from decrees sustaining the demurrers of the defendants and dismissing the bill.

The plaintiff contends that the bill sets forth the creation and maintenance by the defendants of a monopoly at common law and in violation of G.L.(Ter.Ed). c. 93, § 2, the State anti-trust statute. The modern concept of a monopoly is a combination or organization which has acquired a position of such dominating influence in a particular branch of trade or commerce that it has a tendency to suppress competition, to regulate supply and to fix prices, all to the detriment of the public, in respect to some commodity which the people must have in order to satisfy an essential need of ordinary living. United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 480, 99 N.E. 289, Ann.Cas.1913D, 715;Commonwealth v. Dyer, 243 Mass. 472, 486, 138 N.E. 296;Robitaille v. Morse, 283 Mass. 27, 33, 186 N.E. 78. The statute, cl. 93, § 2, does not apply to all combinations or agreements that are contrary to the common law, but applies only to those that create or maintain a monopoly in the manufacture, production, transportation, or sale in this Commonwealth of an article or commodity in common use, or that restrain or prevent competition in this Commonwealth in the supply or price of such article or commodity, or that restrain or prevent the free pursuit in this Commonwealth of any lawful business, trade or occupation for the manufacture, production, transportation or sale of such article or commodity. Commonwealth v. North Shore Ice Delivery Co., 220 Mass. 55, 107 N.E. 402;Quincy Oil Co. v. Sylvester, 238 Mass. 95, 130 N.E. 217, 14 A.L.R. 111;Berenson v. H. G. Vogel Co., 253 Mass. 185, 148 N.E. 450;Keith v. Heywood Boot & Shoe Co., 255 Mass. 321, 151 N.E. 309. The question arises whether tickets of admission to public theatrical performances are articles of necessity within the common law concept of a monopoly or whether they are articls or commodities in common use within the terms of s. 2. Such a ticket is a mere personal privilege permitting one to witness a public performance and is revocable at the will of the proprietor of the theatre, Burton v. Scherpf, 1 Allen 133,79 Am.Dec. 717;Opinion of the Justices, 247 Mass. 589, 143 N.E. 808;Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679, 43 L.R.A., N.S., 961; People v. Flynn, 189 N.Y. 180, 82 N.E. 169,12 Ann.Cas. 420, and the proprietor is not bound to admit everybody who presents a ticket-apart from discrimination on account of race or color forbidden by G.L.(Ter.Ed.) c. 272, § 98, as amended by St.1934, c. 138-Stager v. G. E. Lothrop Theatres Co., 291 Mass. 464, 197 N.E. 86;Woollcott v. Shubert, 217 N.Y. 212, 111 N.E. 829, L.R.A.1916E, 248, Ann.Cas.1916B, 726, and he may attach reasonable restrictions in the use of the tickets and refuse admission to those who pay more than the price printed upon the ticket or who purchase them from a ticket broker or speculator. Purcell v. Daly, 19 Abb.N.C. 301.Collister v. Hayman, 183 N.Y. 250, 76 N.E. 20, 1 L.R.A.,N.S., 1188, 111 Am.St.Rep. 740,5 Ann.Cas. 344;Harris v. Jack's Theatre Ticket Service, Inc., 139 Misc. 111, 246 N.Y.S. 396;Levine v. Brooklyn National League Baseball Club, Inc., 179 Misc. 22, 36 N.Y.S.2d 474;Finnesey v. Seattle Baseball Club, Inc., 122 Wash. 276, 210 P. 679, 30 A.L.R. 948. It has been said that witnessing a theatrical performance is not a necessity of life. People v. Thompson, 283 Ill. 87, 119 N.E. 41, L.R.A.1918D, 382;People v. Klaw, 55 Misc. 72, 89,106 N.E. 341. Theatre tickets, however, are articles in common use, and the statute, section 2, specifically includes articls in common use. People v. Epstean, 102 Misc. 476, 170 N.Y.S. 68. It was held in Merchants Legal Stamp Co. v. Murphy, 220 Mass. 281, 107 N.E. 968, L.R.A.1915D, 520, that trading stamps and trading stamp books were articles within the statute. There is, of course, a great difference between theatre tickets and trading stamps. In view of the conclusion we reach, we assume in favor of the plaintiff, without deciding, that tickets are articles within the statute.

It is a general rule of pleading that one who asserts a claim that he was injured through the establishment and maintenance of a monopoly either at common law or under a statute must set forth definitely and specifically the substance of the agreement which he asserts the defendants have entered into or the plan or scheme which the defendants have adopted, the several acts performed by the defendants, the effect of such acts upon the plaintiff or his business, and the resulting damage to the public, in order that the court may determine from the facts alleged whether a monopoly at common law or in violation of the statute has been properly alleged with the result that, if the facts were proved, the plaintiff would be entitled to prevail. It is not sufficient to allege the existence of a monopoly or merely to repeat the words of a statute or to recite mere conclusions of the pleader. Conclusions of fact unless they are necessary inferences from the particular facts alleged are not admitted by a demurrer. Johnson v. East Boston Savings Bank, 290 Mass. 441, 195 N.E. 727;Comerford v. Meier, 302 Mass. 398, 19 N.E.2d 711;Thompson v. Spagnuolo, 311 Mass. 597, 42 N.E.2d 498;Robichaud v. Owens-Illinois Glass Co., 313 Mass. 583, 48 N.E.2d 672;Becker v. Calnan, 313 Mass. 625, 630, 631, 48 N.E.2d 668;Alexander Milburn Co. v. Union Carbide & Carbon Corp., 3 Cir., 15 F.2d 678.Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir., 72 F.2d 885.Powell v. Graham, 183 Wash. 452,48 N.E.2d 952. It was said in Neustadt v. Employers' Liability Assurance Corp., Ltd., 303 Mass. 321,...