Giusti v. Pyrotechnic Industries

• Decision Date: 07 August 1946
• Docket Number: No. 11189.,11189.
• Citation: 156 F.2d 351
• Parties: GIUSTI v. PYROTECHNIC INDUSTRIES, Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F.2d 351 (1946)

GIUSTI v. PYROTECHNIC INDUSTRIES, Inc., et al.

No. 11189.

Circuit Court of Appeals, Ninth Circuit.

June 27, 1946.

Rehearing Denied August 7, 1946.

Chellis Carpenter, of San Francisco, Cal., for appellant.

Gregory, Hunt, Melvin & Faulkner, Harold C. Faulkner, and Robert Beale, all of San Francisco, Cal., for appellees.

Before DENMAN, BONE and ORR, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment dismissing the complaint below as to appellee Triumph Fusee & Fireworks Company, a corporation, hereinafter called Triumph, and an order quashing the service of a summons on the Secretary of State of the State of California as the claimed agent of Triumph.

The complaint¹ alleged that appellant at all relevant times was engaged in the business of buying and selling fireworks in the State of California. Triumph, a Delaware corporation, is an association of fireworks manufacturing corporations composed of the other defendants below, a New York, Arizona, Massachusetts, Connecticut, New Jersey, two Maryland, and several California corporations, producing approximately 85% of the total production of fireworks in the United States. All are engaged in interstate commerce in fireworks, and prior to the charged combination to fix the price of fireworks were in competition with one another. Triumph and these other corporations are charged with combining to perform and performing on or about the 12th day of April, 1935, the following acts:

"(a) Agreed to fix and maintain, and have fixed and maintained, uniform prices in the sale of fireworks to jobbers of fireworks in the United States to the particular grave damage and detriment of the plaintiff.

"(b) Agreed to fix and maintain and have fixed and maintained, uniform discounts in the sale of fireworks by manufacturers to jobbers of fireworks in the United States to the particular grave damage and detriment of the plaintiff.

"(c) Agreed to fix and maintain, and have fixed and maintained uniform prices and discounts at which jobbers of fireworks should sell to retailers in the United States to the particular grave damage and detriment of the plaintiff.

"(d) Agreed to designate, and have so designated, what concerns or individuals should and/or should not be sold by manufacturers of fireworks as jobbers to the particular grave damage and detriment of the plaintiff.

"(e) Organized and held meetings of groups of fireworks jobbers in various parts of the United States according to the particular subdivisions of the United States in which they were situated, to devise means of asserting influence, pressure, coercion, and other means of inducing, requiring and coercing these fireworks jobbers to abide by and adhere to the agreements, combinations and conspiracies of the defendants to the particular grave damage of the plaintiff.

"(f) Procured promises and agreements from various jobbers of fireworks in the United States pursuant to those acts in paragraph (e) as above, to the particular grave damage and detriment of the plaintiff.

"(g) Maintained the continuance of all those acts mentioned in paragraphs (a), (b), (c), (d), (e), and (f), as above, by diverse methods of policing manufacturers, jobbers, and retailers of fireworks in the United States, to the particular grave damage and detriment of the plaintiff.

"(h) Agreed to compile and maintain lists, and have compiled and maintained lists of those concerns which should be, and are, recognized as chain stores which are allowed certain special discounts from the defendants in addition to those granted other purchasers to the particular grave damage and detriment of the plaintiff.

"(i) Agreed to fix and maintain and have fixed and maintained minimum retail prices of fireworks throughout the United States to the particular grave damage and detriment of the plaintiff.

"(j) Agreed to refuse to sell, and have refused to sell, fireworks to certain concerns, thus boycotting said concerns and cutting off or seriously impairing their supply of fireworks."

The complaint continues, concerning further acts of the conspirators extending over six months' time

"That on or about January 15, 1936, said defendants pursuant to said agreements, combinations and conspiracies, caused to be organized an association of those defendants which are sued herein under their true names as had Pacific Coast establishments; that said association was known as the Pacific Coast Fireworks Distributing Association, and held meetings at San Francisco between January 15, 1936, and January 30, 1936; that at one of said meetings the association adopted a resolution wherein it was resolved that the association contact all eastern manufacturers of fireworks, for the purpose of preventing any further sale of fireworks to plaintiff or his agent; that within six months thereafter, as plaintiff is informed and believes and accordingly alleges, said association had contacted not only such eastern manufacturers, but also all fireworks manufacturers in the United States, and had requested that plaintiff be blacklisted by each of them; that at all times thereafter plaintiff, * * * was unable to purchase any fireworks for his said business, all to plaintiff's damage in the sum of Fifty Thousand Dollars ($50,000.00)."

On December 7, 1943, Triumph filed in the office of the Secretary of State of California its Certificate of Withdrawal from Intra-State Business in California, under the provisions of Section 411 of the Civil Code of the State of California, which Certificate stated, among other matters, in accordance with that Code requirement "That said defendant consents that process against it in any action upon any liability or obligation incurred within this State prior to the filing of the Certificate of Withdrawal may be served upon the Secretary of State."

Appellant served upon the Secretary of State of California a copy of his complaint and the summons thereon issued by the District Court. On Triumph's motion, the District Court quashed the service of the summons and dismissed the complaint as to Triumph.

Triumph asserts this was not error, claiming (1) that under the California law the Secretary of State's agency is confined to suits upon liabilities created by Triumph only in "business transacted" by it in that state; (2) that the six months' activity of Triumph's coconspirators in destroying appellant's business for the benefit of their monopoly is not transacting business within the California law; and (3) that Triumph did nothing in California, though its coconspirators, as its agents, so destroyed appellant's California business.

We do not agree. The California law requiring foreign corporations to create an agency for acceptance of process in cases of its liability for acts committed in California before its departure from the State is stated in ...