Hicks v. Bekins Moving & Storage Co.

• Decision Date: 19 January 1937
• Docket Number: No. 8247.,8247.
• Citation: 87 F.2d 583
• Parties: HICKS v. BEKINS MOVING & STORAGE CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.2d 583 (1937)

HICKS v. BEKINS MOVING & STORAGE CO. et al.

No. 8247.

Circuit Court of Appeals, Ninth Circuit.

January 19, 1937.

Moore, Fullerton & Moore, of Seattle, Wash., for appellant.

Karr & Gregory, Day Karr, Payne Karr, and Howard Tuttle, all of Seattle, Wash., for appellee Bekins Moving & Storage Co.

Vanderveer & Bassett, of Seattle, Wash., for all other appellees.

Before WILBUR, MATHEWS, and HANEY, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant brought this action against appellees under section 4 of the Clayton Act of October 15, 1914, c. 323, 38 Stat. 731 (15 U.S.C.A. § 15), to recover threefold damages for injuries alleged to have been sustained by reason of a combination or conspiracy in violation of the Sherman Anti-Trust Act of July 2, 1890, c. 647, 26 Stat. 209, 210 (15 U.S.C.A. §§ 1-7, 15 note). The amended complaint (hereinafter called the complaint) is in two counts stating or purporting to state two causes of action. The first is for damages alleged to have been sustained by K. H. Mesharer, whose cause of action was assigned to appellant. The second is for damages alleged to have been sustained by appellant himself. The District Court sustained demurrers to the complaint and to each count thereof and (appellant having declined to plead further) entered a judgment of dismissal. This appeal followed.

Each count of the complaint alleges that appellant's assignor, Mesharer, was "engaged in the business of interstate commerce as a common carrier and contract hauler from State to State"; that appellee Bekins Moving & Storage Company (hereinafter called the Bekins Company) was engaged in the business of moving, warehousing, and storing household goods, furniture, and other personal property, and in the business of transporting such goods, furniture, and other property from state to state; that appellee Teamsters, Chauffeurs and Helpers Union of Seattle, No. 174 (hereinafter called the Union), is an unincorporated association; that at all times mentioned in the complaint appellees Beck, De Moss, McEwen, Bowen, Brewster, Onstott, and Burnett constituted and do now constitute the executive board of the Union; and that appellee Claude P. O'Reilly was and is the business manager of the Union and is the husband of appellee Pearl H. O'Reilly.

Each count alleges that on December 30, 1932, appellant "delivered to and left with" the Bekins Company certain household goods, furniture, and other personal property (hereinafter called appellant's property), to be stored and kept for appellant in the Bekins Company's warehouse at Seattle, Wash., for a consideration of $12 a month, and to be redelivered to appellant on request; that on June 1, 1935, appellant and Mesharer entered into a contract whereby Mesharer agreed, for a consideration of $400, to transport appellant's property from Seattle, Wash., to Wilkes-Barre, Pa.; that, pursuant to said contract, Mesharer sent two of her employees, with a motor truck, to the Bekins Company's warehouse in Seattle, with instructions from her and authority from appellant to demand and receive delivery of appellant's property; and that her said employees did on June 28, 1935, demand of the Bekins Company delivery of said property, so that it might be transported from Seattle to Wilkes-Barre as provided in said contract.

Each count further alleges that prior to June 28, 1935, appellees had "entered into a combination and conspiracy among themselves the object of which was to prevent the movement of household goods, furniture and other personal property from the warehouses of the Bekins Company out of Seattle and through the State of Washington in interstate commerce in vans or motor trucks other than vans or motor trucks manned and operated by duly affiliated members of the Union"; that "said combination and conspiracy was in existence and full force and effect" on June 28, 1935; that by reason of said combination and conspiracy, the Bekins Company "endeavors to and does prohibit and prevent the movement of any such personal property from its said Seattle warehouse to any point within or without the State of Washington in any except its own motor trucks, vans and lift vans or those operated by its own union employees as aforesaid, thereby interfering with and restraining interstate commerce"; and that pursuant to said combination and conspiracy, the Union "endeavors to and does prohibit and prevent any of its members, not employees of the Bekins Company from using their own motor trucks or operating the motor trucks of others in the movement of household goods, furniture and other personal property from the warehouse of the Bekins Company in interstate commerce or otherwise, thereby intending to interfere with and restrain interstate commerce."

Each count further alleges that, pursuant to said combination and conspiracy, the Bekins Company, on June 28, 1935, refused to deliver appellant's property to Mesharer's employees, they not being members of the Union, and said employees were then and there threatened by members of the Union with "bodily harm" should they attempt to remove said property, and were thereby prevented from obtaining possession of said property and from transporting it from Seattle, Wash., to Wilkes-Barre, Pa.; and that all of the acts complained of were contrary to the provisions of the Sherman Anti-Trust Act (15 U.S.C. A. §§ 1-7, 15 note).

The first count alleges that, by reason of the acts complained of, Mesharer was prevented from earning and collecting the sum which was to have been paid her for transporting appellant's property from Seattle to Wilkes-Barre and was obliged to incur other losses and expenses, being thereby damaged in the aggregate sum of $647.73, and that her cause of action was assigned to appellant on December 12, 1935. The second count alleges that, by reason of said acts, appellant was obliged to pay additional storage charges and to incur other losses and expenses, being thereby damaged in the aggregate sum of $2,004.60.

The first ground of demurrer is that appellant has no legal capacity to sue. This contention is here urged only as to the first count, which, as previously stated, is based on a cause of action assigned to appellant by Mesharer, who is alleged to have been damaged by a violation of the Sherman Anti-Trust Act. Appellees contend that such an action is one to recover a penalty, and that such a cause of action does not survive the death of the injured party and, therefore, is not assignable. This contention must be rejected. An action to recover damages resulting from a violation of the Sherman Anti-Trust Act is not an action to recover a penalty. Chattanooga Foundry & Pipe Works v....