Hurt v. Brandt

• Decision Date: 24 May 1923
• Citation: 37 Idaho 186,215 P. 842
• Parties: BRADFORD HURT, Appellant, v. H. H. A. BRANDT et al., Respondents
• Court: Idaho Supreme Court

215 P. 842

37 Idaho 186

BRADFORD HURT, Appellant, v. H. H. A. BRANDT et al., Respondents

Supreme Court of Idaho

May 24, 1923

ANTI-TRUST LAW-THREEFOLD DAMAGES-COMPLAINT-SUFFICIENCY OF.

In an action to recover threefold damages sustained by him for a violation of the anti-trust law, plaintiff must not only allege sufficient facts to show a violation of the law by the defendants, but it must appear that, by reason of such violation of the law by the defendants, plaintiff has been injured in his business or property.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.

Appeal from a judgment of dismissal. Affirmed.

Judgment affirmed. Costs to respondents.

S. T Schreiber, for Appellant.

Pending the trial of an action, the court has power, upon such terms as may be just, to permit a second amended complaint to be filed, which embodies substantially the same allegations as the original complaint. (Riverside Land Co. v Jensen, 73 Cal. 550, 15 P. 131.)

Where the facts stated in the complaint constitute a sufficient cause of action, other unnecessary matter may be stricken but an entire pleading cannot be stricken out as irrelevant or redundant. (Benedict v. Dake, 6 How. Pr. (N. Y.) 352; Jackson v. Lebar, 53 Cal. 255.)

C.S., secs. 2531 and 2532, describe the scope of the act, and this action being for damages to the plaintiff by reason of the violation of the act by the defendant, it is only necessary to support an action under the act that complainant's business or property has in some way been injured by reason of defendant's illegal scheme. (Monarch Tobacco Co. v. American Tobacco Co., 165 F. 774.)

Plaintiff must be given liberal latitude under the act. (Ware Kreamer Tobacco Co. v. American Tobacco Co., 178 F. 117; Buckeye Powder Co. v. Dupont Powder Co., 196 F. 514.)

The contracts, combinations, etc., in restraint of trade or commerce which are declared to be illegal by the act, include all contracts, etc., operating to restrain trade or commerce whether legal or illegal at common law or whether the restraint is reasonable or unreasonable. (United States v. Trans-Missouri F. Assn., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007, and note; United States v. United States Steel Co., 223 F. 55.)

The system and scheme established and put in force by the defendants controlled the entire issue of stock in the Monumental Mercury Mining Company, and is necessarily a general restraint of trade in the stock of said corporation and therefore illegal. (Oliver v. Gidmore, 52 F. 562; Miles Medical Co. v. John Parks & Son, 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502.)

The second amended complaint stated a cause of action under the law and the court had no right to strike it from the files by reason of any pleading, motion or suggestions made by the respondents. They not having filed a demurrer, the complaint to be had must be wholly insufficient; if to any extent, on any reasonable theory, it presents facts sufficient to justify a recovery, it will be sustained. (21 R. C. L. 466.)

S. L. Tipton and Gustave Kroeger, for Respondents.

The pooling of stock is not unlawful. (Weber v. Della Mountain Mining Co., 14 Idaho 404, 94 P. 441.)

Under the anti-trust act it is not sufficient to frame the declaration in the words of the statute, but it is essential that the substance of the contract in restraint of trade or the substantial facts which constitute the attempt to monopolize should be set forth therein. (Cilley v. United Shoe Machine Co., 152 F. 726.)

Under the statute, in order to recover damages, a plaintiff must have been injured in his person or property and the injury sustained must be charged in the complaint by proper averment. (Meeker v. Lehigh Valley R. Co., 162 F. 354; Rice v. Standard Oil Co., 134 F. 464; Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241.)

WM. E. LEE, J. Budge, C. J., and Dunn, J., concur.

OPINION

WM. E. LEE, J.

--This action was commenced in the district court for Ada county, in December, 1920. Plaintiff alleged conversion of certain mining stock, and also attempted to allege certain violations of the state anti-trust law. (C. S., c. 116.) The allegations concerning the alleged violation of the anti-trust law were so mingled with the allegations regarding conversion as to make it very difficult to separate them. Respondents filed a general demurrer and motion to require appellant to separately state his causes of action. The court overruled the demurrer and motion, but indicated that a proper motion should be filed. Thereafter, respondents served and filed a motion to strike from the complaint the matters relating to the alleged violation of the anti-trust law. Appellant served and filed a motion to strike respondents' motion to strike, which motion was denied; the court sustained respondent's motion to strike, and gave appellant certain time within which to file an amended complaint. Appellant thereafter served and filed a motion "for rehearing of motion to strike certain allegations from the complaint." This motion was denied. Appellant there after filed his first amended complaint. The first amended complaint contains a substantial restatement of the allegations of the original complaint, stated in somewhat different order and in somewhat different language.

To the first amended complaint, respondents interposed a general demurrer and a motion to strike a paragraph relating to the alleged violations of the anti-trust law which had been ordered stricken from the original complaint. The court again ordered said paragraph stricken, and further ordered the entire amended complaint stricken "unless the plaintiff, within five days, filed an amended complaint in harmony with the former ruling of the court." Thereafter, appellant filed a second amended complaint. This was almost word for word a copy of the first amended complaint. Respondents thereupon moved that the second amended complaint. be stricken, and that the action be dismissed "on the ground that the second amended complaint is not in accordance with the ruling of the court." The court sustained the motion to strike the second amended complaint and denied the motion to dismiss the action. The plaintiff, thereafter, refusing to plead further, judgment of dismissal was entered.

From the judgment of dismissal, the plaintiff has appealed to this court, and assigns as error the striking of the complaint and the dismissal of the action.

The court was not justified in striking the second amended complaint if it stated a cause of action. And since the motion to strike was directed at the entire pleading, rather than specified parts thereof, inasmuch as appellant bases his whole argument on the theory that the complaint states a cause of action, the motion to strike the second amended complaint will be considered in the nature of a general demurrer. Appellant was attempting in his three complaints to state a cause of action for treble damages for a violation by respondents of the anti-trust law; and, if the second amended complaint stated a cause of action, it was for the violation of that law. Appellant, in his brief, repudiates any suggestion that his cause of action was in conversion. In his brief he says:

"It is very patent that the defendants-respondents were aiming, by their motions to strike, to disarm plaintiff-appellant, of his real cause of action, and the gist of his entire case. It may be urged as it was in the court below, that it is the conversion of the stock that appellant is contending for--this is not the cause here. That was the cause in the suit against the corporation, but this is decidedly different."

The question for our determination, therefore, is whether appellant has alleged sufficient facts, in the first place, to show a violation of C. S., sec. 2531; and, in the second place, to show that he has been injured in his business or property on account of any act declared illegal in said section 2531.

Among other things, chapter 116 of the Compiled Statutes provides:

"Sec. 2531: Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, within this state, is hereby declared illegal. . . . "

"Sec. 2544: Any person who shall be injured in his business or property by any other person or persons by reason of anything forbidden or declared to be unlawful by this chapter may sue therefor . . . . and shall recover threefold the damages by him sustained and the costs of suit, including a reasonable attorney's fee."

The following is a brief summary of the second amended complaint, hereafter referred to as the complaint:

That plaintiff was engaged in the business of mining; that he, together with the defendants, became the owners of an interest in a mining property; that they organized a corporation that took over the ownership of the property, that each of the incorporators was entitled, under their agreement, to certain shares of stock, plaintiff being entitled to 60,000 shares; that, for the purpose of defrauding plaintiff and injuring him in his business defendants conspired, etc., to and did violate the anti-trust law of this state, by...