Imperial Film Exch. v. General Film Co.

• Decision Date: 14 December 1915
• Citation: 244 F. 985
• Parties: IMPERIAL FILM EXCH. v. GENERAL FILM CO. et al.
• Court: U.S. District Court — Southern District of New York

244 F. 985

IMPERIAL FILM EXCH. v. GENERAL FILM CO. et al.

United States District Court, S.D. New York.

December 14, 1915

Laurence A. Sullivan and Eugene M. Gregory, both of New York City, for receiver.

Harold Nathan, of New York City, for defendants.

HOUGH District Judge.

The exact point of law raised by this motion has never been decided, nor, indeed, so far as my own investigations and those of counsel reveal, has it ever been mooted before. The very able and interesting briefs of counsel I have considered a long time, and yet after such lengthy reflection it appears to me that the matter must be decided by one's views of some elementary and fundamental propositions. To put the matter in another way, decision must be here arrived at, not by a nice consideration of closely joining decisions, but by the view entertained of the application of certain broad propositions, concerning the general correctness of which certainly no counsel here concerned could entertain any doubt. Defendants' position may I think be fairly outlined thus:

1. The dissolution of the plaintiff is equivalent to the death of a natural person. To this I agree, and consider the references made in argument entirely sufficient, viz.: Greeley v. Smith 3 Story, 657, Fed. Cas. No. 5,748; Pendleton v Russell, 144 U.S. 640, 12 Sup.Ct. 743, 36 L.Ed. 574; Matter of Stewart, 39 Misc.Rep. 275, 79 N.Y.Supp 525; Id., 40 Misc.Rep. 32, 81 N.Y.Supp. 209; Id., 86 A.D. 627, 83 N.Y.Supp. 1117; Id., 177 N.Y. 558, 69 N.E. 1131.

2. The cause of action set forth in the complaint herein (or any cause of action properly brought under section 7 of the Sherman Act) is certainly for a personal wrong, and therefore an action for tort. I agree to this as far as it goes, but do not think that it states the whole truth.

3. Since this suit depends for its vitality solely upon a statute of the United States, the statutes of the state of New York in respect of abatement and survival of actions or causes of action have no application. To this I agree, upon the authority of the cases cited: Michigan Central, etc., Co. v. Vreeland, 227 U.S. 59, 33 Sup.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; Baltimore & Ohio R.R. v. Joy, 173 U.S. 226, 19 Sup.Ct. 387, 43 L.Ed. 677.

4. There is no statute of the United States either preventing or permitting the survival of such a cause of action as this. Therefore the rules of the common law become applicable. Holding common law to include also judicial opinions, even the most modern, on points not regulated by statute, I agree to this.

5. The dissolution (i.e., death) of this plaintiff corporation must have wholly abated this action, because the action is for tort, and the common-law rule regarding the death of personal actions still applies. To this conclusion I cannot agree, because of what I conceive to be the half truth heretofore alluded to. Such an action as this under the Sherman Law can only be brought when a person is 'injured in his business or property. ' Section 7. The action is to recover 'threefold the damages by him sustained'; i.e., sustained by and in the said 'business' or 'property.'

Such an action as this might well be called sui generis, but surely the nearest approach to one of the old legal categories that can be made is to assign this new statutory cause of action to that of actions for a tort occasioning injury to property, of which perhaps the most ancient and familiar illustrations are trespass q.c.f. and trespass d.b.a. By a long list of decisions the general test of survivability of actions is their assignability. In fact, many, if not most, of the cases seem to reason in a circle; i.e., if the question is of assignability, a case of survival is thought to rule it, and e converso. See such decisions catalogued in 4 Cyc. 23. In short, assignability and the right of survival are attributes of causes of action discoverable by the same tests; as a general rule they are 'convertible terms.' Selden v. Ill. Trust, etc., Bank, 239 Ill. 67, 87 N.E. 860, 130 Am.St.Rep. 180; Tanas v. Municipal Gas Co., 88 A.D. 251, 84 N.Y.Supp. 1053; Morenus v. Crawford, 51 Hun, 89, 5 N.Y.Supp. 453; Grocers' National Bank v. Clark, 48 Barb. (N.Y.) 26.

Admitting that most actions for wrong to the person, or indeed to a person, are still subject to the common-law rule, it is several centuries since an exception was...