Momand v. Universal Film Exchanges

• Decision Date: 21 December 1948
• Docket Number: 4292.,No. 4291,4291
• Parties: MOMAND v. UNIVERSAL FILM EXCHANGES, Inc., et al. UNIVERSAL FILM EXCHANGES, Inc., et al. v. MOMAND.
• Court: U.S. Court of Appeals — First Circuit

172 F.2d 37 (1948)

MOMAND v. UNIVERSAL FILM EXCHANGES, Inc., et al. UNIVERSAL FILM EXCHANGES, Inc., et al. v. MOMAND.

Nos. 4291, 4292.

United States Court of Appeals First Circuit.

December 21, 1948.

COPYRIGHT MATERIAL OMITTED

George S. Ryan, of Boston, Mass., for A. B. Momand.

Jacob J. Kaplan, of Boston, Mass. (Irving J. Helman and Nutter, McClennen & Fish, all of Boston, Mass., on the brief), for Universal Film Exchanges. Inc., et al.

Before MAGRUDER, Chief Judge, and GOODRICH and WOODBURY, Circuit Judges.

GOODRICH, Circuit Judge.

This is an anti-trust suit for treble damages by the assignee of ten corporations, which were at the times complained of engaged in the motion picture business in Oklahoma, against eight major motion picture producers and distributors. The plaintiff, though assignee, sues in his own right. The complaint alleges that the defendants conspired to violate the federal anti-trust laws by twenty of their business practices. After the jury had rendered a verdict for the plaintiff, the trial court directed a verdict for the defendants and entered judgment thereon. Both sides have appealed.

Prior to the commencement of any litigation, the plaintiff and his father operated motion picture theaters in twelve Oklahoma cities and towns. They later formed thirteen separate Oklahoma corporations to operate these theaters. Some of the grounds and buildings occupied by the theaters were owned by a fourteenth Oklahoma corporation called Momand Realty Corporation. A fifteenth corporation named Momand Theatres, Inc. was formed in Delaware in January, 1929, as a management company, and it acquired the stock of the thirteen operating companies referred to above. The stock of Momand Theatres, Inc. was in turn owned by the plaintiff and his father "largely, with perhaps some minor stockholders."

On April 13, 1931, and again on December 31, 1933, the plaintiff took assignments from each of these fifteen corporations of their causes of action under the anti-trust laws against a number of motion picture producers, distributors and exhibitors, among whom are the defendants in the present case.

While the plaintiff's argument covers a wide range of territory, his counsel frankly stated at the oral argument that he would be content if the verdict of the jury was reinstated. This verdict was reached after a lengthy trial in which the District Court had limited the plaintiff's proofs to two of the liability-creating business practices out of the twenty originally alleged.¹ The reason for this limitation was former litigation in Oklahoma. Another limitation was imposed by the trial judge also, and this related to the period of time for which the plaintiff was entitled to complain.

Our discussion, therefore, falls conveniently into three divisions. The first concerns the correctness of the action of the District Court in directing a verdict for the defendants because of failure of the plaintiff's proof on the two charges concerning which he was permitted (and encouraged) to offer proof. The second part of the discussion concerns itself with the question whether the plaintiff was correctly limited to proof of the two charges instead of twenty. This involves a question of res judicata arising out of the earlier Oklahoma litigation which will be described later. The third point which must be discussed is whether the District Court was correct in limiting the plaintiff as he did to the time during which plaintiff could claim recovery. If these three questions are resolved in accordance with the rulings of the District Court, there will be no occasion to consider any basis for appeal which the defendants may have to offer.

Was There Evidence To Support A Verdict For Plaintiff?

We turn first, therefore, to the question whether the plaintiff made out a case for recovery on the evidence he offered. Only two grounds of alleged conspiracy were left open to him. One of these had to do with recovery of loss sustained from the operation of the arbitration clauses² in the standard contract then in effect between distributors and exhibitors of pictures. The other had to do with certain credit practices³ on the part of distributors followed by these defendants. All the rest of the plaintiff's twenty grounds of complaint were ruled out by the District Judge because he held that the plaintiff was precluded from recovery upon them by the action of the court in the Oklahoma litigation previously referred to. We assume for the purpose of discussion under this point that the plaintiff was properly limited to these two grounds of complaint.

Plaintiff's claim based on credit practices may be disposed of briefly. Those practices are involved in only two counts.⁴ The evidence on both counts consists of testimony of the plaintiff to the effect that, had it not been for the arbitration and credit conspiracies, the receipts of these theaters would have been greater than they were. No part of the loss claimed was separately attributed to the credit conspiracy. Indeed, as will appear below, arbitration and credit practices were more often lumped with other causes which were not liability-creating. It is apparent, also, that the substance of plaintiff's claim in this part of the case is that threats of arbitration forced him to follow a course that ruined his business. The following discussion, therefore, is applicable to the credit practices where they are involved, although reference will be made only to arbitration practices.

The plaintiff introduced in evidence twenty-one arbitration claims, totalling $10,332.35, made against him by the defendants. He never paid any of these claims, but rearrangements were worked out in each case settling the differences between the parties. No direct damage resulted, therefore, from these arbitration claims, for the plaintiff paid nothing and incurred no expenses in connection with them. Plaintiff does not controvert this, but he argues that many more than twenty-one claims must have been filed, and that he could not have been expected to remember them all. While this argument may justify an inference that the scope of the arbitration conspiracy was greater than twenty-one claims would indicate, it does not prove that other claims caused more loss than the samples produced, which showed no direct loss at all.

No evidence appears in the record to show that these arbitration claims were presented to induce any of plaintiff's assignors to enter into disadvantageous obligations. From plaintiff's own account of conversations with representatives of defendants, nothing appears from which an intention to injure plaintiff's theaters may be inferred. The subject matter of the arbitration complaints consisted of disputes arising upon contracts already made and alleged to be broken and no prospective arrangements were involved. Nor did plaintiff offer evidence of a single prejudicial new obligation which any of his assignors undertook to escape an arbitration claim or threat. In the instances where there were settlements following arbitration disputes, there is no showing of injury caused by the rearrangement, but only a general charge that the pictures were undesirable. In reviewing specific disputes, the plaintiff was at a loss to remember whether any arrangements made were undesirable to him, and could only say broadly that some arrangements made were desirable and some undesirable. Indeed the settlement of the claims resulted in reduced rentals of films to the plaintiff. This is hardly proof of specific injury resulting from defendants' illegal practices. We turn, then, from the particularized to the more general aspects of this claim.

Suppose we assume that the plaintiff did, contrary to what has been said above, incur large losses in trying to avoid the impact of the arbitration practices complained of. Is recovery for them permitted under the rules of law governing allowance of damages?

The plaintiff claims that at least ten profitable theaters were reduced to operation at a loss and then were forced out of business entirely. The jury verdict would award him a sum, when trebled, approaching $1,000,000. We think he cannot recover any sum of that magnitude for two reasons. First, the substance of his present claim is that the arbitration machinery was used to force poor pictures and late bookings upon him. But the booking difficulties of the plaintiff's theaters were a major source of complaint in the Oklahoma litigation. It was there found that the defendants had not conspired with respect to the selection or timing of motion picture bookings. Damage from these sources is, therefore, not open to proof in this case if the res judicata rulings are correct, and for the discussion under this head, we assume that they are. Second, even if any claim were free of the estoppel rulings (and none appears to be) the plaintiff's course of conduct must be evaluated in the light of the threatened harm which he was seeking to avoid. So far as the record shows, that harm consisted specifically of approximately $10,000 in arbitration claims and generally, perhaps, of a number of additional claims not individually proved. The basis, then, of the plaintiff's claimed loss measured in the hundreds of thousands, must, under the estoppel rulings, be found in a claim against him of some $10,000. If plaintiff, without showing any specific intent of defendants to injure him or any specific damaging transaction, proceeded voluntarily to make business arrangements which caused damages running to one third of a million dollars, that conduct was too extravagant to be charged to defendants. The point is ably and fully discussed in the District Court's opinion, 72 F.Supp. 469, 476, 477. We approve what is said there, and see no need to review the question further.

We come, then, to the important question of causation. The plaintiff shows that defendants have engaged in illegal practices. He shows also that his business...