Moutoux v. Gulling Auto Electric, Inc.
| Citation | 295 F.2d 573 |
| Decision Date | 28 November 1961 |
| Docket Number | No. 13200.,13200. |
| Parties | George H. MOUTOUX, Carl J. Moutoux, Lucille M. Moutoux, Elise M. Trautvetter, William J. Moutoux, Partners d/b/a Moutoux Auto and Machine Co., Plaintiffs, v. GULLING AUTO ELECTRIC, INC., and Holley Carburetor Co., Inc., Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
James D. Lopp, Evansville, Ind., for appellants.
Harry T. Ice, Indianapolis, Ind., N. A. Miles, Warren, Mich., James E. Hawes, Jr., Indianapolis, Ind., for defendants-appellees, Holley Carburetor Co., and Gulling Auto Electric, Inc., Ross McCord Ice & Miller, Indianapolis, Ind., of counsel.
Before KNOCH and CASTLE, Circuit Judges, and MERCER, District Judge.
Plaintiffs filed this suit against defendants, Gulling Auto Electric, Inc., and Holley Carburetor Company, alleging that defendants had conspired together to monopolize the distribution and fix prices for the sale of Holley products in Indiana and a part of western Kentucky. They appeal from a summary judgment for defendants dismissing their complaint. Hereinafter, for convenience, the parties are referred to as plaintiffs and defendants. When the context requires a reference to the individual defendants, they are referred to as Gulling and Holley.
Plaintiffs are wholesalers and distributors of automobile replacement parts doing business at Evansville, Indiana. Holley is a manufacturer of automotive engine carburetors, distributors and other ignition parts.
The complaint was founded upon the provisions of the Clayton and Sherman Anti-Trust Acts, 15 U.S.C.A. § 1 et seq. It alleges that plaintiffs and Equipment Service Company of Indianapolis, Indiana, had been distributors of Holley products in Indiana, with plaintiffs' territory including a part of western Kentucky; that, pursuant to an agreement and conspiracy, Holley cancelled plaintiffs' and Equipment Service's contracts and thereafter refused to sell its products to plaintiffs; that Holley entered into a monopoly arrangement with Gulling, whereby only Gulling could purchase Holley's products for distribution in Indiana; that defendants, by agreement, have established and maintain a fixed price level for Holley products sold in interstate commerce in Indiana and a part of the state of Kentucky; and that, as a result of the agreement and arrangement between defendants, plaintiffs have been deprived of business and good will of a substantial value. The complaint prayed injunctive relief and treble damages based upon alleged injury in the amount of $500,000.00.
Defendants, by their respective answers, denied generally the material allegations of the complaint.
Thereafter, interrogatories were filed and answered by the respective parties. The deposition of George Moutoux, business manager for plaintiffs, was taken by the defendants. Plaintiffs took the depositions of certain officers and agents of both Holley and Gulling.
Defendants moved for summary judgment, relying upon the pleadings, the answers to interrogatories, the deposition of Moutoux, the depositions of officers and agents of the defendants and the affidavit of W. E. Bailey, who had been, prior to February, 1959, the service sales manager of Holley, to show that no genuine issue of fact remained for trial.
A hearing was held on the motion for summary judgment, the admissions and the supporting evidentiary documents after which the court granted defendants' motion and entered judgment in their favor dismissing the cause of action.
Upon reviewing this record, it appears that the question whether summary judgment was properly entered in this case is a close one because of facts which are not controverted as follows.
A major part of Holley's manufactured products is sold to automobile and truck manufacturers for installation as original equipment on new automobiles and trucks. A smaller part of its carburetors and distributors are sold in the "after market", i. e., as replacement and repair parts for worn out equipment on motor vehicles. Only the latter category of Holley's business is involved in this litigation.
At all times material to this suit, Holley has sold its after market products only to franchised central distributors, sometimes hereinafter referred to as centrals. The centrals, in turn, have sold Holley products at a mark-up to local wholesalers and to retail outlets. In either event, the replacement parts ultimately reached the consuming public through garages, service stations and other retail outlets.
On October 3, 1949, plaintiff became a central distributor for Holley in an area which initially included the southern part of Indiana, a part of northwestern Kentucky and a part of southeastern Illinois. From time to time that franchise area was reduced until, as of the time when plaintiff's franchise was cancelled as hereinafter related, plaintiff's area included only its Indiana territory and two counties in northwestern Kentucky. The agreements under which plaintiff operated as a central distributor for Holley provided that the distributorship arrangement would remain in force for an indefinite period, but could be terminated by either party by thirty days written notice given to the other.
On November 3, 1958, Holley notified plaintiff and Equipment Service that their respective distributorship agreements were cancelled, effective January 1, 1959. On the same date, Holley notified Gulling that it was being appointed central distributor for Holley products, with a designated distributorship territory covering all of Indiana except three northern counties which were adjacent to the City of Chicago.
After cancellation of its central distributorship franchise, plaintiff returned part of its inventory to Holley and received credit therefor. The balance of its inventory was retained and marketed. Plaintiff submitted a number of orders to Holley after January 1, 1959, all of which Holley refused to fill. Thereafter, on May 28, 1959, the instant suit was filed.
At all times material to this litigation, Holley furnished price lists for its products to its central distributors. Holley insists that its lists, prior to January 1, 1959, were suggested retail price lists — that its sales to centrals were at a discount from that list. Moutoux's deposition supports that characterization of the lists to the extent of his testimony, that plaintiffs, as a Holley central, did not consider themselves bound by that list in the sale of Holley products. Subsequent to January 1, 1959, Holley...
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