Neumann v. Bastian-Blessing Co., Civil Action 46 C 440.

• Citation: 70 F. Supp. 447
• Decision Date: 24 January 1947
• Docket Number: Civil Action 46 C 440.
• Parties: NEUMANN v. BASTIAN-BLESSING CO. et al.
• Court: U.S. District Court — Northern District of Illinois

70 F. Supp. 447

NEUMANN v. BASTIAN-BLESSING CO. et al.

Civil Action 46 C 440.

District Court, N. D. Illinois, E. D.

January 24, 1947.

Lannan, La Velle & Hill, of Chicago, Ill., for plaintiff.

Poppenhusen, Johnston, Thompson & Raymond, of Chicago, Ill., for defendant.

LA BUY, District Judge.

A motion to dismiss Count I of the original complaint was previously sustained by this court and plaintiff has now filed his amended complaint for the purpose of showing jurisdiction under the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, to sustain his claim for treble damages set forth in Amended Count I. Defendant has filed his motion to dismiss Count I and renewed its motion to dismiss the other counts of the amended complaint.

Plaintiff, Othon Neumann, alleges for a number of years he acted as the exclusive agent and distributor for various American companies in the export and sale of gas regulating equipment into Mexico. He alleges he was exclusive agent for the defendant, who is the largest manufacturer in the world of gas regulating equipment; that he was also exclusive agent of the Pressed Steel Tank Company of Milwaukee, Wisconsin, the largest and principal manufacturer of portable cylinders used in gas regulating equipment; that he was also exclusive agent for the Hamler Boiler and Tank Company of Chicago, the largest manufacturer of storage tanks suitable for bottled gas service companies, and the National Cylinder Gas Company, the sole world distributor of welding and cutting equipment manufactured by the defendant; that plaintiff handled 80% of the trade in such equipment in Mexico; that defendant and its vice-president, Mills, together with unknown confederates, by means of coercion, misrepresentation and unlawful persuasion induced the Pressed Steel Tank Company on June 15, 1943, the Hamler Boiler and Tank Company on March 17, 1944, and the National Cylinder Gas Company on March 13, 1944, to cancel their employment contracts with plaintiff as well as cancelling its own contract with plaintiff on December 31, 1943, all in pursuance of a plan or conspiracy in restraint of trade.

Section 1 of the Sherman Act prohibits a monopoly as a result of conspiracy or combination causing a substantial dominance or exclusion of competitors, and Section 2 prohibits monopolizing, i. e., the acquisition of power to fix prices, limit production or deteriorate quality. The allegations of amended paragraphs 7, 39, and 40 indicate reliance by plaintiff upon a violation of Section 1 of the Act, with the exception of the general charge in paragraph 65 stating that because of such domination "defendant has been able to and has increased the price of its said products in such foreign trade." This latter is a mere legal conclusion of the pleader and no facts appear in any count to support it. It is necessary for plaintiff to allege with a degree of certainty and definiteness the conspiracy or combination to restrict free competition in the sale and distribution of gas regulating equipment in order to state a cause of action.

The combinations and contracts in restraint of trade which were intended to be prohibited by the Sherman Act are combinations which are directed to the control of the market by suppression of competition in the marketing of goods and services, the effect of which is adverse to the consumer and the public. The practices prohibited by the Act are those that have an evil effect upon the public generally, as distinguished from purely personal or private injury.

The following are the material paragraphs of Amended Count I which the court has considered in determining the sufficiency of the complaint to maintain an action under the Sherman Anti-Trust Act:

"39. Accordingly defendants concluded that, if plaintiff were allowed to continue unmolested in his business as aforesaid after the proposed cancellation of his contract with the corporate defendant, he and his business would constitute an established, active, efficient and readily available channel and instrumentality for carrying on with Mexico, by the corporate defendant's American competitors, of foreign trade in gas regulating equipment made in the United States; that such competitors, by engaging plaintiff as their agent or distributor or...