Ploog v. Roberts Dairy Company

• Decision Date: 11 February 1932
• Docket Number: 28100
• Parties: CARL PLOOG, APPELLANT, v. ROBERTS DAIRY COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

240 N.W. 764

122 Neb. 540

CARL PLOOG, APPELLANT, v. ROBERTS DAIRY COMPANY ET AL., APPELLEES

No. 28100

Supreme Court of Nebraska

February 11, 1932

APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Petition for damages in restraint of trade under anti-trust laws sections 59-801, 59-803, 59-806, and 59-818, Comp. St. 1929, examined, and found vulnerable to demurrers.

Appeal from District Court, Douglas County; Thomsen, Judge.

Action by Carl Ploog against the Roberts Dairy Company and others. From a judgment dismissing the action, the plaintiff appeals.

Affirmed.

Lawrence I. Shaw, for appellant.

J. W. Weingarten, contra.

Heard before GOSS, C. J., DEAN and PAINE, JJ., and CARTER and RHOADES, District Judges.

OPINION

PER CURIAM.

This is an action at law, brought by the appellant to recover damages in the sum of $ 15,000 from the appellees, on account of alleged violations of the Nebraska antitrust law, as set out in sections 59-801 and 59-802, Comp. St. 1929, covering the subject of unfair local discrimination by any person, firm or company doing business in the state of Nebraska, and providing penalties for the violation thereof. Demurrers were filed to the original petition, and sustained, after which the appellant amended his petition, and the demurrers were allowed to stand by agreement as demurrers to the amended petition, and the demurrers being again sustained and the appellant electing to stand on the petition as amended, the action was dismissed by the district court.

The petition alleges, in substance, that the Roberts Dairy Company is a corporation, buying and selling fresh milk at Omaha; that the defendant, Floyd S. Pegler, is its manager at Omaha, and Lloyd Wright is the assistant manager, and that the defendants Chris Bull, Fred Glessman and John Harder are residents of Sarpy county, engaged in the same business, of trucking milk, as the appellant; that the appellant, a resident of Sarpy county, for two years had been engaged in the business of hauling fresh milk with his truck equipment, in which he had invested some $ 2,000; that his customers consisted of some 19 farmer producers, located in the vicinity of Chalco, and that he hauled the milk of said customers daily to the Roberts Dairy Company in Omaha, Nebraska, and there the milk was purchased by the Roberts Dairy Company from the producers, for a price agreed upon between them; that the appellant was paid for hauling such milk by the farmers at a rate agreed upon, the amount of compensation varying in the case of each producer; that the said dairy company, with the other defendants, combined and conspired to restrict and restrain the trade and competition of the appellant and to drive him out of business, and to monopolize and control the daily hauling of fresh milk from the area from which the plaintiff had been hauling the same, and notified the farmers that, beginning within a day or two immediately following, the said dairy company would refuse to purchase or to accept fresh milk from them unless the same was transported by one of the defendants, Harder, Bull, or Glessman; that the three defendants, Wright, Bull, and Harder, notified the appellant that the said dairy company would no longer purchase fresh milk from the producers if the same was hauled or transported by the plaintiff. Appellant further alleged that, because of the distance hauled and the necessity for an immediate sale of fresh milk, it was impossible to make negotiations to sell the same to other persons without serious loss and damage to the producers, and that a majority of the producers acquiesced in the demands of the defendants and permitted said defendants to haul their milk, and therefore the plaintiff's business was absolutely destroyed; that appellant's average profits had been $ 160 a month, which were wholly cut off, and the value of his trucks greatly depreciated, all to his actual damage in the sum of $ 5,000, and appellant therefore prayed, as provided by law, that he be allowed to recover three-fold damages, in the sum of $ 15,000, and reasonable attorney's fees.

The appellees insist that contracts for the performance of service, without any definite or specific period of duration, are generally terminable at the will of...