Roseland v. Phister Mfg. Co., 7778.
| Citation | 125 F.2d 417 |
| Decision Date | 05 February 1942 |
| Docket Number | No. 7778.,7778. |
| Parties | ROSELAND v. PHISTER MFG. CO. et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
John F. Higgins and John O'C. Fitzgerald, both of Chicago, Ill., for appellant.
Tom Leeming, Walter S. Underwood, Joseph W. Townsend, and Russell B. Burt, all of Chicago, Ill., for appellees.
Eckert & Peterson, of Chicago, Ill. (Walter H. Eckert and Robert J. Bird, both of Chicago, Ill., of counsel), for Pyrene Mfg. Co.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
But one question is presented by this appeal, — whether the District Court rightfully sustained a motion to dismiss plaintiff's amended claim. From the averments, plaintiff has for the last seventeen years followed the vocation of salesman of fire prevention equipment and fire extinguishers and accessories throughout various states. The three defendants are corporations engaged in manufacture of, and interstate commerce in, such merchandise, selling to transportation companies, municipal bodies and the public generally. Plaintiff first became associated with defendant Phister Manufacturing Company in 1924. In 1926 he contracted with it to sell its products as an exclusive sales agent in some eight states, receiving as remuneration one-half the difference between cost and the sales price of the products sold. After 1927, he received a similar commission on goods sold outside his territory but delivered within the same. His average annual compensation was some $11,000. The company guaranteed the salaries and expenses of maintaining his sales office in Chicago.
Defendants are the only persons manufacturing and selling such equipment in the United States. Their sales are extensive and profitable. On or about March 29, 1930 the three companies combined their activities for the purpose of suppressing competition in interstate commerce in such products, conspired to monopolize the commerce therein, securing and retaining a monopoly, establishing and maintaining enhanced noncompetitive prices, destroying and stifling competition, dividing and allocating territory, eliminating fair and lawful competition, selling their own products to each other at false and enhanced prices, fixing prices, and dividing customers and purchasers.
For many years plaintiff has been engaged in the business of a merchandise broker, salesman and branch manager for manufacturing companies. His volume of sales has been large. He has acquired an extensive and intimate acquaintance with buyers and executives, a thorough knowledge of their needs and purchasing power and a reputation for honesty and efficiency. He at no time took part in, agreed to or acquiesced in the unlawful conspiracy.
Upon complaint by the Federal Trade Commission defendants consented to a cease and desist order but, despite that, have persisted in their acts in violation of the Sherman and Clayton Acts, 15 U.S.C. A. § 1 seq. As a necessary result, plaintiff has been deprived of the opportunity to bid in certain territories where he was exclusive representative of defendant; his bids have been forbidden or suppressed; he has been prevented from entering into competition and deprived of the opportunity of making sales, so that he has been seriously damaged in his business.
Section 4 of the Act, Title 15, Sec. 15, U.S.C.A., provides that any person who shall be injured in his business or property, as a result of violation of the Act, may recover damages. Defendants moved to dismiss the complaint on the ground that it stated no cause of action for the reason that plaintiff, if he had any business, within the intent of the Act, was not within those to whom damages are granted. The question, then, is whether plaintiff is such a person as may recover damages, whether he has a business which has been damaged.
The language of the statute is general and all inclusive. It includes any person who shall be injured in his business or property. We assume that the word business was used in its ordinary sense and with its usual connotations. It signifies ordinarily that which habitually busies, or engages, time, attention or labor, as a principal serious concern or interest. In a somewhat more truly economic, legal and industrial sense, it includes that which occupies the time, attention, and labor of men for the purpose of livelihood or profit, — persistent human efforts which have for their end pecuniary reward. It denotes "the employment or occupation in which a person is engaged to procure a living." Allen v. Commonwealth, 188 Mass. 59, 74 N.E. 287, 288, 69 L.R.A. 599.
Ordinarily persons who may claim injury to their business under the Act do not include a stockholder making claim for injury or damage to the business of his corporation, Corey v. Independent Ice Co., D.C., 207...
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