Spears Free Clinic and Hospital v. Cleere

Decision Date10 May 1952
Docket NumberNo. 4388.,4388.
Citation197 F.2d 125
PartiesSPEARS FREE CLINIC AND HOSPITAL FOR POOR CHILDREN v. CLEERE et al.
CourtU.S. Court of Appeals — Tenth Circuit

George Louis Creamer, Denver, Colo. (Charles Ginsberg, Denver, Colo., on the brief), for appellant.

Kenneth W. Robinson, Denver, Colo. (James T. Burke, Duke W. Dunbar, H. Lawrence Hinkley, James D. Parriott, Jr., J. P. Nordlund and Robert D. Charlton, all of Denver, Colo., on the briefs), for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

Spears Free Clinic and Hospital for Poor Children,1 a corporation, brought this action to recover damages under 15 U.S.C. A. § 15 for violation of 15 U.S.C.A. §§ 1and2.On motion of the Spears Hospital the court dismissed the action as to certain defendants.The remaining defendants2 are the Medical Society of the City and County of Denver, a Colorado corporation, former and present members of the State Board of Health of the State of Colorado, and former and present officials or trustees of the Medical Society.One of the defendants is a licensed dentist, one is a registered pharmacist, and two are attorneys duly licensed to practice law in the State of Colorado.The other defendants are doctors of medicine, duly licensed to practice in the State of Colorado, and are members of the Medical Society.The defendants interposed a motion to dismiss the action on the ground that it did not state a claim on which relief could be granted.The trial court sustained the motion and dismissed the action.Spears Hospital has appealed.

The complaint alleges that the Spears Hospital operates as a chiropractic institution and has on its staff licensed chiropractors, laboratory technicians, X-ray technicians, physiotherapists, nurses and dieticians; that it provides facilities wherein persons are given and furnished, by duly licensed persons, chiropractic treatments, that are permitted by the laws of Colorado; and that "numerous persons from all of the United States, and from many foreign countries" regularly come to the institution for treatment.It further alleges that the defendants combined and conspired to prevent the licensing of such institution by the proper authorities of the State of Colorado, to prevent the operation and maintenance of such institution, and to allocate to the members of the medical profession within the State of Colorado the entire practice of the healing arts within that state, to the exclusion and restraint of the practice of chiropractic; and that the defendants did certain acts to prevent the maintenance of the Spears Hospital as a chiropractic institution and to monopolize the entire practice of the healing arts within the State of Colorado in the medical profession, to the exclusion and restraint of the practice of chiropractic.

The practice of the healing arts in Colorado, including chiropractic, is wholly local in character.The alleged conspiracy and the acts alleged to have been done in furtherance thereof had for their purpose and object the monopolization and restraint of purely local activities.No price fixing or price maintenance for professional or other services was involved.There was no intent to injure, obstruct or restrain interstate or foreign commerce.The mere fact that a fortuitous and incidental effect of such conspiracy and acts may be to reduce the number of persons who will come from other states and countries to the Spears Hospital for chiropractic treatments does not create such a relation between interstate and foreign commerce and such local activities as to make them a part of such commerce.3

To come within the purview of the Sherman Act the restraint of commerce or the obstruction of commerce must be direct and substantial and not merely incidental or remote.4The conspiracy or combination must be aimed or directed at the kind of restraint which the Act prohibits, or such restraint must be the natural and probable consequence of the conspiracy.5

A specific intent to restrain trade or create a monopoly need not always be shown.It is sufficient that a restraint or monopoly, within the purview of the Act, results as a consequence of the defendants' conduct.The defendants"must be held to have intended the necessary and direct consequences of their acts, and cannot be heard to say the contrary."6

Where, however, the object and purpose is to restrain or monopolize activities or matters purely local in character, those facts may be considered in determining whether the effect on interstate or foreign commerce is direct and substantial or only incidental, indirect and remote.7In Levering & G. Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062, the complainants were engaged in fabricating and erecting structural iron and steel and attempts were made by unions in the City of New York to compel them to employ only union labor in this work.The complaint alleged that all the steel used by the complainants in the City of New York was transported from other states, and that the success of the respondents' efforts would result in the destruction of the complainants' interstate traffic in steel.The court said, 289 U.S. at page 107, 53 S.Ct. at page 551, 77 L.Ed. 1062:

"All this, however, is no more than to say that respondents\' interference with the erection of the steel in New York will have the effect of interfering with the bringing of the steel from other states.Accepting the allegations of the bill at their full value, it results that the sole aim of the conspiracy was to halt or suppress local building operations as a means of compelling the employment of union labor, not for the purpose of affecting the sale or transit of materials in interstate commerce.Use of the materials was purely a local matter, and the suppression thereof the result of * * * a purely local aim.Restraint of interstate commerce was not an object of the conspiracy.Prevention of the local use was in no sense a means adopted to effect such a restraint.It is this exclusively local aim, and not the fortuitous and incidental effect upon interstate commerce, which gives character to the conspiracy.* * * If thereby the shipment of steel in interstate commerce was curtailed, that result was incidental, indirect, and remote, and, therefore, not within the anti-trust acts * * *."8

A curtailment of the manufacture of articles to be shipped in interstate commerce or the lessening of the number of persons who travel in interstate commerce, resulting from a conspiracy to restrain or monopolize a wholly local activity, is ordinarily an incidental, indirect and remote obstruction to such commerce.In United Leather Workers International...

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32 cases
  • Ingram v. Phillips Petroleum Company
    • United States
    • U.S. District Court — District of New Mexico
    • April 07, 1966
    ...express agreement, written or otherwise, and intent to conspire is not necessary if unlawful restraint of trade results from improper conduct. See Esco Corp. v. United States, 9th Cir. 1965, 340 F.2d 1000; Spears Free Clinic and Hospital for Poor Children v. Cleere, 10th Cir. 1952, 197 F. 2d 125. In light of the liberality allowed in the proof of a claim of conspiracy under the anti-trust laws, in view of the fact that such proof is invariably difficult to uncover by a private...
  • Page v. Work
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 03, 1961
    ...219, 68 S.Ct. 996, 92 L.Ed. 1328; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 1936, 85 F.2d 742; Atlantic Co. v. Citizens Ice & Cold Storage Co., 5 Cir., 1949, 178 F.2d 453; Spears Free Clinic & Hospital for Poor Children v. Cleere, 10 Cir., 1952, 197 F.2d 125; Elizabeth Hospital, Inc. v. Richardson, 8 Cir., 1959, 269 F.2d 167, certiorari denied 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d Appellant contends that there was direct and substantial...
  • United States v. Bensinger Company
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 18, 1970
    ...Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964); Elizabeth Hospital, Inc. v. Richardson, 269 F.2d 167 (8th Cir. 1959), cert. denied 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959); Spears Free Clinic v. Cleere, 197 F.2d 125 (10th Cir. 1952); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F.Supp. 176 Where the activities are interstate in nature, the interstate commerce issue depends upon whether the restraint is a per se violation of the...
  • Searer v. West Michigan Telecasters, Inc.
    • United States
    • U.S. District Court — Western District of Michigan
    • August 22, 1974
    ...517, 526 (9th Cir. 1973), cert. denied, 412 U.S. 950, 93 S. Ct. 3014, 37 L.Ed.2d 1003; Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416, 418 (5th Cir. 1972); Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125, 126-128 (10th Cir. 1952); Marston v. Ann Arbor Property Managers Ass'n, 302 F.Supp. 1276, 1279-1280 (E.D.Mich.1969), aff'd, 422 F.2d 836 (6th Cir. 1970), cert. denied, 399 U.S. 929, 90 S.Ct. 2244, 26 L. Ed.2d...
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  • Chapter 12. Application of Merger Laws to Multinational Transactions
    • United States
    • Mergers and Acquisitions: Understanding the Antitrust Issues, 2d Edition American Bar Association
    • Enero 01, 2004
    ...Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979). 9. See Southeastern Hose, Inc. v. Imperial-Eastman Corp., 1973-1 Trade Cas. (CCH) ¶ 74,479 (N.D. Ga. 1973). 10. See Spears Free Clinic & Hosp. for Poor Children v. Cleere, 197 F.2d 125 (10th Cir. 1952). Department of Justice (DOJ or the Division) adopted an enforcement policy requiring the effect on U.S. commerce to be both “substantial and foreseeable.” 11 Congress amended the Sherman Act by enacting the Foreign...
  • Application of Merger Laws to Multinational Transactions
    • United States
    • Mergers and Acquisitions. Understanding the Antitrust Issues. Fourth Edition American Bar Association
    • Diciembre 06, 2015
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  • Table of Cases
    • United States
    • Mergers and Acquisitions: Understanding the Antitrust Issues, 2d Edition American Bar Association
    • Enero 01, 2004
    ...220 Southern Pacific Communs. Co. v. AT&T, 740 F.2d 980 (D.C. Cir. 1984), 154 Spartan Grain & Mill Co. v. Ayers, 581 F.2d 419 (5th Cir. 1978), 385 Spears Free Clinic & Hospital for Poor Children v. Cleere, 197 F.2d 125 (10th Cir. 1952), 393 Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993), 9 Square D Co. v. Schneider S.A., 760 F. Supp. 362 (S.D.N.Y. 1991), 445 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911),...