Sullivan v. Paramount Film Distributing Corp.

• Decision Date: 06 December 1947
• Docket Number: 36966,36967.
• Citation: 164 Kan. 125,187 P.2d 360
• Parties: SULLIVAN v. PARAMOUNT FILM DISTRIBUTING CORPORATION et al. (two cases).
• Court: Kansas Supreme Court

187 P.2d 360

164 Kan. 125

SULLIVAN v. PARAMOUNT FILM DISTRIBUTING CORPORATION et al. (two cases).

Nos. 36966, 36967.

Supreme Court of Kansas

December 6, 1947

Appeal from District Court, Sedgwick County, Division No. 3; Clair Robb, Judge.

Appeal from District Court, Sedgwick County, Division No. 3; Clair Robb, Judge.

Separate actions, consolidated on appeal, by O. F. Sullivan against Paramount Film Distributing Corporation and another for breach of contract to supply films to plaintiff's theaters. From a judgment overruling named defendant's demurrer to petition, in each case, named defendant appeals.

Reversed with directions.

Syllabus by the Court.

Examining the record in an action for the alleged breach of a contract and other grievances, it is held, the court erred (1) in not requiring plaintiff to plead the contract in full; (2) in overruling defendant's motion to strike, and (3) in overruling defendant's general demurrer to the petition.

Homer V. Gooing, of Wichita (Howard T. Fleeson, Wayne Coulson, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita on the brief), for appellant.

Austin M. Cowan, of Wichita (Ray H. Tinder, of Wichita, on the brief), for appellee.

HARVEY Chief Justice.

These cases were consolidated for hearing in this court for the reason that the same legal principles apply to both of them. The abstract and briefs are confined to case No. 36,966. That was an action to recover a money judgment for damages for the alleged breach of a contract and other grievances. The defendants named are the Paramount Film Distributing Corporation (hereinafter called defendant) and R. M Copeland, described as the branch manager of defendant. No service of process was had upon him and the case proceeded against the defendant alone.

Defendant moved for an order requiring plaintiff to make his petition definite and certain as to the contract relied upon. This was sustained in part only, and plaintiff filed an amendment to the petition pertaining to the contract. Defendant's motion to strike a large part of the petition was overruled as was also its motion to require plaintiff to separately state and number his several purported causes of action. Defendant then demurred to the petition as amended upon the grounds, first, that the court had no jurisdiction of defendant; second, that several pretended causes of action are improperly joined, and third, that the petition as amended does not state facts sufficient to constitute a cause of action against this defendant on a single and definite theory. This demurrer was overruled and defendant has appealed.

We summarize or quote the petition as follows: That plaintiff is a resident of Wichita, engaged in operating motion picture shows in three named theaters; that defendant is a corporation duly organized and existing under the laws of the state of _____ and is known as a distributor of films for motion picture shows; and for many years has furnished plaintiff with films for display in his motion picture theaters; that plaintiff orally contracted with defendant, through its agent, Harry Wheeler, in Wichita, on or about April 4, 1946, for the showing of the film 'The Virginian,' at one of his theaters from June 23 to June 26 inclusive, and at another of his theaters from June 27 to June 29 inclusive, 1946; that the rental charge for the film was to be paid defendant on a percentage of the gross receipts. The petition continues (defendant moved to strike the part printed in italics):

'That said distributor, as well as other distributors, have insisted upon checking the gross receipts. That the plaintiff has always consented and encouraged distributors, including the defendant corporation, to check his books and accounts in any reasonable and lawful manner. That the defendant corporation has from time to time prior to the dates herein set forth insisted upon using clocks to check attendance. That the plaintiff has always refused such permission for the reason that same is not a reasonable method of checking attendance, is in violation of the city ordinance as hereinafter set forth and was not a reasonable method of checking attendance at the showing of films.

'4. That the city of Wichita has passed an ordinance No. ......, which charges license fees for clockers or people checking with the use of clocks on the streets of Wichita. That the defendant corporation had used clockers or checkers using clocks on the streets of Wichita in front of said moving picture shows but when said ordinance became effective failed and neglected and refused to take out the license at $5.00 per day for each checker as provided therein. That the defendant corporation, in order to avoid and evade the provisions of said ordinance and avoid the payment of the license fee therein provided prior to June 5, 1946, demanded of the plaintiff that he permit clockers and checkers using clocks to stand off the street and inside the plaintiff's moving picture show houses in order to clock people going into said moving picture houses. That the plaintiff had urged the passage of said ordinance above referred to and that the same has been copied and followed in many cities in the United States. That the enactment of said clocking ordinance has been and is very obnoxious to distributors and that said distributors have opposed the passage of similar ordinances. That the defendant corporation and the defendant Copeland have become incensed at the plaintiff because of his participation in the enactment of such ordinance.

'5. That the defendant Copeland and the defendant Distributing Corporation and others to the plaintiff unknown, sometime prior to June 5, 1946, the exact date being unknown to the plaintiff but well known to said defendants, entered into a conspiracy to compel the plaintiff and others in like situation to permit the use of clockers in said moving picture shows with the intent of evading the ordinance of the city of Wichita above set forth and similar ordinances, and with the intent to create a monopoly in the distribution of films and the manner thereof. That the distribution of films and exhibition thereof is trade and commerce. That said two defendants and others unknown to the plaintiff, conspired and confederated together, creating a combination of capital and skill and acts of two or more persons, firms and corporations, for the purpose herein set forth and to create and carry out restrictions in trade and commerce and to carry out restrictions in the full and free pursuit of business authorized and permitted by the laws of the state of Kansas, to-wit, the display and exhibition of motion picture films, which said combination and restrictions were and are as more fully set forth. That with the purpose and intent aforesaid the defendant Copeland and the defendant Distributing Corporation did on or about June 5, 1946, while the plaintiff was away on a vacation, demand of and from the plaintiff and his employees that plaintiff permit the Distributing Corporation to allow clockers or checkers with clocks on the premises of said theaters and just off the street, and threatened that if he did not so allow checkers and clockers acting for and on behalf of the defendant corporation the said defendants would cancel or cause to be cancelled the plaintiff's contracts and agreements for the showing of films, more particularly the showing of film known as 'The Virginian.' That said demand and threat was addressed to the plaintiff for the reason among others, that the plaintiff had been active in the enactment or securing the enactment of the ordinance of the city of Wichita above mentioned. That upon the refusal of the plaintiff to comply with said demand, the defendant corporation and the defendant Copeland refused to deliver the film known as 'The Virginian' and breached the Distributing Corporation's contract with plaintiff for the delivery of said film for exhibition at the theaters and on the dates hereinbefore mentioned. That while the defendants made said demand upon the plaintiff and refused to deliver said film to the plaintiff, the defendant did not make like demands and did not breach distribution contracts of films with large exhibitors in the same trade territory and, to-wit, the state of Kansas. That said large exhibitors were located in sections and communities and cities of the state and in portions thereof different from that of the plaintiff. That said demand and acts were done for the purpose of destroying competition. That the defendants discriminated against the plaintiff in the particulars herein mentioned, with the intent and purpose to restrict the trade and business of the plaintiff. That said Distributing Corporation is and was engaged in business in the state of Kansas and engaged in the distribution of a commodity in general use, i. e., films for exhibition purposes. That the purpose of said discrimination was to sell to the plaintiff the right to exhibit films at a higher rate than charged for like films under like circumstances to others within the state of Kansas. That said demand was made by the defendants and each of them with the intent to compel the plaintiff to do an act against his will, to-wit, submit to checking with clockers or clocks on his premises for the purpose of evading the provisions of said ordinance and said demand was with menaces and with intent to do injury to the business and property of the plaintiff, to-wit, the carrying on of his business of exhibiting motion pictures, and such demand was made both verbally and in writing as herein set forth. That the use of said clockers or checkers with clocks reflects on the standing of the theater, and is a definite indication to the public and patrons of the theater that

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