Twentieth Century-Fox F. Corp. v. Brookside Th. Corp.

• Decision Date: 05 May 1952
• Docket Number: No. 14399.,14399.
• Parties: TWENTIETH CENTURY-FOX FILM CORP. et al. v. BROOKSIDE THEATRE CORP.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F.2d 846 (1952)

TWENTIETH CENTURY-FOX FILM CORP. et al. v. BROOKSIDE THEATRE CORP.

No. 14399.

United States Court of Appeals Eighth Circuit.

February 11, 1952.

Writ of Certiorari Denied May 5, 1952.

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John F. Caskey, New York City, and William E. Kemp, Kansas City, Mo. (Byron Spencer, A. L. Cooper, Wallace Sutherland, Joseph J. Kelly, Jr., Richard P. Brous, Kansas City, Mo., and E. Compton Timberlake, Denver, Colo., on the brief), for appellants.

William G. Boatright and Arthur C. Popham, Kansas City, Mo. (Nick C. Spanos, Los Angeles, Cal., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment in favor of plaintiff Brookside Theatre Corporation, appellee herein, and against Twentieth Century-Fox Film Corporation, Paramount Pictures, Inc., Loew's Incorporated, RKO Radio Pictures, Inc., Warner Brothers Pictures, Inc., Warner Brothers Picture Distributing Corporation, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and United Artists Corporation, in an action for treble damages for alleged violation of the Federal Anti-Trust Law, 15 U.S.C. §§ 1, 2 and 15. The action was tried before a jury resulting in a verdict in favor of plaintiff in the amount of $375,000, upon which verdict a judgment for $1,125,000 was entered and thereafter on motion attorney fees were assessed against defendants in the sum of $150,000, besides certain costs and expenditures.

Generally speaking, the defendants are engaged in the business of producing, distributing or exhibiting motion pictures either directly or through subsidiaries or associated companies in various parts of the United States. Plaintiff is a Missouri corporation and in September, 1936, it became the lessee of the Brookside Motion Picture Theatre at 63rd and Brookside Streets in Kansas City, Missouri. The lease was for a fifteen-year term commencing March 1, 1937. In its complaint it charged that its business and property were injured by reason of a conspiracy among and the business practices of the defendants in violation of the Anti-Trust Act, in that defendants and their subsidiaries or interrelated companies, including the National Theater Corporation and Fox Midwest Theaters, Inc., conspired to drive it out of business and to circumscribe, limit and restrain the basis on which it could compete with theaters managed or controlled by defendants and in aid of such alleged conspiracy defendants resorted to various illegal business practices such as requiring defendant to maintain stated minimum admission prices and such as entering into master agreements whereby all of the product owned by the distributor defendants was tied up for an entire season or several seasons at a time of favor of theaters operated by the major defendants and such as granting to defendants' operating subsidiaries special terms and concessions as to price, playing time, eliminations and rebates that were not granted to plaintiff or available to it, and such as establishing substantially uniform systems of runs and clearances in local competitive areas whereby the theaters operated by the major defendants were allowed and permitted to tie up all or substantially all of the desirable runs for subsequent theaters in such local competitive areas. It also charged that such conspiracy and illegal business practices extended throughout the United States for a period beginning prior to 1936 and until long after plaintiff had turned over its Brookside Theater to the Fox Midwest Theaters and that such conspiracy and illegal practices existed, prevailed and were carried out by all of the defendants and National Theaters Corporation and Fox Midwest Theaters, Inc., in Kansas City, Missouri, during said period of time.

It appears from the record that one Harry Jacobs built a theater which he leased to plaintiff for a period of fifteen years. Under this lease agreement plaintiff agreed to furnish and equip the theater and the theater was to seat at least 1000 persons. At the time it was built it was one of the finest suburban theaters in Greater Kansas City and the initial cost to plaintiff for furnishings, equipment and decorations was approximately $34,000 in 1936 and 1937. After equipping and opening the theater plaintiff made frequent and persistent efforts to secure from the various defendants suitable pictures for exhibition but was unable to do so and there was proof warranting the jury in finding that the defendants through a concert of action amounting to conspiracy refused to furnish plaintiff with suitable pictures on terms enjoyed by defendants' controlled picture houses and that concerted action on behalf of the defendants had the effect of making it impossible for plaintiff successfully to operate its picture theater and in effect drove it out of business, forcing it to sell to a corporation controlled by or participating in the conspiracy or combination created by the defendants.

In support of the allegations of plaintiff's complaint it offered in evidence the primary record in a case entitled United States of America v. Paramount Pictures, Inc., D.C., 85 F.Supp. 881, and was permitted to read to the jury that part of the final decrees which incorporated by reference the findings of fact and conclusions of law and to read such portions of the findings of fact and conclusions of law as had direct relation to the charges contained in plaintiff's complaint in the instant action. These decrees and findings adjudicated that defendants and the National Theater Corporation and other corporations not involved in the present suit unreasonably restrained trade and commerce in the distribution and exhibition of motion pictures and monopolized and attempted to monopolize such trade and commerce. This evidence was admitted as against defendants in the instant action who were also defendants in the Paramount case, pursuant to a provision of the so-called Clayton Act, 15 U.S. C. § 16, which provides that a determination in a litigation instituted by the United States that a defendant has violated the Anti-Trust Law "shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto". In addition to the record in the Paramount case plaintiff offered oral and documentary evidence tending to prove that the practices and acts found in the Paramount case to be violative of the Sherman Anti-Trust Act, existing generally throughout the country, were practiced by defendants at Kansas City, Missouri, and that as a result of such practices plaintiff was injured in its business and property.

The sufficiency of the evidence to establish the alleged conspiracy is not directly challenged on this appeal, making it unnecessary to recite in detail the character of this evidence as the jury's verdict on the issue of conspiracy is not here reviewable.

The defendants at the close of all the testimony interposed motions for directed verdicts which were denied and the case was submitted to the jury on instructions to which defendants claim to have saved certain exceptions. The jury having returned a verdict in favor of the plaintiff and against the defendants on all the issues as above recited, the court after denying motion for a new trial entered judgments from which these appeals are prosecuted. The appeals have for the purpose of presentation been consolidated and presented on one record consisting of about 3500 pages.

At the very threshold of our consideration of the issues sought to be presented we are met with a challenge as to the sufficiency of the record, particularly the brief of appellants, to present any issue for review. Rule 11 of this court provides, among other things, that the brief of appellant shall contain, "Third. — A concise statement of the case in so far as is necessary for the court to understand and decide the points to be argued in the brief, giving the pages of the printed record where each fact stated can be found and verified. If a point relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to, and any objections or other equivalent action taken relative thereto, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear. * * * Fourth. — A concise statement of each point to be argued, with a complete list of all cases and statutes referred to in the argument covering the point, — the cases which are considered to be most apposite and convincing, not exceeding four in number, to be printed in bold-face type. Fifth. — A printed argument which shall substantially follow the order of points stated under paragraph `Fourth'. The court will disregard any statement in the argument as to what the record contains unless reference is made to the page of the printed record where the statement may be found or verified. * *"

In the preparation of their brief (which was doubtless prepared by non-resident counsel) counsel for appellants have wholly disregarded this rule. In lieu of "A concise statement of each point to be argued," they have printed what is designated as "Summary of Argument," under which appear the following.

"First. The Court erred in its treatment of United States v. Paramount.

"A. Opening Statement.

"B. Admission of Evidence.

"C. Charge.

"D. Closing Argument.

"Second: The error of the trial court in rejecting defendants' evidence as to the reasons why each licensed the Brookside Theater as it did, denied defendants the right to litigate the fundamental issue of whether their action was conspiratorial.

"Third: The reception of evidence as to profits made by Fox Midwest after plaintiff sold its leasehold and the instructions...