William Goldman Theatres v. Loew's, Inc., Civil Action No. 2877.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtKIRKPATRICK
Citation69 F. Supp. 103
PartiesWILLIAM GOLDMAN THEATRES, Inc., v. LOEW'S, Inc., et al.
Docket NumberCivil Action No. 2877.
Decision Date10 September 1946

69 F. Supp. 103

WILLIAM GOLDMAN THEATRES, Inc.,
v.
LOEW'S, Inc., et al.

Civil Action No. 2877.

District Court, E. D. Pennsylvania.

September 10, 1946.


69 F. Supp. 104

William A. Gray, Francis T. Anderson, Lester J. Schaffer, Edwin P. Rome, and Barnes, Dechert, Price, Smith and Clark, all of Philadelphia, Pa., for plaintiff.

William A. Schnader, Bernard G. Segal, J. Pennington Straus, George Wharton Pepper, and Morris Wolf, all of Philadelphia, Pa., and Joseph M. Proskauer and J. Alvin Van Bergh, both of New York City, for defendants.

KIRKPATRICK, District Judge.

This action is for injunctive relief and for damages alleged to have been incurred as the result of a conspiracy among the defendants to monopolize the motion picture business in Philadelphia. Evidence relating to the primary issue of the existence of the conspiracy was taken and the Circuit Court of Appeals, 150 F.2d 738, 745, reversing the judgment of this Court, 54 F. Supp. 1011, has ruled that there was a conspiracy as charged. In accordance with an agreement of the parties the plaintiff did not offer evidence relating to the issue of damages at the first stage of the trial, pending the decision of the Court on the question of liability under the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note. Testimony relating to damages has now been taken and that issue is before this Court for disposition.

The only reference to damages in the opinion of the Circuit Court of Appeals is the following:

"As the trial court also found, plaintiff has unquestionably suffered loss. We have no means of knowing the extent of that loss. Perhaps, upon remand plaintiff may be able to prove its damages; or, the factors to be considered may be subject to so many unknowns that such damages may veer toward the speculative. We specifically pass no opinion on these problems."

In view of the differences between the parties as to the effect of certain findings of fact made in the first stage of the case, it may be well to say before going further that I do not understand that any finding not adopted by the Circuit Court of Appeals either expressly or by necessary implication as a basis for its decision is irrevocable. In as much as this is merely a continuance of the trial begun November 15, 1943, all relevant evidence in the first as well as the second stage of the trial will be considered, and I see no reason why the findings may not be changed or modified, if, in the light of the entire record now before me, I should conclude that they are wrong or that, as stated, they did not correctly express what I meant to say.

The basic facts of the case, appearing in the findings of this Court and in the opinions of this Court, 54 F.Supp. 1011, and of the Circuit Court of Appeals, 150 F.2d 738, will not be restated here.

The "damage period" is from September 1, 1941, to December 8, 1942, the date of bringing this suit. During this period the plaintiff's theatre, the Erlanger, was to all intents and purposes closed, although some few exhibitions given in it produced gross rentals and other income, amounting in all to $7,237.59. Being unable

69 F. Supp. 105
to obtain first-run pictures, Mr. Goldman did not attempt to operate the theatre on second or subsequent runs. He was not bound to do so. The duty to lessen damages which the law imposes on an injured party does not go beyond the exercising of ordinary care and incurring moderate expense. He is certainly not required to enter upon and carry on a business differing in important particulars from that in which he has been or intends to be engaged

The plaintiff claims as damages (1) loss of the profits which it contends it would have made during the damage period had it been able to operate the Erlanger as a first-run theatre in free competition, plus (2) out-of-pocket expenses amounting to $25,007.34, being what it actually cost it to maintain its lease of the Erlanger during the damage period, less the $7,237.59 of income obtained from it.

Obviously, the plaintiff is not entitled to both items of its claim. They are based upon two entirely distinct and mutually exclusive theories of recovery. On the profit theory the plaintiff's damages are the excess of income over cost of a purely hypothetical operation of a going business. Of course, any loss arising from the use to which the property was actually put, such as the so-called out-of-pocket expenses, does not enter into the calculation at all, except possibly as evidence in connection with estimating the hypothetical cost figure. On the out-of-pocket theory, the damages are what it actually cost the plaintiff not to operate the property as a first-run theatre. If it be assumed that the plaintiff would have made money had it operated the theatre, no loss would have been incurred in the hypothetical operation and I do not see how the plaintiff can ask the Court first to assume a state of facts under which it lost no money but, on the contrary, realized a profit, and then say "But, as a matter of fact, the property was not operated as a moving picture theatre at all, but simply maintained for what use could be made of it," and ask the Court to be allowed to have its theoretical profit and, in addition, add to that the amount spent to maintain the property. The plaintiff may not have damages both for a net profit and a net loss, for the same fifteen months.

Because I am of the opinion that the plaintiff is entitled to recover the larger item, of profits, I shall not deal further with the out-of-pocket expenses, remarking only that, had the plaintiff failed to make a case for profits, it would unquestionably be entitled to its net actual loss.

The allowance of profits as damages is entirely a question of sufficiency of evidence. There is no objection to profits, as such, as an element of recoverable damage. In every case the question is whether the data of which the evidence consists is such that a just and reasonable estimate can be drawn from it, so that a verdict will not be based on mere speculation or guesswork, it being fully recognized that it is not necessary to show with absolute accuracy how much profit would have been earned.

I do not find in any decision of the Supreme Court the hard and fast rule, which the defendants assert exists, that under no circumstances can there be any recovery for loss of profits in an anti-trust case unless an established business has suffered. If there were such a rule it would end the plaintiff's case on profits, because the plaintiff had no established going business in first-run showings at the time of the tort. In fact the Erlanger had not, since it was built, been operated as a moving picture theatre at all, except for a period of about nine months, occurring more than ten years before the plaintiff leased it.

There are several lower federal court opinions in which general statements in accord with the defendants' contention appear, but in them there were no facts from which the amount of profits could have been determined otherwise than by a pure guess, and that was the nub of the decision in each case. Of course, when the plaintiff has no established business showing potentiality of profits to start with, it will not be so easy for him to produce evidence from which profits can be determined with any degree of certainty, and in most cases it has turned out that he was unable to do so. But there is no logic or sound policy in a rigid rule that will foreclose him if his evidence, without

69 F. Supp. 106
it, is sufficient to get the Court beyond the guessing stage. The whole matter is a question of the evidence. "It is sufficient if a reasonable basis...

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43 practice notes
  • Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., No. 95-1460
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Noviembre 1995
    ...was "not 'sufficient to get the Court beyond the guessing stage.' " Id. at 1209 (quoting William Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103, 106 (E.D.Pa.1946), aff'd, 164 F.2d 1021, 1022 (3d Cir.1947), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 16 We understand the......
  • Atlantic City Electric Company v. General Electric Company
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Enero 1964
    ...Doctrines of Damages in Private Antitrust Suits, 52 Mich.L.Rev. 363, 401 (1954). But see William Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103, 105 (E.D. Pa.1946), petition for leave to file a bill of review denied, 163 F.2d 241 (3 Cir. 1947), aff'd per curiam, 164 F.2d 1021 (3 Cir......
  • International Wood Processors v. Power Dry, Civ. No. 82-2115-14.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 14 Agosto 1984
    ...Valley Marine Supply Co. v. American Tobacco Co., 184 F.Supp. 440, 443 (E.D.Pa.1960); Wm. Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103 (E.D.Pa.), aff'd, 164 593 F. Supp. 725 F.2d 1021 (3d Cir.), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); see also Annot., supr......
  • NW Controls, Inc. v. Outboard Marine Corporation, Civ. A. No. 3730.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 28 Octubre 1971
    ...at 632-634; Volasco Products Co. v. Lloyd A. Fry Roofing Co., supra, 308 F.2d at 395-396; William Goldman Theatres, Inc. v. Loew's Inc., 69 F.Supp. 103 (E.D.Pa. 1946), aff'd 164 F.2d 1021 (C.A.3, 1948), cert. denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); Pastor v. American Telep......
  • Request a trial to view additional results
43 cases
  • Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., No. 95-1460
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Noviembre 1995
    ...was "not 'sufficient to get the Court beyond the guessing stage.' " Id. at 1209 (quoting William Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103, 106 (E.D.Pa.1946), aff'd, 164 F.2d 1021, 1022 (3d Cir.1947), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 16 We understand the......
  • Atlantic City Electric Company v. General Electric Company
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Enero 1964
    ...Doctrines of Damages in Private Antitrust Suits, 52 Mich.L.Rev. 363, 401 (1954). But see William Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103, 105 (E.D. Pa.1946), petition for leave to file a bill of review denied, 163 F.2d 241 (3 Cir. 1947), aff'd per curiam, 164 F.2d 1021 (3 Cir......
  • International Wood Processors v. Power Dry, Civ. No. 82-2115-14.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 14 Agosto 1984
    ...Valley Marine Supply Co. v. American Tobacco Co., 184 F.Supp. 440, 443 (E.D.Pa.1960); Wm. Goldman Theatres, Inc. v. Loew's, Inc., 69 F.Supp. 103 (E.D.Pa.), aff'd, 164 593 F. Supp. 725 F.2d 1021 (3d Cir.), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); see also Annot., supr......
  • NW Controls, Inc. v. Outboard Marine Corporation, Civ. A. No. 3730.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 28 Octubre 1971
    ...at 632-634; Volasco Products Co. v. Lloyd A. Fry Roofing Co., supra, 308 F.2d at 395-396; William Goldman Theatres, Inc. v. Loew's Inc., 69 F.Supp. 103 (E.D.Pa. 1946), aff'd 164 F.2d 1021 (C.A.3, 1948), cert. denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); Pastor v. American Telep......
  • Request a trial to view additional results

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