WINN AVE. WAREHOUSE v. Winchester Tobacco Warehouse Co., 1454.

• Decision Date: 16 August 1963
• Docket Number: No. 1454.,1454.
• Citation: 220 F. Supp. 741
• Parties: WINN AVENUE WAREHOUSE, INC., Plaintiff, v. WINCHESTER TOBACCO WAREHOUSE COMPANY, Inc., the Burley House, Inc., P. O. Wilson, Ed Smith, Tom Jones and J. H. Waller, a partnership d/b/a the Farmers Warehouse, and the Winchester Tobacco Board of Trade, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

220 F. Supp. 741

WINN AVENUE WAREHOUSE, INC., Plaintiff, v. WINCHESTER TOBACCO WAREHOUSE COMPANY, Inc., the Burley House, Inc., P. O. Wilson, Ed Smith, Tom Jones and J. H. Waller, a partnership d/b/a the Farmers Warehouse, and the Winchester Tobacco Board of Trade, Defendants.

No. 1454.

United States District Court E. D. Kentucky, Lexington.

August 16, 1963.

Eblen, Howard & Milner, Amos H. Eblen, Samuel Milner, Lexington, Ky., for plaintiff.

Gess, Mattingly, Saunier & Atchison, William Gess, Jack Mattingly, Lexington, Ky., for defendants, Winchester Tob. Warehouse Co. Inc., and Tom Jones, and another d/b/a the Farmers Warehouse.

Marshall McCann, Jr., Winchester, Ky., for defendant the Burley House, Inc.

J. Smith Hays, Jr., Winchester, Ky., for the Winchester Tobacco Board of Trade.

HIRAM CHURCH FORD, Senior District Judge.

This is a civil action by which the plaintiff, invoking jurisdiction of the Court under 28 U.S.C.A. § 1337, charges that the defendants entered into a conspiracy to injure and destroy the plaintiff as a competitor in the sale of tobacco at auction in the loose leaf tobacco market at Winchester, Kentucky, and by their wrongful capricious, arbitrary, illegal and unreasonable acts, done in furtherance of the conspiracy, injured plaintiff in violation of the provisions of sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1 and 2, on account of which plaintiff seeks injunctive relief and treble damages under 15 U.S.C.A. § 15.

The plaintiff, Winn Avenue Warehouse, Inc., referred to in the Complaint as "Winn Avenue", and the defendants, Winchester Tobacco Warehouse Company, Inc., referred to in the Complaint as "Winchester", and The Burley House, Inc., referred to in the Complaint as "Burley", are Kentucky corporations having their principal place of business at Winchester, Kentucky, and P. O. Wilson, Ed Smith, Tom Jones and J. H. Waller are partners doing business at Winchester, Kentucky, as The Farmers Warehouse, referred to in the Complaint as "Farmers".

For a number of years the plaintiff and each of the above named defendants have owned and operated their independent warehouses for the sale of loose leaf tobacco in the established market at Winchester, Clark County, Kentucky. The plaintiff and the three warehouses named as defendants were the only warehouses operating in the market.

The specific acts of which plaintiff complains are set out in paragraphs X, XI, XII and XIII of the Complaint as follows:

"X

"Winchester and Farmers, as joint lessees, leased the warehouse owned by Burley for a period of ten years beginning in July 1961, and the lessees then requested the Board of Trade to transfer the basket capacity of Burley's warehouse to the two warehouses, owned and operated by the lessees.

"Plaintiff states on information and belief that Winchester and Farmers divided the 3359 basket capacity of Burley's warehouse between them in an inverse order of the basket capacity of the warehouses of the lessees and accordingly allotted 2000 baskets of the basket capacity of Burley's warehouse to Winchester and 1359 baskets of the basket capacity of Burley's warehouse to Farmers.

"XI

"Thereafter, and prior to October 3, 1961, the defendants, through their majority control of the Board of Directors of the Board of Trade, caused the Board of Trade to approve the transfer of the basket capacity and sales quota of Burley's warehouse to Winchester's warehouse and Farmer's warehouse effective for the ensuing tobacco selling season, and also caused the Board of Trade to provide that sales during the ensuing tobacco selling season should be made in the warehouses in the Winchester Market on the basis of 30% of the basket capacity, although as stated in paragraph VIII hereof, the Board of Trade had provided that sales for the year 1961-62 should be made on the basis of 50% of capacity. The lessees have closed and do not propose to have sales of tobacco in the warehouse leased from Burley.

"XII

"After the approval by the Board of Trade of the transfer of the basket capacity and sales quota of Burley's warehouse, growers of tobacco who have sold, and who would sell, their tobacco on the Winchester Market were informed by letter of this transfer and that the persons who formerly managed the operation of Burley would be employed by the lessees.

"XIII

"The aforesaid acts of the defendants as described in paragraphs X, XI and XII hereof, were and are the result of an agreement and conspiracy of the defendants to injure and destroy the plaintiff as a competitor in the sale of tobacco in the Winchester Market and in violation of the provisions of 15 U.S.C.A., Sections 1 and 2."

The following facts are not in dispute:

1. That at all times herein referred to the Winchester tobacco market was duly designated by the Secretary of Agriculture, pursuant to 7 U.S.C.A. § 511d, as a market where tobacco was to be bought and sold at auction.

2. That in 1952 the Winchester Tobacco Board of Trade was duly incorporated as a non-stock and non-profit corporation under the provisions of K.R.S. § 273.160, for the purpose of managing, regulating and directing the sale of leaf tobacco in the Winchester market, and the plaintiff and the defendants, Winchester, Burley and Farmers operated their independent warehouses for the sale of loose leaf tobacco in accordance with the rules and regulations prescribed by the Board of Trade.

3. That most of the tobacco sold at each of the four warehouses in the Winchester market moves in Interstate Commerce.

4. That by contract of April 7, 1961, a copy of which is filed herein as plaintiff's Exhibit No. 30, Winchester and Farmers, as joint lessees, leased the warehouse owned by Burley for a period of ten years commencing July 1, 1961, together with a quantity of tobacco baskets and certain office equipment and furniture which Burley normally used during the tobacco season, and providing that, from the Burley allotment of 1680 baskets for tobacco sales, Winchester should receive 1000 baskets and Farmers 680 baskets, and that the persons then constituting the Board of Directors of the lessor should not contract or promote the construction of a new tobacco sales warehouse in Clark County, Kentucky, during the term of the lease.

5. Prior to October 1961, the Board of Trade approved the transfer of the basket capacity and sales quota of Burley's warehouse to Winchester and Farmers for and during the ensuing tobacco selling season; and further provided that sales during the ensuing tobacco selling season should be made on the basis of 30% of the basket capacity of each warehouse instead of on the basis of 50% of the basket capacity, as had previously been prescribed by the Board.

6. Under the method of operation the selling season usually began in November of each year and, with the exception of suspension of about two weeks during Christmas holidays, it continued until late January or early February of the following year. Only one set of Government inspectors was authorized for the Winchester market and sales were conducted by only one...