Wm. Goldman Theatres v. Loew's, Inc., 9324.

• Decision Date: 11 August 1947
• Docket Number: No. 9324.,9324.
• Parties: WM. GOLDMAN THEATRES, Inc. v. LOEW'S, Inc., et al.
• Court: U.S. Court of Appeals — Third Circuit

163 F.2d 241 (1947)

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

No. 9324.

Circuit Court of Appeals, Third Circuit.

Argued June 3, 1947.

Decided August 11, 1947.

Wm. A. Gray, Lester J. Schaffer, Francis T. Anderson and Robert Dechert, all of Philadelphia, Pa., for plaintiff.

Wm. A. Schnader, Bernard G. Segal, and Wolf, Block, Schorr & Solis-Cohen, all of Philadelphia, Pa., and Joseph M. Proskauer, of New York City (Schnader, Kenworthey, Segal & Lewis and Morris Wolf, all of Philadelphia, Pa., on the brief), for defendants.

Before PARKER (sitting by designation), BIGGS, Circuit Judges, and LEAHY, District Judge.

PARKER, Circuit Judge.

This is a petition for leave to make application to the District Court for permission to file a bill of review in that court in a suit for injunctive relief and triple damages under the Sherman Act, 26 Stat. 209, 15 U.S.C.A. § 15. Plaintiff is the lessee of the Erlanger Theatre in the City of Philadelphia. It instituted the suit against the defendants who are engaged in the motion picture business, alleging that they had conspired to monopolize the first run motion picture business in the City of Philadelphia and that plaintiff had suffered damage as a result of that conspiracy by reason of inability to obtain first run pictures to show in its theatre. The District Court heard the case and denied relief. D.C., 54 F.Supp. 1011. We reversed the judgment of the District Court on appeal, holding that conspiracy in violation of the statute to the injury of plaintiff had been shown and remanding the case to the District Court with direction to grant injunctive relief and to pass upon the amount of damages which plaintiff was entitled to recover. William Goldman Theatres v. Loew's, Inc. et al., 3 Cir., 150 F.2d 738.

Pursuant to the mandate of this Court, the District Judge held a further hearing on the issue of damages, heard all of the evidence which any of the parties desired to offer and fixed the damages which plaintiff had sustained between September 1, 1941 and December 8, 1942 at $125,000. He arrived at this amount by considering the earnings of other comparable motion picture theatres operated in the City of Philadelphia during the period in question and making allowance for certain disadvantages that the Erlanger Theatre was found to possess. Decree was entered awarding injunction and triple damages to plaintiff and an attorney's fee to its counsel. D.C., 69 F.Supp. 103.

The opinion of this Court was rendered on August 2, 1945, rehearing was denied on September 21, 1945, and our mandate was issued on October 3, 1945. On May 6-9, 1946, hearing pursuant to the mandate was had in the District Court, and the District Judge made his findings and filed his written opinion on September 10, 1946. The final decree was entered December 19, 1946. From this decree appeal was taken on January 7, 1947, and the record on appeal was filed here February 11, 1947. Defendants' brief was due under our rules on March 13th, but by agreement of counsel this time was extended to April 30th. On April 29th, the day before their brief was due under the agreement, defendants filed the petition which is before us, asking leave to make application to the District Court for permission to file a bill of review.

The reason for filing the bill of review, as urged by defendants, is to have consideration given to the fact that, after first run pictures had been made available to plaintiff, the Erlanger Theatre was not opened for the purpose of showing them, but was allowed to remain closed, notwithstanding an increased patronage of motion picture theatres in tthe City of Philadelphia. The bill which defendants proposed to file alleged that in 1943 plaintiff had acquired the Keith and Karlton Theatres in that city and in 1946 had leased and reconditioned another property which it renamed the Goldman Theatre; that beginning with July 1946 it had been offered first run pictures by defendants but had shown them in other theatres and not in the Erlanger; and that between December 19, 1946 and April 25, 1947, it had been offered 63 first run feature pictures by defendant, for 43 of which it had refused to negotiate while allowing the Erlanger to remain unopened. Defendants contend that these facts show that the Erlanger was recognized by plaintiff as unsuitable for the showing of first run pictures and that this evidence should now be brought into the case for the purpose of showing that plaintiff has suffered no damage as a result of the conspiracy alleged and also for the purpose of showing that no such conspiracy in fact existed.

We think it clear that the petition should be denied. The evidence which defendants propose to introduce would, in our opinion, have no probative value either on the issue of conspiracy or on the issue of damages; it is not of such character as would justify the allowance of a bill of review; and, in any event, defendants have not acted with that diligence which would justify the allowance of the filing of the bill.

So far as the probative value of the proposed evidence is concerned, it is clear that it could not possibly affect the conclusion of this court on the issue of conspiracy. That conclusion, as the opinion shows, rested on a far broader foundation than that plaintiff was denied first run pictures for a theatre that he could operate profitably. We found on the whole record that a conspiracy in restraint of trade on the part of defendants existed and we quoted from the opinion of the lower court a sentence to the effect that the intent was "patent — necessarily inferable from the contracts themselves — to exclude the plaintiff and all others except Warner from the first run business".

The finding of the District Court on the last hearing as to the loss and damage suffered by plaintiff did, indeed, rest upon the finding that the Erlanger Theatre could have been operated profitably; but, while upon first view it might appear that the proposed evidence would throw some light on this issue of damages, more mature consideration is convincing that it could have no probative force even on that issue when the time element and change in circumstances are taken into account. The fact that plaintiff in 1946 and 1947, when it had three other theatres in which it could show first run pictures, preferred to operate them rather than the Erlanger does not show, or tend to show that it could not have operated the Erlanger with profit five years before, when the other theatres were not available, if it had been able to obtain first run pictures for that purpose. Any conclusion from the failure to open the Erlanger Theatre in 1946 or 1947 that it could not have been operated profitably in 1941 and 1942, if first run pictures had been available for showing there, is so highly speculative, we think, as not to be worthy of consideration in comparison with the other evidence upon which the finding of the lower court was based.

In addition to this, the evidence offered was not, properly speaking, newly discovered evidence or evidence which could not have been anticipated and which had come into existence after the entry of the decree sought to be reviewed, as is, of course, necessary for such evidence to serve as the basis of a bill of review. It was evidence merely of the continuance of a condition existing at the time of the rendition of the decree. The Erlanger Theatre was closed at that time; and if the lower court or any of counsel had thought that its operation or non-operation in 1946-1947 or the profits to be derived from operation were material factors for consideration in computing damages of the 1941-1942 period, it would have been simple enough to suggest that the award of damages be delayed until such time as operation of the theatre under the protection of the court's injunction would demonstrate what profits or losses would result from its operation. Defendants made no such suggestion, but...