196 F. 514 | D.N.J. | 1912
The plaintiff has filed his declaration against 28 persons (defendants so called), and this motion is made on behalf of the E. I. Du Pont de Nemours Powder Company, Eastern Dynamite Company, and International Smokeless Powder & Chemical Company, three of the four defendants who were served
“The court or a judge may on four days’ noticé strike out any pleading which is irregular or defective, or is so framed as to prejudice, embarrass or delay a fair trial of the action.”
The motion' takes the place'of a special demurrer, deals with the form and not the substance of the pleading, and is addressed to the sound discretion of the court. More strictness is required in stating the substance of a cause of action than the form of it.
“Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefore in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three fold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.”
The unlawful things alleged to have been done by the defendants to the injury of the plaintiff are said to be denounced by sections 1 and 2 of such act, which sections are as follows:
“Section 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or ■ engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
“See. 2. Every person who shall monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall' be*517 punished by a fine not exceeding five thousand dollars, or lw imprisonment not exceeding one year, or by both said punishments, in the discretion of the court."
The first section of this act denounces restraint of interstate trade in two ways — by contract and by a combination or conspiracy — and in the second’ section the monopolizing and attempt to monopolize any of such trade is denounced. To maintain an action under this act, therefore, the plaintiff must allege as well as prove that the defendant committed one of such forbidden acts, and that in consequence he was injured in his business or property. Northern Securities Co. v. U. S., 193 U. S. 197-403, 24 Sup. Ct. 436, 48 L. Ed. 679; Rice v. Standard Oil Co. (C. C.) 134 Fed. 464; Cilley v. United Shoe Mach. Co. (C. C.) 152 Fed. 726; People’s Tobacco Co. v. American Tobacco Co., 170 Fed. 396-407, 95 C. C. A. 566; Ware-Kramer Tobacco Co. v. American Tobacco Co. (C. C.) 180 Fed. 160. In the pleading, plaintiff must declare tbe forbidden acts ' and consequent injuries in such clear and unambiguous language, and with such reasonable certainty, that the defendants and the court may be apprised of the alleged cause of action, that it may be known by the former how to answer and prepare for trial, and by the latter what is the nature of the issue, and, if it be one of fact, to control the character of the proofs offered at the trial, and to pronounce and enforce a judgment that will settle the rights involved in such issues.
The declaration contains one count composed of 17 lengthy paragraphs, set out in the margin hereof.
The grounds of the motion to strike out are two: First, duplicity; second, that the allegations are so defective as to prejudice the defense.
The fifth paragraph, which, it is said, discloses a cause of action different from that authorized by the Anti-Trust Act, also deals in part with matters of inducement. In this instance, the introductory matter leads up to the incorporation of the plaintiff and the efforts made by its promoter to secure a favorable location for its manufacturing plant. It also sets forth various steps alleged to have been taken by the officers and agents of one of the subsidiary companies of the New Jersey Company to prevent the organization of plaintiff and its engaging in the manufacture and sale of such powder in furtherance of -such conspiracy to perpetuate a monopoly in such trade.
The fourteenth paragraph, which, it is contended, also states a different cause of action, alleges that the New Jersey Company, in its purpose to prevent competition, and to secure for itself and its associates a monopoly of the powder trade, entered into a combination to control the output of the manufacturers of high grade powder-making machinery, and succeeded thereby in preventing the plaintiff, except at great cost, from obtaining machinery for the equipment of its plant. Obviously the allegations in each of these paragraphs do not relate to a cause of action other than one of those authorized by such Anti-Trust Act. The illegal acts therein charged are but steps in furtherance of the conspiracy alleged in the other paragraphs of the declaration.
In the seventeenth paragraph, which, it is said, also alleges a different cause of action, the pleader asserts that it is entitled to recover punitive or vindictive damages by reason of the malicious and wicked acts of the defendants, and particularly those of the New Jersey Company. The right thereto, however, is therein stated to be founded upon the wrongs set forth in the declaration; and, as these wrongs are said to be the mentioned violations of the Anti-Trust Act, the pleader in no sense asserts a cause of action having any other basis. The case of Ware-Kramer Tobacco Co. v. American Tobacco Co. (C. C.) 178 Fed. 117, cited by the defendants in support of their contention of duplicity as to the seventeenth paragraph, is not applicable to the case at bar. In that case the declaration contained two counts. The first count was founded upon the Anti-Trust Act; the second, upon a c.ommon-law tort. Manifestly in that declaration there were two distinct causes of action. In the cited case the decisive point was not whether a double cause of action was stated in one count, but whether the court had obtained jurisdiction over one of the defendants as to the cause of action stated in the second count. In the case at bar there is no such question. Whatever may be said of the plaintiff’s characterization of the conduct of the defendants, and its assertion of its right to recover punitive or vindictive damages by reason thereof, its claim for such damages does not make the declaration bad for duplicity.
The cause of action pleaded throughout the declaration is single, and therefore is not bad for duplicity.
Defendants rely almost entirely upon Rice v. Standard Oil Co., supra, as authority that in the particulars pointed out by them to be
”A bill in equity is not to be read and construed as an i dirtment would have been read and construed si hundred years ago. but it is to be taken to mean what it fairly conveys to a dispassionate reader by a fairly exact use of English speech. Thus read, this bill seems to us intended to allege successive elements of a singie connected scheme. * * * The general objection is urged that the bill does not set forth sufficient definite or specific facts. This objection is serious, but it seems to us inherent in the nature of the case. The scheme alleged is so vast that it presents a new problem in pleading. If. as we must assume, the scheme is entertained, it is, of course, contrary to the very words of the statute. Its size makes the violation of the law more conspicuous, and yet the same thing makes it impossible to fasten the principal fact to a certain time and place. The elements, too, are so numerous and shifting, even the constituent parts alleged are and from their nature must be so extensive in time and space, that something of the same impossibility applies to them. The law has been upheld, and therefore we are bound to enforce it notwithstanding these difficulties. * * * Tins scheme as a whole seems to us to be within reach of the law. The constituent elements, as we have stated them, are enough to give to the scheme a body and. for all that we can say. to accomplish it. Moreover, whatever we may think of them separately when we take them up as distinct charges, they are alleged sufficiently as elements of the scheme.”
Loewe v. Lawlor, 208 U. S. 274. 28 Sup. Ct. 301, 52 L. Ed. 488. was considered by the Supreme Court on complaint and demurrer in an action brought under this act similar to the one at bar, in which the court reiterated its liberal attitude in the matter of pleading an’ alleged cause of action founded upon the Anti-Trust Act. In Ware-Kramer Tobacco Co. v. American Tobacco Co. (C. C.) 178 Fed. 117, on special demurrer to the complaint, in a similar action to the one at bar, and in which a like attack upon the alleged cause of action was made, after a review of the cases which are here cited and others, the court said at page 125 of 178 Fed.:
“The evil at which the statute is aimed is of national importance, and the remedies provided for its punishment and repression should not be restricted by technical and narrow rules of pleading. If the plaintiff in an intelligent; way and by ‘a connected story’ sets forth his grievance, he should not be turned away from the court or his pleading so mutilated, by striking out more or less essential averments, as to embarrass him and unduly limit the scope of his proof when he comes to trial.”
Paragraphs 6, 7, and 8 are alleged to be uncertain and indefinite in not apprising of “the methods and devices employed to prevent the plaintiff from acquiring any portion of the powder trade,” and in failing to give names, etc. An examination of these paragraphs shows that paragraph 6 avers only matter of inducement relating to trade conditions previous to the incorporation of both the plaintiff and the New Jersey Company, and liow the plaintiff availed itself of a favorable location of its plant with reference to freight and transportation facilities, and that paragraphs 7 and 8, after averring that defendants entered into the conspiracy before mentioned to coerce plaintiff, and that the cost thereof was to be apportioned among such defendants ratably, and that the New Jersey Company employ eel every method and device known to its agents to prevent plaintiff from getting any of the powder trade, to destroy its credit and withdraw from it its customers, and the methods employed for such purpose, conclude with the statement, “as more particularly hereinafter set forth.” Obviously, as far as the defendants’ allegations of infirmity are concerned, these paragraphs cannot be considered alone, but must be read and interpreted in connection with the paragraphs following.
Paragraph 9 avers that the New Jersey Company, “at various times after plaintiff’s plant went into operation, employed evilly-disposed persons to enter the mines of operators who had made purchases of black blasting powder of plaintiff * * * so as to in (luce the purchaser to reject the same, * * * and in some instances these methods succeeded, * * * and by reason of such wrongful and wicked conduct certain consignments of powder from plaintiff’s mills were from time to time rejected.” These allegations are very general, and the subject-matter is one that carries the suggestion that more particular knowledge of the dates when and the mines where such occurrences took place, and the customers lost by such methods, is in the possession of the plaintiff than stated. This knowledge, however, can be had on demand for a bill of particulars; and as the plaintiff on the argument hereof, and reiterated in the briefs, offered to furnish greater particulars of any of its averments, if required, defendants will be relieved of any supposed prejudice from the generality of the allegations by taking that course. The ñrrther averment in this paragraph that various committees of the miners waited upon the plaintiff, proposing to withdraw their opposition to plaintiff’s powder for a consideration, is impertinent and irrelevant to any issue that can be raised in the cause, and should be stricken out. The further averment in this paragraph concerning the mingling of defendant’s employes with such miners to induce them to reject plaintiff’s powder does not give the names of any such persons. As the names of the defendant’s employes ordinarily are more likely to be known by defendants, if such averment accords with the fact, that allegation will not be struck out. The same ruling applies to the failure to name some of the persons in the allegations of the tenth paragraph, where it is charged
Paragraph 13 recites an explosion at plaintiff’s mills, which, it is alleged, was exaggerated by the New Jersey Company to create a feeling of distrust among plaintiff’s customers of its ability to meet future requirements, with the purpose of obtaining its customers,- etc. So much of the paragraph as relates to the manner of the explosion and its effect upon the plant and employes is evidential, and in some respects irrelevant in character, but as it may be treated as introductory to the complained of acts of the New Jersey Company in relation to such explosion, and as it can in no way embarrass or prejudice the defendants in their defense, it will not be-struck out.
Taking the declaration as a whole, it discloses several and various steps alleged to be in furtherance of the conspiracy to prevent legitimate competition in such powder trade. These steps are: Efforts to frustrate the organization of the plaintiff and to prevent it from securing any or a favorable site for its plant; attempts to coerce it into combination with such defendant or to drive it out of business, as by seeking to induce each consumer of the kind of powder manufactured by plaintiff to enter into long-time contracts with defendant to give it the exclusive trade in such powder; to remove such consumers from the open market for a sufficiently long time to prevent plaintiff from getting enough business to run its mills on a profitable basis; that such contracts were obtained sometimes by secret rebates and special prices, by threats to prevent plaintiff’s customers from obtaining pow-, der not manufactured by plaintiff, by circulating exaggerated reports of mishaps at plaintiff’s mills to create misgiving among its customers of its ability to meet their future requirements; by false statements of the quality of the plaintiff’s powder, by threats to discredit its customers’ solvency among their creditors, and by offers of financial assistance; that, when such contracts were not made, other coercive steps were taken, such as selling below cost in certain areas to destroy competition, while maintaining excessive prices in territory not entered by independent companies in order to recoup its losses sustained by such underselling; underselling plaintiff, regardless of price; obtaining by corrupt means confidential information about plaintiff’s
The declaration in the Loewe v. Tawlor Case, set out in full in the margin of the reported opinion, and which was there held to show a case within the statute, is not so different in respect to the generality of many of its allegations from the declaration here considered as to admit of a different finding, if the objections related to its declared cause of action, rather than the form of stating it. While many of the matters that may be considered on a motion to strike out could not be entertained on general demurrer, nevertheless, it cannot be held that the allegations herein attacked are so vague and indefinite as to prejudice the defendant in making answer thereto.
The motion to strike out the declaration is denied, but the parts herein specifically condemned as faulty are expunged therefrom without costs to either party.
Note. — Tie following is the declaration referred to in the opinion:
DECLARATION.
Action under Section 7 of Act of Congress of July 2, 1890.
To the Honorable Judges of the Above-Entitled Court:
The E. I. Du Pont de Nemours & Company (a corporation of Delaware), E. I. Du Pont de Nemours Powder Company (a corporation of New Jersey), E. T. Du Pont de Nemours & Company (a corporation of Pennsylvania), Dn Pont International Powder Company (a corporation), Delaware Securities Company (a corporation), California Investment Company (a corporation), Delaware Investment Company (a corporation), the Hazard Powder Company (a corporation), Tallin & Rand Powder Company (a corporation), Eastern Dynamite Company (a corporation), Fairmont Powder Company (a corporation), International Smokeless Powder ,& Chemical Company (a corporation), Judson Dynamite & Powder Company of California (a corporation), Alexis I. Du Pont, Alfred 1. Du Pont, Eugene Du Pont, Eugene E. Du Pont, Pierre S. Du Pont, Henry X*1. Du Pont, Irenée Du Pont, Francis 1. Du Pont, Thomas Coleman Du Pont, Victor Du Pont, Jr., Jonathan A. Haskell, Arthur J. Moxham, Hamilton M. Barksdale, Edmond G. Buckner, and Frank L. Connable. the defendants in this suit were summoned to answer the Buckeye Powder Company, the plaintiff therein, in an action for damages under the seventh section of the act of Congress of July 2, 1890, known as the “Sherman Act"; and thereupon the plaintiff, by MacFarland, Taylor & Costello, its attorneys, complains as follows, to wit: Whereas
First. That plaintiff, is and has been ever since on or about the 15th day of February, 1908, a corporation duly organized and existing under the laws of the state of Delaware; that the purpose of the incorporation and organization of plaintiff was to carry on the business of manufacturing and selling powder and other explosive's, and particularly black blasting powder; that it began such business on or about the 1st day of September, 190,‘S, and continued in and conducted said business down to the 19th day of September, 1908, and during all of said period its business was interstate and conducted in the state of Illinois, Iowa, Indiana, Ohio, Michigan, Minnesota, Missouri, Montana, Kansas, Nebraska, Colorado, Wyoming, West Virginia, and Indian
Second, That the defendant E. I. Du Pont de Nemours & Company is, and has been ever since the 26th day of February, 1902, a corporation organized and existing under the laws of the state of Delaware; that the defendant E. I. Du Pont de Nemours Powder Company is, and has been ever since the 19th day of May, 1903, a corporation organized and existing under the laws of the state of New Jersey; that the defendant E. I. Du Pont de Nemours & Company of Pennsylvania is, and has been ever since the 11th day of September, 1903, a corporation organized and existing under the laws of the state of Pennsylvania; that the Du Pont International Powder Company is, and has been ever since the 14th day of December, 190S, a corporation organized and existing under, the laws of the state of Delaware; that the defendant the Delaware Securities Company is, and has been ever since the 20th day of September, 1902, a corporation organized and existing under the laws of the state of Delaware; that the California Investment Company is, and has been ever since the 7th day of April, 1903, a corporation organized and existing under the laws of the state of Delaware; that the Delaware Investment Company is, and has been ever since the 20th day of September, 1902, a corporation organized and existing under the laws of the state of Delaware; that the Hazard Powder Company is, and was during the times hereinafter mentioned, a corporation organized and doing business under the laws of the state of Connecticut; that the defendant Laflin & Band Powder Company is, and was during the times hereinafter mentioned, a corporation organized and doing business under the laws of the state of New York; that the defendant the Eastern Dynamite Company is, and was during the times hereinafter mentioned, a corporation organized and doing business under the laws of the state of New Jersey; that the defendant Fairmont Powder Company is, and was during the times hereinafter mentioned, a corporation organized and existing under the laws of the state of West Virginia; that the defendant the International Smokeless Powder & Chemical Company is, and was during the times hereinafter mentioned, a corporation organized and existing under the laws of the state of New Jersey; that the defendant Judson Dynamite & Powder Company of California is, and was during the times hereinafter mentioned, a corporation organized and existing under the laws of the state of California; and the defendants and each of them am and were during the times hereinafter mentioned, engaged in .interstate trade and commerce in the shipment and sale of gunpowder and other high explosives among the states and .territories of the United States and in foreign countries.
Third. That the individual defendants, Thomas Coleman Du Pont, Pierre S. Du Pont, Alexis I. Du Pont, Alfred I. Du Pont, Eugene Du Pont, Eugene E. Du Pont, Henry F. Du Pont, Irenée Du Pont. Francis I. Du Pont, Victor Du Pont, Jr., Arthur J. Moxham, Hamilton M. Barksdale, Edmond G. Buckner, Frank D. Connable, and Jonathan A. Haskell are and each of them is a citizen aud resident of the state and district of Delaware, and said individual defendants, and each of them as officers and directors of the defendants mentioned in the last preceding paragraph, or some of them, have participated in, directed, and managed their affairs in the conduct of the interstate trade aforesaid.
Fourth. Plaintiff shows that for a long time previous to the year 1902, to wit. for a period of more than 30 years and by means of many agreements and the adoption of many forms, certain manufacturers and vendors of powder and other explosives in the United States and foreign countries, including some of the defendants above mentioned, had attempted to establish, and in a measure had succeeded in establishing, a more or less complete monopoly of said trade in their own hands; that by forcing their competitors out of business or coercing them into a union with them, by imposing fines and penalties for violation of said agreements to monopolize
Fifth. Plaintiff shows that, a short time previous to the date when plaintiff was incorporated and organized as hereinbefore set forth, one R. S. Wad-dell, who afterwards became its president and general manager, eonceivod the idea of organizing, and afterwards perfected the organization, of plaintiff for the purpose of entering into the business of the manufacture and sale of black blasting powder, and his active experience and acquaintance with .the powder trade in the United States and foreign countries for a period of more than 30 years enabled, him to determine with scientific accuracy the best and most practical field for successful operation of a plant with which to conduct such business; that the defendants well knew of the experience and ability of said Waddell as a powder expert and salesman, 'and well knew that his acquaintance with the powder trade was wide and accurate; that as soon as the said defendants became aware of the purpose of the said AVaddell to organize plaintiff and engage in the manufacture and sale of black blasting powder, and with the intent and purpose
Sixth. Plaintiff shows that, by reason of the dangerous nature of powder and other explosives, the matter of freight rates and transportation facilities are important and often controlling factors in determining the price or prices at which the same can be delivered to the consumer profitably and economically; and for this reason the powder trade of the United States and adjoining countries, if left free to adjust itself naturally, would tend to the establishment of many local plants and to active competition between manufacturers, and would thereby result in great benefit to the consumer, and would thereby tend to maintain prices at such figures as would produce reasonable and living profits to the manufacturer; that this is particularly true of black blasting powder, which is nio«t commonly used in eoal mining operations; that long experience has demonstrated that one pound of sueii powder will be consumed on the average to each ton of coal mined. Plaintiff further shows that by reason of the matters and things, set forth in tills paragraph, and by reason of the fact that there was previous to the year 190.3 a. great extension of coal mining operations and a large and rapidly developing trade in black blasting powder in the states of Illinois, lows, Indiana. Ohio, Michigan, Minnesota, Missouri, Montana, Kansas, Nebraska, Colorado. Wyoming, West Virginia and Indian Territory, and the foreign country of Mexico, the promoters of the business in which plaintiff was organized to engage, with the intent and purpose to supply a natural market and demand and to conduct a legitimate and profitable business in the manufacture and sale of black blasting powder, selected a point near the city of Peoria, state of Illinois, as the most favorable location for its plant and
Seventh. Plaintiff shows that by reason of the favorable location of its mills and plant as hereinbefore alleged, and by reason of the superior facilities of transportation and freight rates afforded thereby, it was able to meet the requirements of consumers of black blasting powder in the states, territory, and foreign country above mentioned, at the lowest price at which the same could be made and supplied and leave a fair and living profit; that it was willing and able to engage in fair and open competition for the said trade with any other manufacturer or manufacturers of black blasting powder; that defendants, well knowing this fact, but being desirous to prevent fair and open competition, or in fact any competition at all, and with the design and intent to coerce plaintiff into a combination with said defendants, or to drive it out of business, and thereby stifle competition in said district, entered into a conspiracy with each other, whereby all the other defendants except the E. I. Du Pont de Nemours Powder Company agreed to retire from the business of supplying or competing for the trade in said states, territory, or foreign country, and thus leave the said E. I. Du Pont de Nemours Powder Company a clear field to carry on a war of extermination against plaintiff and drive it out of business; and in pursuance of said agreement and as part thereof an arrangement was made between said conspirators whereby all losses were to be apportioned among them ratably, and whereby the said defendant E. I. Du Pont de Nemours Powder Company should be compensated for all losses which it might incur or suffer in carrying on such war of extermination. Thereupon the said defendant' E. I. Du Pont de Nemours Powder Company appointed a committee (known and designated as “the Peoria Committee”) to have charge of and conduct said fight against plaintiff, and in further pursuance of said arrangement, for the purpose of enabling the defendant E. I. Du Pont de Nemours Powder Company- to conduct a more effective campaign against your petitioner, all of the other defendants withdrew their agencies from, said city of Peoria and ceased all effort to secure any of the trade in black blasting powder for themselves within said states, territory, and foreign country, taking in lieu thereof certain allotments of trade elsewhere to compensate them for the trade thus yielded; that thereupon the said defendant E. I. Du Pont de Nemours Powder Company began and continued a most determined, bitter, and disastrous warfare against plaintiff to destroy its business and prevent it from acquiring any new business and to drive it out of business entirely, as more particularly hereinafter set forth.
Eighth. Plaintiff further shows that the defendant E. X. Du Pont de Ne-mours Powder Company instituted shortly after the organization of said company, and maintained and still maintains as a part of its organization for the more effective prevention and suppression of competition, a department or bureau known as the “Bureau of Information” (sometimes caUed “Trade Reports Bureau”); that the headquarters of said bureau was established and has since been kept at the head office of said defendant in the city of Wilmington, Delaware; that said bureau has maintained and still maintains a system of agents, emissaries, spies, and detectives throughout the various states and territories of the United States and in some foreign countries for the purpose of collecting and reporting all facts, rumors, and information of every kind concerning the trade in powder and other explosives, and concerning the various consumers and manufacturers of the
Ninth. Plaintiff shows that there was, during the period while plaintiff was engaged in the manufacture and sale of powder, an association known as the “Coal Operators’ Association,” composed of the owners and operators of coal mines in the state of Illinois and other states, and another association known as the “Miners’ Union,” composed of miners engaged in mining said mines; that annually, or as often as might appear to _be_ necessary, an agreement was regularly entered into between said associations to the effect that the members of the Operators’ Association should originally purchase all powder necessary to be used in the mining operations to be carried on in all mines owned or operated by them, and that the members of the Miners’ Union would buy of the operators all the powder used by them in performing the work in such mines, at the agreed price of one dollar and seventy-five cents ($1.75) per keg; that said price was fixed and unchangeable during the life of said agreement, regardless of the price at which the operators might be. able to purchase said powder; that these agreements have sometimes produced discord between the members of the two associations, and have sometimes led to claims of injustice on, the part of the miners against the operators by reason of the variation in tbe prices at which the operators may have been enabled to purchase the powder from the manufacturer. And plaintiff shows that the defendant E. I. Du Pont de Nemours Powder Company, at various times after plaintiff’s plant went into operation, employed evilly-disposed persons to enter the-mines of. operators who had made purchases of black blasting powder of plaintiff, for the purpose of stirring up discontent among the miners and to instill into their minds prejudice against said powder, and to cause them to refuse to use the same, so as to induce the purchaser to reject the same, intending and planning thereby to secure to itself the business of said operators; and in some instances these methods succeeded in producing boycotts by said miners against the powder manufactured by plaintiff, and by reason of such wrongful and wicked conduct certain consignments of powder from plaintiff’s mills were from time to time rejected and returned, and further purchases were discontinued through fear of causing disagreements and disturbances which would lead to shut-downs and idleness. Plaintiff further shows that such a condition was the more easily created by reason of the fact that the Miners’ Union always reserved the right under said agreements to select the grade and make of powder which the operator was bound to purchase; and in order to foment unjust opposition and strife, certain persons were employed by said defendant E. I. Du Pont de Nemours Powder Company.to travel from place to place and mingle with the miners of the various coal mines- to insidiously induce them to believe that it was for their interest to reject the powder manufactured by the plaintiff, and certain influential miners were employed to make use of their influence with their fellow workmen to induce them to boycott such powder; that in some cases intoxicating liquors were distributed among said miners, sometimes clothing, food, and household articles were distributed among said miners and their families, and sometimes cash was paid to various of said miners to obtain their co-operation and influence with their fellow workmen as aforesaid; that these methods were sometimes carried to such an extent as to become open and public scandals, and from time to time various committees of said miners waited upon the officials of plaintiff with propositions to desist in their opposition if plaintiff would increase the compensation which. they were already receiving from said defendant, its’ agents, and emissaries; that by reason of the matters and things alleged in this paragraph the good order and peace of the community was disturbed and set at naught, and the morals of said employés corrupted, and the coal mining business of said
Tenth. Plaintiff shows that the defendant K. I. Du Pont de Nemours Powder Company on various occasions caused various persons to seek employment with plaintiff for the purpose of entering its mills and plant and obtaining its manufacturing and business secrets, and plaintiff, being ignorant of the purpose of said persons in seeking employment, and not suspecting their duplicity and fraud, and being desirous of obtaining their services, gave employment 1o some of such persons, and particularly to one Colburn, who was employed as a competent and trustworthy person to act as superintendent of its plant and mills; that subsequently plaintiff ascertained that said Colburn prepared frequent reports of its business, and of the various processes used by it, and of the amount of powder manufactured and shipped by it, and of the names and addresses of the, consignees, all of which were regularly transmitted to the defendant E. I. Du Pont de Nemours Powder Company at Wilmington, Delaware; and in other instances the said defendant E. T. Du Pont de Nemours Powder Company succeeded in enlisting the services of employes of various railway companies receiving powder from plaintiff for transportation to its customers (particularly certain employes of the Chicago, Burlington & Quincy Railroad Company) to furnish said defendant with daily telegraphic reports of all shipments made by plaintiff! from its mills and passing through their hands; that sometimes in consideration of said services said defendant agreed to pay and did pay said railway employes one dollar (Sil) for each telegram and five dollars (?5) for each letter sent to the said defendant or any of its agents or emissaries and carrying any such information; and said defendant agreed to and did pay others of said employes various sums of money by way of salary. And plaintiff further shows that immediately, and continuously for a long period of time, the information so obtained was made use of by the said E. I.' Du Pont de Nemours Powder Company in various ways to induce said consignees to reject shipments from, and to abandon, phi intiff and thereafter to purchase black blasting powder of said defendant exclusively, and in some cases such customers were thereby induced to desert, plaintiff’, and in other cases to reject the shipment already consigned.
Eleventh. Plaintiff shows that the said K. T. Du Pont de Nemours Powder Company, as a part of its plan to create and maintain a monopoly in the powder trade of the United States and foreign countries, and intending to ruin plaintiff and drive it out of business, sought to make it impossible for plaintiff to secure any trade whatsoever in said states, territory, or foreign country by inducing each consumer-of black blasting powder therein to enter into a secret, contract with said defendant whereby said consumer bound himself to give the said defendant his exclusive trade in said powder for a term of years, varying from one to five years; that said contracts were secured sometimes by promises of special privileges and prior right over other persons for delivery, sometimes by threats to deprive such consumer of the right to purchase other grades of powder and explosives not manufactured by the'plaintiff, sometimes by misrepresenting the capacity of plaintiff’s mills and plant, sometimes by circulating false and damaging 'statements through Its agents and emissaries concerning accidents at plaintiff’s mills and plant, sometimes by false and malicious statements concerning the quality of plaintiff’s powder, sometimes by throats to discredit such consumer’s solvency among Ms creditors, sometimes by offers of financial assistance to such consumers, sometimes by stirring up strife among the employes of such consumer as hereinbefore alleged, and by various oilier unlawful and wicked conduct. And plaintiff further shows that the terms of said contracts, and even the existence thereof, were in all cases made strictly confidential, for tile reason that the said defendant well knew that said contracts were unjust, unfair, unlawful, and that they were especially contrary to the act of Congress known as the ".Sherman Act,” and made, in defiance of said act, and with deliberate puntóse to evade its provisions; that said contracts provided for secret rebates based upon a schedule of the amount of powder purchased annually as follows, to wit: A purchase of more than five Imn-
Twelfth. Plaintiff shows that, in furtherance of the purpose of the defendants to monopolize and control the trade of powder and other explosives, the defendant E. I. Du Pont de Nemours Powder Company shortly after its incorporation created a board, known as the “Sales Board” and composed of a director of sales and assistant directors, who exercised' the power to fix prices and establish policies which all the other defendants and parties to the unlawful combination and conspiracy were compelled to observe; that no regular or fixed price list Was issued, but the prices which were established from time to time were purely arbitrary; that in those states, territories, or foreign countries where the defendants were in full control of the powder trade such prices were always fixed so as to leave substantial and sometimes excessive margins of profit, but that in those states, territories, and foreign countries where the defendants or some of them were conducting business in competition, or in danger of competition, such prices were regulated and determined solely with the object in view of preventing all manufacturers not parties to the conspiracy from obtaining a fair proportion or any of the powder trade, and not with a -view of obtaining .business for itself at a fair margin of profit, so that said defendant might have a clear field to make any. prices it should thereafter see fit, and without regard to the interest of the consumer. And plaintiff further shows that for a period of more than five years it was continuously forced to meet the prices thus fixed by said defendant in an endeavor to obtain and retain enough business to keep its mills and plant operating and to obtain its fair share of the powder trade in said states, territory, and foreign country; but plaintiff was unable to offer to supply such powder at any
Thirteenth. Plaintiff shows that on or about the tOth day of January, 1.904, an explosion occurred at its said plant and mills whereby a large part thereof was totally destroyed, entailing a heavy direct loss upon plaintiff on account of the destruction of said properly, and further serious losses on account of the enforced idleness of the remainder of said plant and mills during the time required for rebuilding; and your plaintiff further shows that said explosion occurred in this wise, namely: During the noon hour on said day, while the employes who had been assigned to work in that portion of said plant which was destroyed were absent therefrom at luncheon, some person or persons unknown to plaintiff entered the said building and distributed matches which had been previously colored with black ink along the floor and walks where powder dust had settled, and where they would ignite if stepped upon; that upon the return of said omployés they immediately discovered that the doors to said buildings had been opened, and upon entering also discovered some of the matches distributed as aforesaid; that immediately upon the matter being reported to the official in charge of said buildings, instructions were given to the said employes to remove their shoes and make a careful search for said matches upon their hands and knees; that while thus engaged an explosion occurred, and two of said employés were killed and others seriously injured. And plaintiff further shows that immediately after said explosion the agents of said defendant caused to be printed and distributed among its own and plaintiff's customers large numbers of exaggerated reports of the extent of the damage done by said explosion, and endeavored to create a feeling of uncertainty among consumers generally, and among plaintiff’s customers in particular, concerning plaintiff’s ability to meet their future requirements for black blasting powder, with a view to inducing, and in some cases thereby succeeded in inducing, said consumers to enter into exclusive contracts with said defendant to supply them with black blasting powder, said contracts being of the tenor and effect hereinbefore in paragraph eleventh particularly set forth.
Fourteenth. Plaintiff shows that the defendant E. I. Du Pont de Nemours Powder Company, in order to forestall and prevent the construction of powder-mills throughout the United States and foreign countries, and to prevent competition, and with the purpose of securing to itself and its associates in said unlawful combination and conspiracy to monopolize the powder trade, further conspired, combined, confederated, and agreed to and with various persons, corporations, and associations engaged in the manufacture of powder-making machinery for the purpose of obtaining the exclusive use and" control of powder-making machinery, and thereby to limit the sale and use of such machinery to themselves and their associates; and by threatening to refuse to purchase powder-making machinery of any maker who would not give it and them such exclusive right the said E. I. Du Pont de Nemours Powder
Fifteenth. Plaintiff shows' that, being unable to withstand the great and continuing losses forced upon it by reason of the unlawful and wrongful acts of the defendants as hereinbefore set forth, it was finally compelled to offer its mills, plant, and business for sale; that the methods and conduct of the defendants toward plaintiff had become generally known among powder manufacturers and dealers throughout the United States and foreign countries, as well as among the usual investors in property owned and used for the manufacture and sale of powder, and it was generally known that the methods employed by the defendants, and particularly by the defendant E. I. Du Pont de Nemours Powder Company against plaintiff, were the methods that had long been similarly employed against other manufacturers and vendors of powder who had attempted to operate independently of the defendants, or some of them, from time to time engaged in the conspiracy to monopolize the trade in explosives, and that generally independent operators had been unable to survive the combined assaults of said defendants, and for this reason there was no market for such property, except among-the defendants, or some of them, and among investors who had been accustomed to invest only in such properties as were operated' or controlled by the defendants, or some of them; and plaintiff, not being able to find a purchaser, or in fact to obtain any hid or offer from any source, finally solicited the defendants, or some of them, to purchase its mills and plant at the fair value thereof, and also to purchase its business, good will, and stock on hand, for the fair and reasonable value thereof, but all efforts to induce any of said defendants to consent to purchase said properties, or any of said properties, at the fair and reasonable value thereof totally failed, and plaintiff was then compelled, in order to keep said properties from going to waste, and in order to avoid suffering a total and irretrievable loss of the entire value of said properties, to accept any offer that it might be able to obtain therefor, without any regard whatsoever to the true and fair value thereof; and thereafter, to wit, on or about the 19th day of September, 1908, plaintiff sold and disposed of its entire plant, mills, business, and good will for the total sum of seventy' thousand dollars ($T0,000), and the stock on hand for five thousand five hundred and four and 8/ioo dollars ($5,504.08) additional. And plaintiff further shows that the nominal purchaser of said property was one Franklin W. Olin, of the city of Alton, state of Illinois; but plaintiff states that the said Olin purchased the same at the instance and request of the defendant E. I. Du Pont de Nemours Powder Company and others of the defendants herein, and under and in pursuance of a contract with the defendant E. I. Du Pont de Nemours Powder Com
Sixteenth. Plaintiff shows that its mills and plant were equipped and designed to do a large and profitable business with users and dealers in explosives, and particularly black blasting powder; that, when operating ai full capacity, it employed a large force of men in the manufacture of such powder, and was capable of producing one thousand (1,000) kegs daily; that the total annual capacity of said mills and plant, based upon three hundred (ROO) working- days per year, was three hundred thousand (800,000) kegs of black blasting powder; that plaintiff began the manufacture of such powder on or about the 1st day of October, 1908; that during the year 1904, it manufactured and sold a total of only one hundred eight thousand seven hundred ninety-eight (108,798) kegs, and during tile year 1905 a total of one hundred fifty-eight thousand one hundred six (158,106) kegs, and during the year 1907 a total of eighty-six thousand three hundred seventy-five (86,875) kegs, and from January 1 to August 31, 1908. a total of thirty-two thousand and fifty-nine (32,059) kegs; that the inability of plaintiff to keep its plant and mills working at the full capacity thereof was due to and was the natural and proximate consequence of the wrongful and unlawful acts of the. defendants, as hereinbefore set forth ; that every effort was made by plaintiff during all of said i>eriod, not. only to increase its sales and keep its mills and plant operating to the full capacity thereof, but to maintain its customers and prevent the falling off' of said sales, but by reason of the unfair, unlawful, and wrongful conduct of the defendants, and particularly of .the defendant E. I. Du Font de Nemours Powder Company, its agents, officers, and employes, as hereinbefore alleged, plaintiff was prevented from obtaining a fair share of the trade in black blasting powder and other explosive's in said states, territory', and foreign countries, and was prevented from making a fair and reasonable profit on the powder manufaeiured and sold by it as above set forth. And plaintiff shows that it was especially well equipped to secure a fair and reasonable portion of the said powder trade in fair and open competition; that said I?. 8. Waddell had full charge of the sales department of plaintiff, and that he carried on a persistent and energetic campaign, during- the entire period aforesaid, for a fair share of
Seventeenth. That with the intent to impede, impair; injure, and destroy the business of plaintiff, the defendants, and particularly the defendant E. I. Du Pont de Nemours Powder Company, maliciously, wantonly, willfully, oppressively, and wickedly, through their officers and agents, acting within the scope of their employment and by direction of and with the approval of the defendants, and particularly the defendant E. I. Du Pont de Nemours Powder Company, committed the wrongs herein set forth, whereby the business and property of plaintiff was injured and impaired and totally destroyed, to its further damage, and by reason thereof plaintiff is entitled to recover punitive or vindictive damages against said defendants, and particularly against the defendant E. I. Du Pont de Nemours Powder Company, in the sum of five hundred thousand dollars ($500,000).
Wherefore plaintiff prays that, by reason of the matters and tnings herein-before set forth, it do have and recover judgment of and from the defend-
See note at end of case.