316 Mass. 470 | Mass. | 1944
The plaintiff, a licensed dealer in the business of reselling tickets to theatrical and other public amusements, brings this bill of complaint in which he alleges that all the defendants except the defendant Herrick’s, Inc., hereafter called Herrick, are “engaged in the business of maintaining theatres producing theatrical performances” and control nearly ninety per cent of all the theatres in Boston producing stage plays; that Herrick is engaged in the ticket selling business; that all the defendants are dominated and controlled by the defendant Select Theatres Corporation, hereafter called Select; that in consequence of such control and domination all the defendants are acting in accordance with an agreement “to control the resale of tickets of admission to the above mentioned performances, and have created a monopoly in the same, which combination, arrangement and agreement has resulted in a practice whereby the supply and price of said tickets of admission are restrained or prevented and whereby the free pursuit of the plaintiff’s business is unreasonably restrained and prevented and the public is prejudiced, all in violation of General Laws, Chapter 93, Section 2 and the common law.”
The plaintiff further alleges that beginning in April, 1939, he was required to purchase tickets from Herrick provided he agreed to resell them at a price in advance of that permitted by G. L. (Ter. Ed.) c. 140, § 185D; that shortly prior to filing the bill o’f complaint, Herrick had established a place of business near that of the plaintiff and Herrick has since refused to sell tickets to the plaintiff in accord
The bill also alleges that the defendant Select, its officers and principal stockholders, and all the other defendants have a financial interest in Herrick in violation of G. L. (Ter. Ed.) c. 140, § 185A, as amended by St. 1941, c. 247.
It is finally alleged that it is the intent and purpose of the defendants to stifle and prevent fair competition in the resale of theatre tickets and to drive the plaintiff out of business, which "necessarily prejudices the public and unduly, unreasonably and exorbitantly profits the defendants." The plaintiff, appealed from decrees sustaining the demurrers of the defendants and dismissing the bill.
The plaintiff contends that the bill sets forth the creation and maintenance by the defendants of a monopoly at common law and in violation of G. L. (Ter. Ed.) c. 93, § 2, the State antitrust statute. The modern concept of a monopoly is a combination or organization which has acquired a position of such dominating influence in a particular branch of trade or commerce that it has a tendency to suppress competition, to regulate supply and to fix prices, all to the detriment of the public, in respect to some commodity which the people must have in order to satisfy an essential need of ordinary living. United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 480. Commonwealth v. Dyer, 243 Mass. 472, 486. Robitaille v. Morse, 283 Mass. 27, 33. The statute, c. 93, § 2, does not apply to all combinations or agreements that are contrary to the common law, but applies only to those that create or maintain a monopoly in the manufacture, production, transportation, or sale in this Commonwealth of an article or commodity in common use, or that restrain or prevent competition in
It is a general rule of pleading that one who asserts a claim that he was injured through the establishment and maintenance of a monopoly either at common law or under a statute must set forth definitely and specifically the substance of the agreement which he asserts the defendants have entered into or the plan or scheme which the defendants have adopted, the several acts performed by the defendants, the effect of such acts upon the plaintiff or his business, and the resulting damage to the public, in order that the court , may determine from the facts alleged whether a monopoly at common law or in violation of the statute has been properly alleged with the result that, if the facts are proved, the plaintiff would be entitled to prevail. It is not sufficient to allege the existence of a monopoly or merely to repeat the words of a statute or to recite mere conclusions of the pleader. Conclusions of fact unless they are necessary inferences from the particular facts alleged are not admitted by a demurrer. Johnson v. East Boston Savings Bank, 290 Mass. 441. Comerford v. Meier, 302 Mass. 398. Thompson v. Spagnuolo, 311 Mass. 597. Robichaud v. Owens-Illinois Glass Co. 313 Mass. 583. Becker v. Calnan, 313 Mass. 625, 630-631. Alexander Milburn Co. v. Union Carbide & Carbon Corp. 15 Fed. (2d) 678. Glenn Coal Co. v. Dickinson Fuel Co. 72 Fed. (2d) 885. Powell v. Graham, 183 Wash. 452. It was said in Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 326, that “the general allegation that the combination and agreement are 'unlawful and illegal’ is insufficient, as matter of pleading, to state a cause of action in tort,”’ and in Walter v. McCarvel, 309 Mass. 260, 264, that the allegation that “‘said contract’ has resulted in an unlawful monopoly and illegal restraint of trade” was not admitted by the demurrer.
With these general principles in mind, we pass to a brief analysis of the bill of complaint. The bill does not in terms
The theatre owner has the control over the distribution and sale of tickets unless, as is not alleged here, it has made a different arrangement with the one producing the performance. The owner of the theatre has the right to decide for himself whether he will sell all the tickets directly to the public or whether he will save a part of them to be sold through ticket agencies which he has selected. He is not required to allot any of the tickets to any particular agency. The fact that one is licensed to resell tickets gives him no right to secure tickets for that purpose. Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 326. Collister v. Hayman, 183 N. Y. 250. Levine v. Brooklyn National League Baseball Club, Inc. 179 Misc. (N. Y.) 22.
The mere fact that the plaintiff might not have been permitted to participate in the sale of the tickets to the extent or upon the terms he desired would not give him any right to maintain the bill. While an individual theatre owner had the right to refuse to deal with the plaintiff, it could not in pursuance of an arrangement made between it and other theatre owners refuse to sell tickets to the plaintiff for the purpose of damaging or destroying his business. Robitaille v. Morse, 283 Mass. 27, 32. Comerford v. Meier, 302 Mass. 398, 402. Binderup v. Pathe Exchange, Inc. 263 U. S. 291. Locker v. American Tobacco Co. 195 N. Y. 565. The difficulty with the bill is that it shows neither such a refusal nor such a purpose. It is alleged that Herrick refused to sell tickets to the plaintiff in accordance with a system in vogue during a period that ended prior to the filing of the bill. Nothing further is alleged with reference
The allegation that the defendants have a financial interest in Herrick contrary to the provisions of G. L. (Ter. Ed.) c. 140, § 185A, as amended by St. 1941, c. 247, does not aid the plaintiff. In the first place, it is doubtful if any violation is properly alleged. The statute applies where a person having an interest as owner or otherwise in a theatrical exhibition, public show or public amusement also has an interest in the ticket agency. The bill alleges that the defendants other than Herrick maintain theatres pro
The refusal of leave to amend the bill rested in sound judicial discretion. It presents no question of law. No abuse of discretion is shown. Urban v. Central Massachusetts Electric Co. 301 Mass. 519, 524. Keljikian v. Star Brewing Co. 303 Mass. 53, 56.
Decrees affirmed.