Henry Gildehaus Co. v. Busse & Borgman Co.

19 Ohio N.P. (n.s.) 263

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: November 15, 1916
• Status: Published

Opinions

Geoghegan, J.

Heard on motion to strike from the petition.

The averments contained in the petition designated in the motion by the numbers 1, 2, 3, 4, 5 and 6, will be stricken out. An examination of the petition discloses that these allegations are simply statements of what is contained in the by-laws of, what is described as “The Undertakers’ Protective Association of Cincinnati,’’ etc. They seem to be unnecessary and immaterial to the cause of action set forth in the petition, and if they have any place in this lawsuit it can only be as matters of evidence.

As to the averment designated in the motion as number 7, I have come to the conclusion that that may properly remain in the petition inasmuch as it contains the alleged covenant whereby, the members of the association fix the prices for their conveyances and provide a punishment for the infraction of the rule laid down in Section 26. "While, of course, it would not have been necessary to set out this provision verbatim, nevertheless, in the light of all the circumstances pleaded and the nature of the cause of action set forth in the petition, I am of the opinion that it should be permitted to remain in the pleading just as it is.

As to the averment designated under number 8 in the motion, I think the motion is well taken. I do not think that the fact that the plaintiff was compelled to buy an auto hearse by reason of the refusal of the defendant to provide him with one is a proper element of damage in a cause of action of this kind brought under a special statute. It may be presumed that plaintiff still has the hearse and it is worth as much as plaintiff paid for it. Therefore, no damage could have been sustained.

As to the averment designated as number 9 in the motion, the question involved has not been without difficulty. That averment is as follows:

That the defendant circulated and caused to be circulated in Cincinnati, Plamilton County, Ohio, in furtherance of said agreement and conspiracy above set forth, that plaintiff was unfair to union labor, knowing the same to be untrue, to the great damage and injury of its business.”

This actiofi. is one brought to recover the penalty provided for in Section 6397,' General Code, which is a part of that act which is commonly known as the Valentine anti-trust law. Inasmuch as the action is brought under that act, it would seem that damages can only be recovered for the doing of those things that are expressly prohibited by the act.

I have made a careful examination of all the provisions of the act and nowhere do I find therein that a conspiracy entered into between two or more persons for the purpose of boycotting another in his business by circulating that he is unfair to union labor is prohibited by the act. While it is true that as a matter of law such a conspiracy may be made the subject of an action for damages by him who has been injured thereby, nevertheless, in a special action authorized by statute such as the one under review here, it would seem that the provisions of the act should not be given a wider scope than its terms fairly import, nor should damages be given for injuries that are not expressly provided for in the statute, and this is especially true where the damages fixed by the státute are not only compensatory but are exemplary in their nature as in this ease where the statute allows twofold the damages sustained by the one injured.

Therefore, I am of the opinion that the averment designated in the motion as number 9 should be stricken out.

I will make the same ruling as to the averment designated as number 10 in the motion. That allegation is as follows:

“Plaintiff further says that the defendants are an unlawful trust and combination of capital, skill, and acts, to accomplish the unlawful purpose aforesaid.”

This averment is purely epithetical in its nature and does not add anything to what has already been said. When a party has pleaded the facts upon which his cause of action is based, it does not add anything to that cause of action to characterize the acts of the defendants as unlawful, wrongful, illegal ,etc., and, therefore, inasmuch as under this ruling the petition will have to be amended, this allegation will be stricken from this petition as being unnecessary and immaterial. If this were the only ground of the motion, the court would not be inclined to compel an amendment of the petition, but in the interest of accurate pleading does so inasmuch as an amendment must be made.

Leave will be given to file an amended petition.