Grengs v. Twentieth Century Fox Film Corp., 232 F.2d 325 (7th Cir. 1956)

SCHNACKENBERG, Circuit Judge.

Appeals were taken by plaintiff from judgment orders of the district court, one of which (in No. 11548) dismissed his action as to the defendants Fox Wisconsin Theatres, Inc., Fox Valley Theatres Corporation, Fox Wisconsin Amusement Corporation and Wausau Theatres Company, herein sometimes referred to as “exhibitors”, without prejudice as to plaintiff’s cause of action against the remaining defendants, and the other of which (in No. 11609) dismissed plaintiff’s complaint with prejudice, as to the-remaining defendants, — Twentieth Century Fox Film Corporation, Loew’s Incorporated, RKO Radio Pictures Incorporated, Warner Bros. Pictures Distributing Corporation, Paramount Film Distributing Corporation, Universal Film Exchanges, Inc., Columbia Pictures Corporation, and United Artists Corporation, herein sometimes referred to as “distributors” or “producers”. We have consolidated the cases for hearing in this court.

Plaintiff’s entire action against all the defendants, both exhibitors and distributors, is contained in his amended complaint. He seeks to recover treble damages and cost of suit, including a reasonable attorney’s fee, because of defendants’ alleged violation of the antitrust laws of the United States.1 He alleges inter alia that he was a motion picture exhibitor in Wausau, Wisconsin, that, in a manner which he alleges in detail, four other exhibitors there were affiliated with or controlled by Twentieth Century Fox Film Corporation, one of the distributor defendants, that he was compelled to sell his theatre by reason of a conspiracy and combination in restraint of trade existing between all of the defendants, that this conspiracy and combination were carried out nation wide by means of refusing certain runs to competitors, discriminatory clearances and prices, and other monopolistic practices set forth, all participated in by the producers and

distributors as well as their subsidiaries, defendants herein. He also charges that he began operating his theatre in May 1942 and continued operating it until February 16, 1946 when he was compelled to sell it because of said conspiracy, which caused him damage in the loss of profits, etc.

He also alleges that, on July 20, 1938, the United States brought a suit in equity against all of said defendant producers and distributors to restrain said conspiracy; and that, in said suit, the government charges of said monopoly, combination and conspiracy included the charges afterwards set forth in plaintiff’s amended complaint; that, after trial, findings and a final decree were entered on December 31, 1946 adjudging the producer and distributor defendants herein guilty of the monopoly, combination and conspiracy existing throughout the nation and within the state of Wisconsin, described and charged by the government in said suit; that, on appeal, the Supreme Court of the United States affirmed on June 5, 1950, Twentieth Century Fox Film Corporation v. United States, 339 U.S. 974, 70 S.Ct. 1032, 94 L.Ed. 1380, and, after denial of petition for rehearing on October 16, 1950, 340 U.S. 857, 71 S.Ct. 70, 95 L.Ed. 627, said “judgments” became final. The amended complaint then alleges that said “judgments and decrees” constitute prima facie evidence in favor of plaintiff and against defendants herein who were parties to that suit “as to all matters respecting which said judgment or decrees would be an estoppel, as between the parties to said suit and the United States”; and further that the running of the statute of limitations in respect of the private rights of action in favor of plaintiff and against any of said defendants arising under the antitrust act, and based in whole or in part on any matter complained of in said government suit, “has been suspended during the pendency of said Government suit; all as provided by Title 15, Section 16 U.S.C.A.”

Each distributor and three of the exhibitors pleaded the two-year statute of limitations of Wisconsin.2

Defendants made a motion for summary judgment, and plaintiff filed his attorney’s affidavit which was considered by the court.3 On June 21, 1955, the district court ordered the action dismissed as to the exhibitor defendants, without prejudice as to plaintiff’s cause of action against the distributor defendants. This followed the filing of a stipulation in which plaintiff agreed that the exhibitors were not parties to the aforesaid government suit.

On October 4, 1955, the district court entered summary judgment dismissing this action as to the distributor defendants with prejudice, on the ground that it was barred by the Wisconsin two-year statute of limitations.4

1. It is agreed that the statute of limitations of Wisconsin applies to this case. There is a sharp difference of opinion between the parties as to which provision of that statute applies. Defendants claim that § 330.21(1) Wiscon

sin Statutes 1951 is applicable. It provides a two-year limitation for:

Plaintiff claims that § 340.19(4)6 of said statutes is applicable. It provides a six-year limitation for:

Obviously, if the two-year limitation applies, the six-year limitation is inapplicable. Hence we shall first consider the claimed applicability of § 330.21(1).

At this point we are confronted with a mystery involving a comma, the disappearance of which is established by the legislative history of this section and its predecessors. The comma in question first appeared in 1878, when there was a general revision of the Wisconsin statutes and what is now § 330.21(1) appeared in the revisor's bill and in the enrolled bill signed by the governor, as follows:7

However, in the process of publication of the revised statutes of 1878, the comma, following the word “penalty”, disappeared. Who caused it to disappear and why are matters argued with great earnestness by defendants’ counsel. The preface to this publication contains the following statement by the publisher:

In a statutory revision in 1931, the comma after the word “penalty” continued to be absent. That is the situation presented by this appeal. Defendants contend that its absence from the published 1878 revision of the statutes and its continued absence from the 1931 revision were accidental and were due to lack of care rather than because of the intention-of the legislature. On the other hand, plaintiff contends that a comma after the word “penalty” would have-no meaning. He quotes Erie R. Co. v. United States, 6 Cir., 240 F. 28, to the effect that the presence or absence of a comma, according to the whim of the printer or proofreader, is so nearly fortuitous that it is a wholly unsafe aid to statutory interpretation. He also cites King v. Kelly, 1879, 25 Minn. 522, where, at page 525, the court said:

If these utterances were to be accepted at face value, we might find our court opinions, and in fact our newspapers, written without punctuation. Where this would leave all of us is uncertain. We do not share the disdain of these courts for punctuation. Universal use thereof rebuts the assertion that it is ordinarily the work of clerks and print

ers. Without the hundreds of punctuation marks in plaintiff’s own briefs herein, we would find ourselves stumbling through a morass of mere words. The meaning of an expression by word of mouth is, as we know, clarified by pauses, inflections, and gestures of the face, hands and body, of the speaker. The necessary absence of such meaningful aids to the printed word is, in some measure, overcome by the intelligent use of commas, periods, semicolons and other punctuation marks. They are not the mere playthings of clerks and printers. We believe that punctuation is a useful aid in interpreting the meaning of printed or written language.

In the statute under consideration, the presence of a comma after the word “penalty” clearly confines the clause beginning “when the action is given to the party prosecuting therefor ”, to the word “forfeiture” only.* So read, an action for a statute penalty, such as in the case at bar, is subject to the two-year, limitation. It should be so read.

Supporting this conclusion are Wisconsin decisions especially dealing with changes made by a revisor’s bill, such as Wisconsin Power & Light Co. v. City of Beloit, 215 Wis. 439, 254 N.W. 119, at page 123, where the court said:

In view of the use of both of the words “penalty” and “forfeiture” in this statute, we are of the opinion that the comma was intentionally used therein prior to 1931. No sufficient reason has been advanced to cause us to believe that the omission of the comma after the word “penalty” was intentional.’7a Its absence, at the most, raised an ambiguity which justifies us in construing the statute, in effect at times material in this case, as requiring an action on a statute penalty to be brought within two years after the action accrues. We, therefore, hold, in No. 11548, that the two-year limitation applies to the cause of action of plaintiff against the exhibitor defendants. Accordingly, as to those defendants the judgment of the district court is correct.

2. For the same reasons the two-year limitation statute likewise applies to the cause of action of plaintiff against the distributor defendants. As to them, the next question is, from what date is the running of the two years statute of limitations computed? Defendants say it is June 25, 1948. Plaintiff says it is February 8, 1950. The date of June 25, 1948 is when the district court entered a decree on the mandate of the Supreme Court following its decision of May 3, 1948 in United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. February 8, 1950 is the date on which the district court, after the remandment by the Supreme Court, entered other decrees, which included the matters involved in the remandment. Loew’s, Twentieth Century Fox and another ’7b appealed and, on June 5, 1950, the Supreme Court affirmed. On October

16, 1950, the petitions of .these three for rehearing were denied. The appeal time expired for United Artists Corporation, Columbia Pictures Corporation, Universal Film Exchanges, Inc., and Warner Bros. Pictures Distributing Corporation on April 9, 1950.

The difference of opinion arises from disagreement of the parties hereto as to the application of the word “pendency” in § 16 of the antitrust laws,8 which at the time relevant to this case, read as follows:

All of the dates of February 8, 1950, April 9, 1950 and October 16, 1950 were within two years prior to the filing of the case at bar, i. e., September 12, 1951. The amended complaint sets forth a right of action arising under the antitrust laws of the United States and, in so. doing, duplicates violations of said laws charged against the same distributor defendants in the paramount case. Thus plaintiff sets forth a private right of action which is, at least in part, grounded upon the same matters of which the government complained in the Paramount case. To -the extent that there is that similitude or duplication of charges of violations of the antitrust laws, the final judgment or decree in Paramount, holding that the defendants there violated the antitrust laws, is prima facie evidence here against the defendants in that case who are also defendants in the case at bar,9 except as to consent judgments or decrees entered before any testimony had been taken. It was the purpose of congress that a person, desirous of taking advantage of the use as prima facie evidence of a judgment or decree rendered in a suit brought by the United States under the antitrust laws, might have an opportunity to do so in a private action commenced after the government’s suit had ended, even though his cause of action arose while the latter suit was pending. This is true when the private action is based either in whole or in part on any matter complained of in the government’s suit.

Whether this case was commenced within two years after the termination of the pendency of the Paramount case, within § 16, requires a reference to the opinion in that case.

There, 334 U.S. at page 172, 68 S.Ct. at page 936, the court stated that the findings of the district court were deficient and obscure, in that, “The District Court in its findings speaks of the absence of a ‘purpose’ on the part of any of the five majors to achieve a ‘national monopoly’ in the exhibition of motion pictures.” The court then said:

on the part of the five majors in the first-run field for the entire country, in the first-run field in the 92 largest cities of the country, or in the first-run field in separate localities. Yet the first-run field, which constitutes the cream of the exhibition business, is the core of the present cases. Second, we pointed out in United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941 [92 L.Ed. 1236], that ‘specific intent’ is not necessary to establish a ‘purpose or intent’ to create a monopoly but that the requisite ‘purpose or intent’ is present if monopoly results as a necessary consequence of what was done. The findings of the District Court on this phase of the cases are not clear, though we take them to mean by the absence of ‘purpose’ the absence of a specific intent. So construed they are inconclusive. In any event they are ambiguous and must be recast on remand of the cases. Third, monopoly power, whether lawfully or unlawfully acquired, may violate § 2 of the Sherman Act though it remains unexercised for * the existence of power ‘to exclude competition when it is desired to do so’ is itself a violation of § 2, provided it is coupled with the purpose or intent to exercise that power. The District Court, being primarily concerned with the number and extent of the theatre holdings of defendants, did not address itself to this phase of the monopoly problem. Here also, parity of treatment as between independents and the five majors as theatre owners, who were tied into the same general conspiracy necessitates consideration of this question.”

Especially important in this connection is the following statement by the court, 334 U.S. at page 173, 68 S.Ct. at page 937:

At page 174 of 334 U.S., at page 937 of 68 S.Ct., the court said:

The court, having stated, 334 U.S. at page 175, 68 S.Ct. at page 938, that the provision of the decree barring the five majors from further theatre expansion should be eliminated, said: “For it too is related to the monopoly question; and the District Court should be allowed to

make an entirely fresh start on the whole of the problem.”

The court, 334 U.S. at page 178, 68, S.Ct. at page 939, affirmed the judgment below in part and reversed in part, remanding for proceedings in conformity with the opinion.

While we do not hold that the remandment, insofar as it dealt with the remedy only, would be significant here, we do believe that, it is significant that the Supreme Court held that the question of an illegal monopoly had not been completely passed upon by the district court. It -therefore remanded for further action therein on a part of the monopoly question. The ease, as to the latter matter, remained pending until the district court had passed thereon. In other words, there was a part of the violations charged against the distributors which then remained unresolved by the Supreme Court decision.. This was included in that part of the case which was reversed .and remanded to the district cojirt for further proceedings.

We are confirmed in the correctness of this view by the district court’s opinion after, remandment.10 At page 885, that court said:

Again, at page 893, the court said:

horizontal conspiracy as to price-fixing, runs and clearances. The vertical integrations aided such a conspiracy at every point.”

Thus it was then for the first time determined that the vertical integrations were active aids to the conspiracy theretofore determined and were therefore violations of the act. The amended complaint herein charges such vertical integrations.

These determinations upon remandment were later embodied in the district court’s decrees, entered February 8, 1950. These decrees became final on appeal within -two years prior to the filing of the suit at bar. Hence this action was not barred by the statute of limitations, except as to defendants RKO Radio Pictures Incorporated and Paramount Film Distributing Corporation.11 The latter two defendants entered into consent decrees on November 8, 1948 and March 3, 1949, antedating the commencement of this action by more than two years. As to them the order and summary judgment of the district court is affirmed. As to the other distributor defendants (appellees in No. 11609), the order and summary judgment of the district court, dismissing the complaint of the plaintiff with prejudice, is reversed and the cause remanded for further proceedings consistent with this opinion.

As to Fox Wisconsin Theatres, Inc., Fox Wisconsin Amusement Corporation, Wausau Theatres Company, RKO Radio Pictures Incorporated, Paramount Film Distributing Corporation, appellees, affirmed.

Costs herein, in No. 11548, are taxed against appellant.

As to Twentieth Century Fox Film Corporation, Loew’s Incorporated, Warner Bros. Pictures Distributing Corporation, Universal Film Exchanges, Inc., Columbia Pictures Corporation, United Artists Corporation, appellees, reversed and remanded for further proceedings.

Costs herein, in No. 11609, are taxed against the last above mentioned appellees.

FINNEGAN, Judge.

I concur in the result but not with all that is said in the opinion.