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Grengs v. Twentieth Century Fox Film Corp.

April 16, 1956

SHELDON M. GRENGS
v.
TWENTIETH CENTURY FOX FILM CORPORATION, ET AL.



Author: Schnackenberg

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

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.*fn1 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, and, after denial of petition for rehearing on October 16, 1950, 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.*fn2

Defendants made a motion for summary judgment, and plaintiff filed his attorney's affidavit which was considered by the court.*fn3 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.*fn4

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

"An action by a private party upon a statute penalty or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation."*fn5

Plaintiff claims that § 340.19(4)*fn6 of said statutes is applicable. It provides a six-year limitation for:

"An action upon a liability created by statute when a different limitation is not prescribed by law."

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:*fn7

"An action upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, or to the state alone * * *." Rev. Bill 1878, c. 177, § 4224(1).

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:

"For such defects as shall be found to have intervened, the shortness of the time allowed us ought to be accepted as a sufficient apology." Wis. Rev. Stat. (1878), p. iv.

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, 240 F. 28, to the effect that the presence or absence of a comma, according to the whim of the printer or proofreader, is ...


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