at common law or under a State statute for the same injury does not constitute an election of remedies which will bar a subsequent suit under the Federal statute provided at least that the former suit was previously discontinued. Where the complaint or declaration sets forth two causes of action for the injury one under a State law, and the other under the Employers' Liability Act, and shows that at the time of the injury plaintiff and defendant were engaged in interstate commerce, the Federal law controls both the liability and the right of recovery.9 § 454k. Pleadings in actions at common law under Interstate Commerce Acts. A declaration or petition to recover damages awarded by the Interstate Commerce Commission as reparation for excessive or discriminating rates must show that such rates were wrongful in one of these respects.1 An averment that the Commission has so found is insufficient, but where such a declaration did not in terms allege the particular rates upon which the commission passed, but set out the citations of the cases where the determination was reported for the purpose of incorporating the pertinent facts of such decisions into the pleading by reference, it was held that the court was authorized to examine the facts set out in such decisions when deciding a demurrer. An allegation that the charges were unjust, unreasonable, and in violation of law is sufficiently specific to resist a general demurrer. In an action by a carrier for the difference between the amount paid for freight and the legal rate as fixed by its schedules and tariffs filed with the Interstate Commerce Commission, the plaintiff's pleading is not insufficient when it omits to set forth in full the schedules and tariffs and the cer Line R. Co., C. C. A., 210 Fed. 761; 8 Hogan v. New York Cent. & H. R. R. Co., C. C. A., 223 Fed. 890. 9 Peek v. Boston & M. R. R., 223 Fed. 448. § 454k. 1 Baer Bros. Mercantile Co. v. Denver & R. G. R. Co., 200 Fed. 614. See supra, §§ 32a, 77b. 2 Ibid. 3 A. J. Phillips Co. v. Grand Trunk Western Ry. Co., C. C. A., 195 Fed. 12. See Jacoby v. Pennsylvania R. Co., 200 Fed. 989. 4 Denver & R. G. R. Co. v. Baer Bros. Mercantile Co., C. C. A., 209 Fed. 577. tificates of concurrence in the rates published by another railroad upon which it relies." 6 In an action against a common carrier for loss or damage in transit to goods shipped in interstate commerce under the Carmack Amendment to the Interstate Commerce Act, it will be presumed that the defendant issued a bill of lading in accordance with the statute, although the complaint is silent in that respect.7 § 4541. Pleading in actions at common law under anti-trust statutes. The better opinion is that a count is not bad for duplicity in an action under the Federal Anti-Trust Act of July 2, 1890,1 when it alleges that the defendant has entered into a contract, combination and conspiracy in restraint of trade. In 5 McFadden V. Alabama Great Southern R. Co., C. C. A., 241 Fed. 562. 6 Act of January 24, 1914, 38 St. at L. 278. 7 Southern Pacific Co. v. Stewart, 245 U. S. 359. § 4541. 126 St. at L. 209, ch. 647, §§ 1, 2, Comp. St. §§ 88208830. 2 Buckeye Powder Co. v. E. I. Du Pont de Nemours Powder Co., 196 Fed. 514; Cilley v. United Shoe Machinery Co., D. Mass., 202 Fed. 598; Strought v. United Shoe Machinery Co., D. Mass., 202 Fed. 602; citing: Swift v. U. S., 196 U. S. 375, 396, 25 Sup. Ct. 276, 279, 49 L. ed. 518; U. S. v. Am. Tobacco Co., 221 U. S. 106, 184, 31 Sup. Ct. 632, 650, 55 L. ed. 663. Contra, Rice v. Standard Oil Co., D. N. J., 134 Fed. 464. A declaration was held to be sufficient, which alleged in detail: the establishment of the shoe machinery business of the plaintiff at Boston in 1893, his engaging thereafter in interstate commerce, his building up of the business, his procuring of patents and the construction of shoe machines thereunder, the expenditure of nearly $100,000 to develop the business, the profits of the business immediately prior to the alleged wrongful acts of the defendant and the entire loss of profits thereafter, a list of the customers with whom he had done business and persons with whom he was negotiating for further business, the trade conditions prior to the organization of the defendant company, the illegal combination and conspiracy of its pro-concerns, its utilization of leases and licenses as an instrumentality to create an illegal monopoly and combination (the general forms of leases and licenses being set forth verbatim in an exhibit), the effect of these leases and licenses in excluding the plaintiff from the market, the attempt through the leases and licenses to extend the scope and operation of the defendant company's patents, the superior merit and efficiency of the plaintiffs' line of shoe machinery, the threats of the officers of the defendant company to the plaintiff made in pursuance of its scheme to monopolize, the destruction of the established business the Southern District of New York, where the complaint set and interstate commerce of the plaintiff, the diversion of his customers, the destruction of the value of his patent interests, and other injuries to his business and property." And further: "13. Accordingly, the plaintiff says that the defendant is and has been since its organization an illegal combination in restraint of trade and a monopoly existing wrongfully and in violation of the act of Congress of July 2, 1890, chapter 647, commonly known as the Sherman Act; that each and every one of the leases, copies of which are hereto annexed, is a contract in restraint of trade and com. merce among the several states and with foreign nations, in that the cffect has been to prevent practically all of the shoe manufacturers in the United States from purchas ing, leasing, or otherwise acquiring or obtaining in any of the states of the United States or in any foreign market or elsewhere, except from the defendant shoe machinery and mechanisms; that said group system of leases which the defendant has required and secured to be signed by nearly all the shoe manufacturers in the United States have created and now maintain a conspiracy and combination in restraint of trade and commerce among the several states and with foreign nations, to which the defendant and all its acquired concerns and companies are parties, whereby the defendant has monopolized and now monopolizes substantially the entire trade and commerce in shoe machinery and mechanisms among the several states and with foreign nations and or suppresses all competition therein, and has entirely excluded the plaintiff from participation in such trade and commerce; that said leases are essential parts of an illegal scheme, combination, and conspiracy in restraint of trade and commerce, and have been utilized by the defendant as an important instrumentality in creating and supporting its illegal monopoly in the business of dealing in and with shoe machinery and mechanisms. "14. That through and by reason of the said conspiracy and monopoly acquired by the defendant company of practically the entire business of manufacturing shoe machinery throughout the United States the plaintiff has been prevented from selling the shoe machinery manufactured by him, including machines covered by said patents relating thereto enumerated in paragraph 1 to the manufacturers included in Exhibit A and to the other shoe manufacturers in the various states of the United States, and by means of each and all acts done by the defendant in pursuance of said monopoly the defendant has utterly destroyed the interstate trade and commerce of the plaintiff with said shoe manufacturers by the loss of many or ders and customers directly resulting therefrom, the interests of the plaintiff in the aforesaid patents enumerated in paragraph 1 have been rendered valueless, and the plaintiff has otherwise been greatly injured in his business and property by reason of said monopoly and the acts of the defendant done in pursuance thereof, and to carry the forth in the same cause of action facts which were violations of same into effect, which are declared to be unlawful by the aforesaid act of Congress of July 2, 1890, chapter 647, to the amount of three hundred thousand ($300,000) dollars, to recover threefold which damages and costs of suit, including a reasonable attorney's fee under section 7 of said act, this suit is brought." Cilley v. United Shoe Mach. Co., 202 Fed. 598, 599, 600. A declaration was held to be sufficient which alleged in substance that the plaintiff is trustee of the Goddu Sons Metal Fastening Company, duly appointed by the Supreme Judicial Court of Maine in proceedings for the dissolution of that corporation; that as such trustee he holds title to all property and rights of action of the Goddu Sons Metal Fastening Company; that the Goddu Sons Metal Fastening Company, after its organization in 1897, acquired certain patents pertaining to shoe machinery, and that it made preparations to place upon the market machines constructed under its patents, and spent a considerable sum in advertising that it constructed machines ready for sale or lease; that a number of shoe manufacturers were de-. sirous of using these machines upon terms beneficial to the company; that the company was prepared and intended to engage in trade and commerce, and to do a large and profitable business in shoe machinery among the several states and with foreign nations; that the defendant the United Shoe Machinery Company was organized in 1899, for the purpose of acquiring by legal and illegal means certain companies Fed. Prac. Vol. III-3 engaged in manufacturing and dealing in shoe machinery, and of driv ing out of business other companies or concerns engaged in that business, and of preventing other companies or concerns from entering into that business, thereby suppressing and preventing competition and acquiring and maintaining a monopoly of the shoe machinery business, and that it has acquired and now maintains a practical monopoly of that business; that the defendants Winslow, Brown, and Hurd are, and have been since the organization of the United Shoe Machinery Company, officers and directors and members of the executive committee of that corporation, exercising management and control of its business affairs; that in pursuance of the plan to suppress and eliminate competition, and to support and protect the monopoly of the United Shoe Machinery Company, the individual defendants, or some of them, entered into negotiations with certain of the stockholders of the Goddu Sons Metal Fastening Company for the purchase of their stock, and that as a result of these negotiations the United Shoe Machinery Company acquired a majority of the stock and the control and management of the Goddu Sons Metal Fastening Company; that in pursuance of its plan to eliminate competition, and to support and protect its monopoly, the United Shoe Machinery Company caused its president, the defendant Winslow, to be elected president of the Goddu Sons Metal Fastening Company, its own treasurer, the defendant Brown, to be elected treasurer of the Goddu Sons Metal Fastening Company, and the Act of July 2, 1890, with other facts which were violations of the Clayton Act of October 15, 1914, the plaintiff was ordered to make a separate statement of them as separate causes of action. It has been held that a declaration in an action to recover damages under the Anti-Trust law is bad for duplicity, when it alleges, in a single count, that defendant entered into a contract, combination and conspiracy in restraint of trade, and that it is bad for duplicity and uncertainty, when it gives no information concerning the combination and conspiracy, "except that the combination is in the form of a trust, and that the combination and conspiracy are in restraint of trade," not stating when, how, by whom, or for what purpose they were formed.. a part of its own directors, including the defendant Hurd, to be elected as the entire board of directors of the Goddu Sons Metal Fastening Company; that the persons so elected have ever since been continued in their respective offices by means of the stock control exercised by the United Shoe Machinery Company; that the control thus acquired by the United Shoe Machinery Company has been exercised, not for the purpose of carrying on and developing the business for which the Goddu Sons Metal Fastening Company was organized, but for the purpose of preventing that company from doing business, thereby preventing and destroying its competition, and protecting and supporting the monopoly of the United Shoe Machinery Company; that the officers of the Goddu Sons Metal Fastening Company, in pursuance of the plan and purpose of the United Shoe Machinery Company, have continuously declined to cause the Goddu Sons Metal Fastening Company to make any use of its patents and patent rights, or to permit it to do any business, that the assets of the Goddu Sons Metal Fastening Company have thus remained idle and have become wasted, and thus that its patents are now about to expire and have become practically worthless; that the United Shoe Machinery Company and the individual defendants have thus accomplished their purpose of destroying the competition of the Goddu Sons Metal Fastening Company, and of sustaining the monopoly of the United Shoe Machinery Company; that the Goddu Sons Metal Fastening Company has been greatly injured in its business and property; and that the plaintiff is entitled, under the Sherman AntiTrust Act, to recover threefold damages, costs of suit, and a reasonable attorney's fee." Stow v. United Shoe Mach. Co., 202 Fed. 602, 603, 604. 3 38 St. at L. 730, ch. 323, Comp. St. §§ 8835a-88351. 4 Baran v. Goodyear Tire & Rubber Co., 256 Fed. 570. 5 Rice v. Standard Oil Co., 134 Fed. 464. But see Buckeye Powder Co. v. E. I. Du Pont de Nemour Powders Co., 196 Fed. 514. 6 Rice v. Standard Oil Co., 134 Fed. 464, 468. |