Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
This is an appeal from a decree of the District Court denying injunctive and other relief prayed for under the provisions of the Sherman Anti-Trust Act (15 USCA §§ 1-7, 15 note) and the Clayton Act (38 Stat. 730) and dismissing the bill of complaint.
The plaintiff, Fleetway, Inc., is or was a transportation company operating 9 busses engaged in carrying passengers for hire from Fairview, an outlying section of the city of Camden, N.J., to the Reyburn plaza, City Hall, Philadelphia, Pa. The defendant is likewise engaged in operating a line of 400 or more busses in Southern New Jersey. Some of these likewise carry passengers for hire through Camden over the Delaware River bridge to the Reyburn plaza.
When the plaintiff began the operation of its busses on September 9, 1932, defendant had been operating its line for a long time. Two of its fare zones concern us here. One, called the first zone, was from Fairview to Ninth street and Kaighn avenue, in the city of Camden, for which it charged a fare of 10 cents a ride, and the other, called the second zone, was from Ninth street and Kaighn avenue to Reyburn plaza, Philadelphia, for which it charged 15 cents a ride. When the plaintiff began its operations in these zones, it charged the same cash fares for a ride, but in the first zone it also sold twelve tickets for $1, or 8 1/3 cents a ride instead of 10 cents, as defendant then charged, and in the second zone, from Ninth street and Kaighn avenue, Camden, to Philadelphia, it sold twelve tickets for $1.50, or 12 1/2 cents a ride instead of 15 cents, as then charged by the defendant.
This rate of fare continued until October 7, 1932, when the plaintiff, while maintaining its price of 10 cents and 15 cents a ride in the first and second zones respectively, further reduced its fare for tickets in the first zone. It sold two tickets for 15 cents in the first zone, or 7 1/2 cents a ride instead of 8 1/3 cents, and two tickets for 25 cents, or 12 1/2 cents a ride in the second zone. The fare was the same in this zone; the difference being that the passenger was required to purchase only two tickets instead of twelve in order to get the reduced rate.
One month and two days later, on November 9, 1932, defendant met the reduction of the plaintiff by making a greater reduction in tickets; the fares for single rides remaining the same. It sold two tickets for 10 cents, or 5 cents a ride in the first zone instead of 7 1/2 cents charged by the plaintiff; and two tickets for 20 cents, or 10 cents a ride in the second zone instead of 12 1/2 cents as charged by plaintiff.
Two days later, November 11, 1932, plaintiff reduced its cash fare to 5 cents a ride in the first zone and 10 cents a ride in the second zone; thus making its price for cash fares the same as defendant's for tickets. This had the effect of eliminating the necessity of purchasing tickets in order to get the reduced rates.
This situation as to operation continued until the end of the year, December 31, 1932, when the plaintiff went out of business. However, on November 11, 1932, plaintiff filed its bill of complaint against the defendant praying for relief.
The plaintiff alleges that, in addition to the demoralizing and uneconomic rates of fare initiated by the defendant, it began from the day of the operation of plaintiff's line a campaign of destructive competition with plaintiff's busses. As many as 12 of the defendant's busses were assigned to cover the operation of a single bus of plaintiff's.
Defendant's plan, plaintiff alleges, was to start several of its busses immediately ahead of plaintiff's single bus, while others would follow it. The busses that followed would cut in ahead of plaintiff's bus as it approached the curb at street crossings where passengers were waiting and thus secure the passengers or obstruct their passage to plaintiff's bus. These tactics were practiced, it asserts, along the entire route, especially Broadway, Camden, and in Philadelphia; that this so-called "wildcatting" and "bottling" conduct on the part of defendant's employees was practiced day after day and was practiced when the bill of complaint was filed.
Plaintiff further alleged that the drivers of defendant's busses, acting under instructions from the defendant's officers, continuously endeavored to damage and wreck plaintiff's busses by driving or backing into them, especially into the sides of plaintiff's busses, where the motors are located, in order to damage the frames and motors; that numerous accidents have been caused and many persons have been injured thereby; that some of defendant's drivers have been arrested and their licenses suspended.
Plaintiff contends that, under section 2 of the Sherman Anti-Trust Act (15 USCA § 2) and section 2 of the Clayton Act (15 USCA § 13), it is entitled to an injunction restraining defendant from continuing its unlawful and discriminatory practices which tend to monopolize the carriage of passengers in ...