Full opinion text
LEMLEY, District Judge. This is an action for treble damages under Title 15, Section 15 of the United States Code Annotated, which provides as follows: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” The suit was originally brought as a class action by the Louisiana Farmers’ Protective Union, Inc., and one Ellis M. Jenkins, an alleged member of said association, as plaintiffs, against the Great Atlantic & Pacific Tea Company of America, Inc., Atlantic Commission Company, Inc., Kroger Grocery & Baking Co., Inc., Wesco' Food Co., Inc., Safeway Stores, Inc'., and TriWay Produce Co., Inc., defendants. The plaintiffs in their original complaint alleged that the Louisiana Farmers’ Protective Union, Inc., was a non-profit cooperative corporation, organized under the laws of the State of Louisiana, and composed of each and every strawberry, grower in the State of Louisiana who ships strawberries in interstate commerce, and that the plaintiff Ellis M. Jenkins was a member, and the president, of said association and joined in the complaint “individually for himself, and representing all other members” of the association similarly situated; that the defendants were justly indebted unto “your petitioner” jointly, severally, and in solido in the sum of $8,328,-576, together with interest thereon; that the right sought to be enforced on behalf of said association was “a several right,” and that there was a common question of law or fact affecting “the several rights,” and that the persons constituting the class were so numerous (upwards of eight thousand) as to make it impracticable to bring them all into court; that during the 1937 season “your petitioner through its members, the strawberry farmers of Louisiana,” shipped in interstate commerce 3,400 cars of strawberries, for which said members received an average of $1.57 per crate, and that during the season of 1938 2,500 cars were shipped, for which an average price of $1.97 per crate was received; and that the defendants, in the years 1937 and 1938, handled approximately 25% of “petitioner’s” strawberries at retail through their stores operated throughout the United States. Following these allegations, an attempt was made in the original complaint to allege a violation of the Robinson-Patman Act, the charge being that in the years 1937 and 1938 “the defendants did unlawfully sell petitioner’s strawberries in interstate commerce at prices below cost for the sole purpose of destroying competitors and eliminating competition in an attempt to create a monopoly.” It was further alleged in the original complaint that approximately 75% of the strawberries of Louisiana are sold at retail by independent or small groceries or food stores, and that the defendants through their vast holdings, ability to advertise, etc., “have sold your petitioner’s commodity for the sole purpose of stifling competition, not only in fresh fruits, such as strawberries, but are attempting to create a monopoly unto themselves for the exclusive distribution of all agricultural and food-stuff commodities at retail in the continental United States.” It was further alleged that, whereas in 1937 the strawberry farmers of Louisiana actually received gross $3,928,768, or $1.57 per crate, for 2,502,400 crates of strawberries shipped, they would have received $6,-005,760, or an average of $2.40 per crate, had it not been for the alleged illegal acts of the defendants, making a net loss of $2,076,992 on the 1937 crop; and that, whereas said farmers in 1938 received gross $3,624,800, or $1.97 per crate, for their berries, that had it not been for said alleged illegal acts of the defendants, they would have received $4,324,000 for their berries, making a net loss of $699,200 on the 1938 crop; and it was further alleged that the loss thus sustained “resulted from the illegal acts of the defendants herein, in selling strawberries as ‘loss leaders’ for the purpose of eliminating competition and attempting to create a monopoly.” Judgment was asked for the sum total of the alleged damages suffered in the years 1937 and 1938, trebled, plus interest and costs. The Wesco Food Co., Inc., moved to quash service, which motion was sustained, and it passed out of the case. Motions for a bill of particulars, to strike, to sever, and to dismiss, addressed to the original complaint, were filed by the several remaining defendants, and extensive briefs were submitted by the defendants on said motions. The motions were set down for hearing on oral argument, but, on the day set for the hearing, the plaintiff, Louisiana Farmers’ Protective Union, Inc., filed an amended complaint in which its co-plaintiff, Ellis M. Jenkins, was dropped as a party plaintiff. The amended complaint in question sets up three alleged causes of action, in separate counts, the first based upon the Sherman Anti-Trust Act, U.S.Code Annotated, Title 15, Sections 1 and 2; the second, upon the Clayton Act, Title 15, Section 13; and the third, upon the Robinson-Patman Price Discrimination Act, Title 15, Section 13a. In the amended complaint the plaintiff, Louisiana Farmers’ Protective Union, Inc., alleges, generally, that it is a non-profit cooperative corporation, organized under the laws of the State of Louisiana, and composed of each and every strawberry grower in the State of Louisiana who ships strawberries in interstate commerce, and functions as the marketing agent for its members in the marketing and distribution of strawberries; “that each and every member” of the plaintiff association “has duly assigned” to it “all their right, title, and interest in and to all the damages to their business which they have sustained through and by the unlawful acts of the defendants” as set forth in the complaint; that the defendants are engaged in the retail grocery business as the owners and operators of retail stores located throughout the United States, certain of the defendants being buying subsidiaries of others; that the defendant, A. & P., owns, operates, and controls retail chain stores to the number of 13,300 in 35 states; that the defendant, Kroger, has a chain of 3,990 retail stores in the United States; and the defendant, Safeway, a chain of over 3,020 stores in the United States; that the defendants, “through -their retail food stores, under their proper names as shown” in the complaint, “and operating under various other names, but which are wholly controlled and dominated by the defendants, handled in the years 1937 and 1938 approximately 25% of plaintiff’s strawberries at retail through their stores operated throughout the United States.” Following these allegations, an alleged violation of the Sherman Act is charged, in count one of the amended complaint, as follows: “That in the years 1937 and 1938 the defendants combined and conspired with the object and intent of stifling competition and monopolizing retail distribution of food products in the United States, particularly strawberries; that in pursuance of said plan the defendants have employed the merchandising technique of using ‘loss leaders’ of certain products, and more particularly in plaintiff’s strawberries, to destroy the business of competitors and in that way control the sole outlet for strawberries and other food products; that the result of said conspiracy was to permit said defendants to dictate not only the prices to be paid by them for plaintiff’s strawberries but to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States; that a further result of said conspiracy was to enable the defendants to control the retail distribution of food products, and more particularly strawberries, in such a manner as would vest the defendants as the owners of their various retail outlets with arbitrary power to dictate prices not only to the ultimate consumer but to the producer as well.” The amended complaint then charges, in count two, an alleged violation of the Clayton Act, as follows: “That the defendants have resorted to the merchandising technique of using ‘loss leaders’ of certain products, and more particularly in the plaintiff’s strawberries, with the object and intent of destroying competition, and in that way control the sole outlet for strawberries and other food products; that the use of strawberries as ‘loss leaders’- by the defendants resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field; that the defendant corporations having purchased from the plaintiff’s members the strawberries * * * mentioned in this complaint, and the said defendants being so engaged in commerce throughout the United States of America, and in the sale of said strawberries therein, and in the course of such commerce, discriminated in price and caused a discrimination in price between the different purchasers of said strawberries throughout the United States of America who purchased from retail stores throughout the United States and in stores other than the retail stores so conducted, owned, operated and controlled by the defendants, which strawberries were sold for use, consumption and resale within the United States, and in places under the jurisdiction of the United States, and the effect of such discrimination was to substantially eliminate competition and tended to create a monopoly in the sale of strawberries; that after the said defendants so purchased and caused to be purchased in their behalf, the said strawberries from the plaintiff’s members, it caused the said strawberries to be sold at a price below the purchase price thereof, and discriminated against the purchasers of other and independent retail stores throughout the United States of America, which said other retail stores, independent of the control and domination of the defendants, were unable to meet the unfair, unlawful, and sacrificial prices below cost, at which the defendants caused the said strawberries to 'be so sold in their retail stores, and that the effect of this discrimination substantially lessened the competition in the sale of strawberries and tended to create a monopoly over the said strawberry industry and over the products of the plaintiff.” An alleged violation of the RobinsonPatman Act is then charged, in count three of the amended complaint, as follows: “That the defendants herein have resorted to the merchandising technique of using 'loss leaders’ as a means of price discrimination in certain products, and more particularly in the plaintiff’s strawberries, with the object and intent of destroying competition and in that way controlling the sole outlet for plaintiff’s strawberries; that the defendants thereafter sold plaintiff’s members’ strawberries and contracted to sell plaintiff’s members’ strawberries at unreasonably low prices, and below the purchase price, for the purpose of destroying competition and eliminating competitors in the various parts of the United States, and practically throughout the United States.” In connection with the alleged violations of the Sherman, Clayton, and RobinsonPatman Acts, it is alleged separately in each instance: “That during the season of 1937, beginning the latter part of the month of March and ending in the latter part of the month of May, the plaintiff, through its members, the strawberry farmers of Louisiana, shipped in interstate commerce 3,400 cars of strawberries, or 2,502,400 crates of strawberries, for which the plaintiff’s members received an average of $1.57 per crate; that had it not been for the illegal acts of the defendants herein, the plaintiff through its members, the strawberry farmers of Louisiana, would have received $6,005,760.-00 for their strawberries, or an average of $2.40 per crate, making a net loss to the plaintiff, through its members, the strawberry farmers of Louisiana, of $2,076,992.-00, on the crop of 1937, due solely to the illegal acts of the defendants herein;” and “That during the season of 1938 * * *, the plaintiff, through its members, * * * shipped in interstate commerce 2,500 cars of strawberries, or 1,840,000 crates of strawberries, for which the plaintiff’s members received an average of $1.97 per crate; that had it not been for the illegal acts of the defendants herein, the plaintiff, through its members, * * * would have received $4,324,000.00 for their strawberries, or an average of $2.35 per crate, making a total loss to the strawberry farmers of Louisiana of $699,200.00 on the crop of 1938, due solely to the illegal acts of the defendants herein.”; and “That plaintiff’s entire loss and damage was caused solely by the defendants’ wrongful and unlawful acts as hereinbefore alleged.” It is then alleged that, under the Act of October 15, 1914, 15 U.S.C.A. § 15, the plaintiff is entitled to recover three times the actual damage of $2,776,192; and judgment is prayed in the amount of $8,328,576, together with interest thereon, and costs, including a reasonable attorney’s fee. Motions for a bill of particulars and a more definite statement, addressed to the amended complaint, were filed by the several defendants, and were granted in part. Our memorandum opinion in this connection is reported in 31 F.Supp. page 483. Following the entry of the order made in accordance with the opinion on said motions, the plaintiff filed a bill of particulars herein, which bill of particulars, in response to motions made by the defendants, has been amplified by three amendments. In its bill of particulars the plaintiff gives the names and addresses of its assignors, 8,795 in number, and sets up that the assignments were oral, and were all made at the same time and place, viz., on March 3rd, 1939, at a meeting of the plaintiff union, held in Hammond, Louisiana. It states that the assignments were effected by the adoption of a motion in the form of a resolution, made by one of the members and seconded by another, a vote being taken thereon, at which time “it was then asked if any one opposed said resolution, and upon no hands being raised it was adopted unanimously.” It further sets up that at said meeting all of its said assignors, the same being all of its members, were present and voted in favor of said resolution. In the bill of particulars the term “loss leaders” is defined as follows: “By the term 'Loss 'Leaders’ is meant an advertising and selling method and technique used by some retail chain-stores and used by the defendants in this case, whereby they offer for sale specific commodities, in this case, strawberries, not at a normal, reasonable or usual profit, not where the reduced price is due to deterioration or perishability of the goods, nor due to obsolescence, and at a reduced price not competitively required, but in fact at cost and even below cost, and at the same time stressing by advertising the sale thereof as an attraction and inducement to bring the customers into the store, not with the idea of making any profitable transaction out of these commodities, or in this case of the strawberries, but seeking thereby to give the impression that these stores or these defendants have a general low priced policy.” The plaintiff has also furnished a copy of its charter, from which it appears that it was incorporated on July 13th, 1937, under the laws of the State of Louisiana; that its object is to organize the farmers of that state into one group “in an effort to materially reduce the cost of production of their crops and to cooperate in securing for them the highest possible price for their crops,” and particularly with respect to the strawberry crop. The corporation was given the power to contract, to sue and be sued, and to acquire real and personal property by gift or otherwise, the same to be employed and disposed of in furtherance of the objects and purposes of the corporation. The charter further provides that every farmer who is a resident of the State of Louisiana, and who is a farmer by occupation or profession, and “who has been farming for the past year or more,” shall be eligible for membership, and by paying the sum of $1 shall become enrolled as a member for one year; and at the expiration of the first year each member is required to pay annually the sum of $1. In an amendment to the bill of particulars it is set up that there is a further provision of the constitution of said association providing that “The Board of Directors shall also have the power to protect and represent legally or in the courts every member of said organization in the bringing of class actions, or individual actions, or in the bringing of an action for and on behalf of all the members of said organization by said organization, either by assignment oral or written, assigning whatever right said members may have or otherwise.” It is also set up in said bill of particulars that the plaintiff will contend at the trial that the A. & P. sold Louisiana strawberries as “loss leaders” in 20 specifically designated cities in the United States during the year 1937, and in 23 such cities during the year 1938; that Kroger sold said strawberries as “loss leaders” in 16 designated cities in 1937, and in 19 in 1938; and that Safeway sold such strawberries as “loss leaders” in 11 designated cities in 1937, and in the same cities in 1938. The names of the alleged conspirators are given in some instances, and in other instances it is stated that the officers of certain designated defendants were the conspirators. To the amended complaint, as supplemented by the bill of particulars and amendments thereto, the remaining defendants have addressed motions to dismiss on the ground that said amended complaint, as supplemented, fails to state a claim upon which relief can be granted to the plaintiff; and this cause comes on for hearing upon said motions, and is submitted to the court on written briefs and oral argument. The defendants contend that the amended complaint is defective in several respects : ' that in each count the plaintiff has merely charged a violation of the applicable statute in the general language of the act, and has failed to allege facts sufficient to constitute a violation of the law by the defendants, and has also failed to allege facts showing damage to the business or property of its assignors proximately resulting from the alleged illegal acts of the defendants; that the plaintiff has not alleged compliance with specific requirements of Louisiana law necessary to enable it to maintain this suit as assignee; and that with particular reference to the alleged violation of Section 3 of the Robinson-Pat-man Price Discrimination Act, 15 U.S.C.A. § 13a, that said section is not an amendment to the Clayton Act, and is not one of the Anti-Trust laws within the meaning of § 1 of the Clayton Act, 15 U.S.C.A. § 12, but is a separate criminal statute, and that Section 4 of the Clayton Act, 15 U.S.C.A. § 15, providing for civil actions for treble damages for violation of the Anti-Trust laws, does not apply thereto; and, further, that said Section 3, insofar as it prohibits sales at “unreasonably low prices,” is void for uncertainty. While a number of most interesting questions are raised by these contentions, the conclusion we have reached renders it unnecessary for us to pass upon them all. As stated, this is an action for'treble damages under Title 15, Section 15 of the United States Code Annotated, providing that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” This statute, providing as it does for treble damages, should be strictly construed. American Banana Co. v. United Fruit Co., C.C., 153 F. 943; La Chappelle v. United Shoe Machinery Corp., D.C., 13 F.Supp. 939. The courts in applying this statute have laid down a rule which had been variously stated as follows: In Glenn Coal Co. v. Dickinson Fuel Co. et al., 4 Cir., 72 F.2d 885, 887: “To'recover, the plaintiff must establish two things: (1) A violation of the AntiTrust Act and (2) damages to the plaintiff proximately resulting from the acts of the defendant which constitute a violation of the Act. In a civil suit under this section, the gist of the action is not merely the unlawful conspiracy or monopolization or attempt to monopolize interstate commerce in the particular subj ect matter, but is damage to the individual plaintiff resulting proximately from the acts of the defendant which constitute a violation of the law. A mere conspiracy with intent to violate the law while it may be the basis of a valid indictment under the criminal sanction of the Anti-Trust Act, does not give rise to a personal civil suit for damages. “Thus it has been held in numerous federal decisions that in a civil suit under this special Act the declaration must allege facts from which the court can determine that there has been a violation of the Act with resultant damage proximately caused thereby to the plaintiff. In Alexander Milburn Co. v. Union Carbide & Carbon Corp. [4 Cir.] 15 F.2d 678, 680 (certiorari denied, 273 U.S. 757, 47 S.Ct. 459, 71 L.Ed. 876) this Court, by Judge Parker, said: “ ‘For it is not sufficient that the declaration be framed in the words of the statute, or that it allege mere conclusions of the pleader. It must describe with definiteness and certainty the combination or conspiracy relied on, as well as the acts done which resulted in damage to plaintiff,’ ” etc.; In Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742, 750, 751: “In a civil action for damages sustained because of a conspiracy in restraint of trade, the right of recovery is not based upon the conspiracy, but upon the injuries resulting therefrom. The fact that there may be a criminal conspiracy does not give a plaintiff an action for damages under section 7 of the Anti-Trust law, 15 U.S.C.A. § 15 note, supra. Glenn Coal Co. v. Dickinson Fuel Co. [4 Cir.] 72 F.2d 885; Strout v. United Shoe Machinery Co. (D. C.) 208 F. 646, 651. The gist of the action under this section is for injuries inflicted pursuant to the conspiracy for which the wrongdoer is liable. Morris & Co. v. National Ass’n of Stationers [7 Cir.] 40 F.2d 620.”; And on page 754 of 85 F.2d: “In the absence of an allegation of the causal connection between the damage, and the conspiracy to restrict interstate commerce in posters, no cause of action is stated under the Sherman Anti-Trust Act.”; In Hart v. B. F. Keith Vaudeville Exchange et al., 2 Cir., 12 F.2d 341, 345, 47 A.L.R. 775: “The right to recover damages under the Sherman Act requires proof of an injury to the business or property of the person or corporation suing ‘by reason of anything forbidden or declared to be unlawful by this act.’ The plaintiff who seeks recovery must bear the burden of proof, not only that there was an attempt or actual monopolization or a combine or conspiracy in violation of the anti-trust law, but it must be shown that there was injury to him as a proximate result. Jack v. Armour & Co. [8 Cir.] 291 F. 741; Rice v. Standard Oil Co. (C.C.) 134 F. 464.”; In Rice v. Standard Oil Co., C.C., 134 F. 464, 465: “It is apparent that mere proof that the defendant has entered into a contract or engaged in a combination or conspiracy in restraint of trade or commerce among the several states will not be sufficient to support a cause of action under the seventh section, for there must, in addition thereto, be proof that the plaintiff has, by reason thereof, sustained damage. In his declaration, therefore, the plaintiff must aver not only facts showing such a contract or combination or conspiracy as is declared by the act to be unlawful, but facts showing that by reason of such unlawful thing he has been injured in his business or property.”; In Twin Ports Oil Co. v. Pure Oil Co., 8 Cir., 119 F.2d 747, 751: “The mere fact that the existence of a conspiracy to raise prices is established is not sufficient ipso facto, to support a judgment for damages under the Sherman Act. This statute differs materially in its provisions from those of the Interstate Commerce Act which insure definite and specific recoveries for departures from published tariffs, and from payments of unreasonable and discriminatory freight rates. It is to be noted that here a recovery is sought for triple damages, a privilege that immediately suggests necessary definiteness in the basis of damages as attributable to the violation of the Federal Act.”; In Noyes v. Parsons et al., 9 Cir., 245 F. 689, 694: “If it appears from the complaint, and is proven, that the plaintiff has been so injured, the court has jurisdiction, and upon the verdict of a jury is required to award the damages provided in the act. But if, on the other hand, he has not been so injured, or if he has been injured, but not by reason of anything forbidden or declared to be unlawful by the act, he cannot recover in the action.”; And on pages 696, 697 of 245 F.: “The argument that the injuries suffered by the Washington Company grew out of the unlawful combination of the defendants in restraint of trade and commerce is not convincing, and the jurisdiction of a federal court, limited as it is by law, cannot be made to depend upon argument. The jurisdiction must not be a matter of mere inference, but must appear by distinct averments according to the rules of good pleading. Minnesota v. Northern Securities Co., 194 U.S. 48, 65, 24 S.Ct. 598, 48 L.Ed. 870, and Hull v. Burr, 234 U.S. 712, 720, 34 S.Ct. 892, 58 L.Ed. 1557.”; In Gerli v. Silk Ass’n of America et al., D.C., 36 F.2d 959, 960: “In terms, the statute (15 U.S.C.A. § 15) gives a right of action to one who has been ‘injured in his business or property.’ Keogh v. Chicago & N. W. R. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 67 L.Ed. 183. In order to state a cause of action, plaintiff must therefore show by appropriate allegation that he has been injured in his business or property. It is not enough to allege something forbidden by the Anti-Trust Laws (15 U.S.C.A. §§ 1-7, 15 [note]) and to claim general damage resulting therefrom. (American Sea Green Slate Co. v. O’Halloran [2 Cir.] 229 F. 77, 79), but the complaint asserting a statutory cause of action must affirmatively show the nature and character of the injury suffered, and that it was an injury to the plaintiff’s business or property within the meaning of the statute. Noyes v. Parsons [9 Cir.] 245 F. 689; Jack v. Armour & Co. [8 Cir.] 291 F. 741; Alexander Milburn Co. v. Union Carbide & Carbon Corp. [4 Cir.] 15 F.2d 678.”; In Keogh v. Chicago & Northwestern Railway Company et al., 260 U.S. 156, 164, 165, 43 S.Ct. 47, 50, 67 L.Ed. 183: “Under section 7 of the Anti-Trust Act, as under section 8 of the Act to Regulate Commerce (Pennsylvania R. R. Co. v. International Coal Mining Co., 230 U.S. 184, 33 S.Ct. 893, 57 L.Ed. 1446, Ann.Cas.1915A, 315), recovery cannot be had unless it is shown, that, as a result of defendants’ acts, damages in some amount susceptible of expression in figures resulted. These damages must be proved by facts from which their existence is logically and legally inferable. They cannot be supplied by conj ecture.”; In Ebeling v. Foster & Kleiser Co. et al., D.C., 12 F.Supp. 489, 491: “The wrongful act must be specific and the natural and probable effect of the combination and conduct with relation to plaintiff’s business, and this must be facts directly related to the defendants’ conduct from which damages are logically and legally inferable and not merely conjecture; and must be by the exercise of existing power, not merely that the power existed. Buckeye Powder Co. v. E. I. DuPont de Nemours Powder Co., 248 U.S. 55, 39 S.Ct. 38, 63 L.Ed. 123.”; In American Sea Green Slate Co. et al. v. O’Halloran et al., 2 Cir., 229 F. 77, 79: “To recover under the seventh section plaintiffs must show that, as a result of defendants’ acts, actual damages were sustained- — damages in some amount which is susceptible of expression in figures. These damages must be proved by facts from which their existence is logically and legally inferable — not by conjectures, or estimates. They must not be speculative, remote, or uncertain. As we understand the law, a jury may not merely guess that plaintiff lost $1,000 or $10,000 which they might have made, even if they feel reasonably sure that some loss was sustained. They cannot award damage as they do for pain or suffering in an action for personal injuries, or for reputation as they do in a libel suit.”; In H. E. Miller Oil Co. v. Socony-Vacuum Oil Co., Inc., et al., D.C., 37 F.Supp. 831: “While the allegations of the complaint sufficiently charge the conspiracy, and the overt act of actually increasing the price of gasoline, it does not necessarily follow from plaintiff’s allegation that it purchased gasoline at artificially maintained high prices that plaintiff’s business as a jobber suffered. The situation now presented is not comparable to a personal injury case where the mere allegation of personal injury necessarily implies some pecuniary damage.”; In Jack v. Armour & Co. et al., 8 Cir., 291 F. 741, 745: “But before a recovery can be had by a mere private person under this section, there must at least be an allegation of the manner, nature, extent, or amount of the injury sustained by such private person. The question whether the United States could sue upon such a showing as here made is not involved and is neither important nor decisive, and the cases cited by plaintiff are not in point. If plaintiff may sue for $75,000, and recover such sum, or even any respectable modicum thereof, simply because he happens to be engaged in raising, buying, and selling live stock, it would necessarily follow that every person in the United States engaged in a business similar to plaintiff could likewise sue and recover an equal sum. Obviously the mere statement of the proposition discloses its unsoundness. On both reason and authority, no one can maintain an action under the provisions of section 7 of the Sherman Anti-Trust Act, unless he has suffered an injury in his business or property by proximate reason of the violation by the defendant or defendants whom he sues, of some of the prohibitions contained in that act; for this is what the act says in plain and simple language. It is needless to say that it has been so construed by the courts. Locker v. American Tob. Co. [2 Cir.] 218 F. 447, 134 C.C.A. 247; American, etc., Co. v. O’Halloran [2 Cir.] 229 F. 77, 143 C.C.A. 353; American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826, 16 Ann. Cas. 1047.” While it is contended that one or more of the expressions just quoted, with particular reference to the necessity of alleging the amount of damage sustained by the plaintiff in cases of the nature under consideration, have been weakened by certain language of the United States Supreme Court in Story Parchment Co. v. Paterson Parchment Paper Company et al., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544, presently to be discussed, we believe that it may be safely said that to state a cause of action under Title 15, § 15, U.S.C.A., the plaintiff must allege facts showing a violation of the Anti-Trust laws and facts showing damage to his business or property, in some amount susceptible of expression in figures, proximately resulting therefrom. It will be noted from the foregoing that allegations of fact showing a violation of the law, should they be found m the complaint under consideration, are not in themselves sufficient; facts showing damages that can be measured in dollars, proximately resulting therefrom, must also appear; and, in this connection, it should be borne in mind that this is not an action to enjoin the alleged unlawful practices, or a criminal prosecution for violation of the Anti-Trust laws. As stated in Jack v. Armour & Co. et al., supra, “The question whether the United States could sue upon such a showing as here made is not involved and is neither important nor decisive,” and in Glenn Coal Co. v. Dickinson Fuel Co. et al., supra, “A mere conspiracy with intent to violate the law while it may be the basis of a valid indictment under the criminal sanction of the AntiTrust Act, does not give rise to a personal civil suit for damages.” This is an action for damages alleged to have been heretofore suffered by plaintiff’s assignors; and we have concluded that the determinative question in the entire case is whether the amended complaint contains legally sufficient allegations with particular reference to damages. With this thought in mind, we will attempt to analyze the said complaint as supplemented by the bills of particulars: It is alleged that the plaintiff is a nonprofit, cooperative corporation “composed of each and every strawberry grower in the State of Louisiana who ships strawberries in interstate commerce and functions as the marketing agency for its members in the marketing and distribution of strawberries;” that each and every member of its association, of which there are 8,795, has orally assigned to the plaintiff all of his right, title, and interest in and to all the damages to his business which he has sustained, as set out in the complaint; that the defendants were, prior to the times mentioned in the complaint, and are now, engaged in the retail grocery business as the owners and operators of retail stores located throughout the United States; that at the times mentioned in the complaint the A. & P. owned, operated, and controlled a chain of over 13,300 stores in at least thirty-five states of the Union; that Kroger had a chain of over 3,990 retail stores in the United States; and Safeway a chain of over 3,020 retail stores in the United States; that the defendants handled in the years 1937 and 1938 approximately 25% of plaintiff’s strawberries at retail through their stores operated throughout the United States. Then, in what is designated as count one of the amended complaint, follow the alleged violations of Sections 1 and 2 of the Sherman Anti-Trust Act, in which it is charged that the defendants combined and conspired with the object and intent of stifling competition and monopolizing the retail distribution of foodstuff products, particularly strawberries; that they employed the merchandising technique of using “loss leaders” of certain products, and particularly plaintiff’s strawberries, to destroy the business of competitors, and in that way control the sole outlet for strawberries and other food products, and that the result of said conspiracy was to enable them to dictate the price to be paid for plaintiff’s strawberries and to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States. Following this are the allegations of damages, with which we are particularly concerned, the allegations being that during the 1937 season plaintiff’s assignors shipped in interstate commerce 3,400 cars of strawberries, or 2,502,400 crates of strawberries, for which they received an average of $1.57 per crate; that “had it not been for the illegal acts of the defendants herein, the plaintiff through its members, the strawberry farmers of Louisiana, would have received * * * $6,005,760. for their strawberries, or an average of * * * $2.40 per crate, making a net loss to the plaintiff, through its members, the strawberry farmers of Louisiana, of I* * * $2,076,992.;" that during the 1938 season the plaintiff, through its members, shipped in interstate commerce 2,500 cars of strawberries, or 1,840,000 crates, for which its members received an average of $1.97 per crate; that had it not been for the alleged illegal acts of the defendants, the plaintiff, through its members, would have received $4,324,000 for their berries, or an average of $2.35 per crate; making a total loss to the strawberry farmers of Louisiana of $699,200. It is then alleged that the entire loss and damage was caused solely by the defendants’ wrongful acts. The plaintiff’s definition of “loss leaders,” as given in the bill of particulars, has heretofore been quoted in full. In count two, many of the allegations of the first count are adopted, and the remainder are practically identical with those of count one, except for the charge of an alleged violation of the Clayton Act. It is alleged that the use of strawberries as “loss leaders” by the defendants resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and it is further charged that the defendants “in the course of such commerce, discriminated in price and caused a discrimination in price between different purchasers of the said strawberries * * * who purchased from retail stores throughout the United States * * * and the effect of such discrimination was to substantially eliminate competition and tended to create a monopoly in the sale of strawberries.” The allegations of damages are identical with those in the first count. In count three, many of the allegations of the first count are likewise adopted, and it is charged, in effect, that the defendants resorted to the merchandising technique of using “loss leaders” as a means of price discrimination in said products, and more particularly in plaintiff’s strawberries, with the object of destroying competition and in that way controlling the sole outlet for plaintiff’s strawberries, and thereafter sold and contracted to sell plaintiff’s strawberries at unreasonably low prices and below the purchase price, for the purpose of destroying competition and eliminating competitors, practically throughout the United States. As in count two, so in count three, damages are set forth and calculated on the same basis as in count one. The prayer of the complaint is for judgment for the sum total of the damages claimed, trebled, plus interest and costs, including a reasonable attorney’s fee. Now, conceding, without deciding, that the plaintiff has in each count of the complaint alleged facts showing a violation of the Anti-Trust laws, it has, in our opinion, failed to state a cause of action under the treble damage statute because it has not alleged facts showing damage to the business or property of its assignors in an amount susceptible of expression in figures, proximately resulting from the alleged illegal acts. This suit was originally brought as a class action by the Louisiana Farmers’ Protective Union, Inc., and one Ellis M. Jenkins, one of the members of said association, who sued “individually for himself, and representing all other members,” but when the amended complaint was filed, Jenkins was dropped as a party plaintiff, and the remaining plaintiff, Louisiana Farmers’ Protective Union, Inc., sued as the alleged assignee of its 8,795 members. It did not, however, attempt to allege separate damages to its several assignors, but alleged damages in a lump sum to the group, which group it is alleged is composed of each and every strawberry grower in Louisiana who shipped strawberries in interstate commerce in the years 1937 and 1938. This sum was arrived at by alleging that during the year 1937 the plaintiff’s members shipped in interstate commerce 3,400 cars of strawberries, for which they received an average price of $1.57 per crate; that during the season of 1938 they shipped 2,500 cars of strawberries, for which they received an average price of $1.97 per crate; and that had it not been for the alleged illegal acts of the defendants herein, they would have received an average of $2.40 per crate during the 1937 season, and $2.35 per crate during the 1938 season; and they claim the difference between these alleged averages as damages. It will be noted that the plaintiff sues for no damage to itself, and bases its right to maintain the suit solely upon the 8,795 assignments. Therefore, the plaintiff is suing as assignee on 8,795 separate, individual claims. Now, had any one of the assignors brought suit against the defendants in his own name and upon his own claim, it would, of course, have been necessary that he allege damage to his business or property proximately resulting from the alleged unlawful acts of the defendants and in some amount susceptible of expression in figures; and the fact that he assigns his claim to another party cannot change this rule in the least. The plaintiff, as assignee, can have no better right than that of its assignor; it steps into his shoes; and the same principle applies whether the plaintiff sues as the assignee of one or of 8,795 assignors. This, it seems to us, is elementary. It is, therefore, necessary that the plaintiff allege facts from which damage to each and every one of its assignors in his individual business can be legally and logically inferred. Prior to the filing of the amended complaint herein, the situation was somewhat analogous to that in the case of Alabama Independent Service Station Ass’n, Inc., et al. v. Shell Petroleum Corporation et al., D.C., 28 F.Supp. 386, 390, wherein the association and certain of its members, service station operators, brought suit against the defendants for damages for violation of the Anti-Trust laws, and the question was raised as to the capacity of the association to maintain the action as a real party at interest, or otherwise. The court held that the association was not a proper party plaintiff, but stated that the remaining plaintiffs, as operators of filling stations, might properly remain and sue on behalf of all those similarly situated, but that for the recovery of damages, each member of the class must intervene to assert and prove his own damages. In this connection, the court used the following language: “The Alabama Independent Service Station Association, Inc., will be stricken as a plaintiff. We may add that the remaining plaintiffs, as operators of gasoline service stations, may properly remain as plaintiffs, and may sue on behalf of all of the similarly situated parties described in the complaint. See Rule 23(a) (3), Rules of Civil Procedure [28 U.S.C.A. following section 723c]; Moore’s Federal Practice, Vol. 2, pp. 2241 et seq. However, for the recovery of damages, each member of the class must intervene to assert and prove such damages to himself.” In the Alabama case, the court held that each member of the association who intervened must assert and prove his damages; and the plaintiff, in the instant case, by obtaining assignments from its members, cannot thereby disregard the requirement that the damage to each of its assignors be asserted. Relative to the lumping of the damages, the plaintiff has this to say in its brief: “The strawberry growers originally had each a separate cause of action, and each separate cause of action, if proved, constituted a fractional portion of the damage done the entire group, or whole, of the strawberry growers of Louisiana. The petition of the plaintiff, after all the causes of action of the individuals were assigned to it, now petitions the relief of the Federal District Court for the entire damage done to the growers of the strawberry crop in Louisiana by the defendants for the respective years complained of. This is the premise of the plaintiff. Repeating, the plaintiff has the right, and has elected to pursue the right, as assignee of all of the fractional interests of the strawberry growers (or individual causes of action, as they may be termed) to file suit in a single claim for damages against the defendants for the total sum of the compensating entire damage done its respective assignors.” In other words, it takes the position that, having alleged in a lump sum damage to all of the strawberry growers in Louisiana who in 1937 and 1938 shipped strawberries in interstate commerce, and having alleged that each and every one of said strawberry growers has orally assigned his claim to it, therefore, since it owns all the claims of all the parties who raised strawberries in Louisiana in 1937 and 1938, for shipment in interstate commerce, and has alleged damage to the entire group, it has sufficiently alleged damage to each one of the growers, and has a right to recover therefor. We do not deem it necessary to pass upon the validity of the alleged oral assignments, but, conceding, for the sake of argument, that oral assignments of claims of this nature are valid in Louisiana, and conceding that plaintiff’s alleged assignors, by reason of their failure to raise their hands at the meeting of the union at Hammond, thereby assigned their claims to the plaintiff, the court would still have to go a long way to accept, even for the purpose of a motion to dismiss, the allegations that all of the strawberry growers in Louisiana who shipped strawberries in interstate commerce during the years 1937 and 1938 are members of its association, that all of said parties were present at the meeting of the union at Hammond, and that all of them assigned their claims to it. A motion to dismiss of the nature under consideration is equivalent to the general demurrer; Federal Life Ins. Co. v. Ettman, 8 Cir., 120 F.2d 837; and “a demurrer does not admit facts which the court will take judicial notice are not true, nor does the rule apply to legally impossible facts, * * *” 49 C.J. pages 440, 441. The plaintiff is seeking damages arising out of the sale of strawberries which were grown during the months of March to May, inclusive, 1937, and March to May, inclusive, 1938. Among all the strawberry growers in Louisiana who grew berries for out-of-state markets there are bound to have been men of all ages and conditions of health, and it is inconceivable that all of those who were growing strawberries in .the month of May, 1937, were alive and attended the meeting at Hammond in March, 1939, and were at the assemblage when the resolution mentioned in plaintiff’s bill of particulars was adopted. Moreover, in such a large group it is almost inconceivable that no person under disability and no corporation had an interest in any of the crops. Neither is it likely that all who were members of the plaintiff union in May, 1937, maintained their membership by paying the dues of $1 per year to March, 1939. And our common sense teaches us that it would be impossible to get all members of a group as large as the strawberry growers of Louisiana to unite in an action of this character. But even so, plaintiff has failed to allege facts from which it appears that each of its alleged assignors was damaged in some amount susceptible of expression in figures. It alleges that the strawberry growers of Louisiana received an average of $1.57 per crate for the 1937 crop, and an average price of $1.97 per crate for the 1938 crop, whereas, had it not been for the alleged illegal acts of the defendants, they would have received an average of $2.40 per crate for the 1937 crop, and an average of $2.35 per crate for the 1938 crop. We are forced to take it that these are theoretical figures, since no basis for calculation is furnished by the plaintiff. While the allegations with reference to the violations of the AntiTrust laws would apply to each of the claims sued on, damages would vary in each particular case. It is alleged in the amended complaint that berries were sold, beginning in the latter part of the month of March, and through to the latter part of May, in both 1937 and 1938. The same price would not obtain on each and every day, even for berries of the same quality, and, of course, each of the growers did not deliver berries on every day during the season. Nor can it be assumed that all of the berries sold by each grower were of the same variety and quality. It is a known fact that strawberries are grown in many states of the union, and that Louisiana strawberries compete with those from other states. The court takes judicial notice of the general course of agriculture. 23 C.J., Evidence, Sec. 1815, page 64; Floyd et al. v. Ricks, 14 Ark. 286, 58 Am.Dec. 374; Tomlinson v. Greenfield, 31 Ark. 557; Jones on Evidence, Civil Cases, Third Edition, § 129, page 171. Further, strawberries compete with other berries and fruits. The prices of competing berries and fruits do not remain stable, but, on the other hand, fluctuate to a certain extent, and the market price of Louisiana strawberries on a given day is necessarily influenced thereby. The plaintiff alleges an average price, which means that some of the growers received more and some received less than the price named. It is certainly possible that some of those who received more than the average price were not damaged at all. It is clear to us that the plaintiff has failed to allege facts showing that “John Smith,” one of its assignors, suffered damage in an amount susceptible of expression in dollars. Plaintiff must bring itself within the rule enunciated by the court. It is asking for damages in an enormous sum, and that those damages be trebled, but it furnishes the court no basis for calculation, nothing wherewith in any degree to measure the damages. The primary purpose of the Anti-Trust laws is to protect the public. The private remedy is incidental. Glenn Coal Co. v. Dickinson Fuel Co. et al., supra; D. R. Wilder Manufacturing Company v. Corn Products Refining Company, 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520, Ann.Cas.1916A, 118. The statute allowing treble damages is strictly construed. Plaintiff’s allegation of lump damages to the group of strawberry growers falls far short of compliance with the rule laid down in the cases of Jack v. Armour & Co. et al., supra, Keogh v. Chicago & Northwestern Ry. Co. et al., supra, and American Sea Green Slate Co. et al. v. O’Halloran et al., supra. Moreover, the necessary causal relationship between the alleged violations Of the statutes and the alleged damage to plaintiff’s assignors, does not appear: In count one, it is first alleged that the defendants combined and conspired with the object and intent of stifling competition and monopolizing the retail distribution of food products in the United States, particularly strawberries. As stated in the Glenn Coal Co. case, supra, a mere conspiracy to violate the Anti-Trust laws does not give rise to a personal civil suit for damage. It is then alleged that in pursuance of the plan the defendants employed the merchandising technique of using “loss leaders” of said products, and more particularly of plaintiff’s strawberries, to destroy the business of competitors and in that way control the sole outlet for strawberries and other food products. It is not alleged, however, that the business of defendants’ competitors was destroyed. The plaintiff then alleges that the result of said conspiracy was to permit the defendants to dictate, not only the price to be paid for plaintiff’s strawberries, but to create a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States. And preceding, and in connection with, these allegations, it is alleged that in 1937 and 1938 the defendants handled approximately 25% of plaintiff’s members’ strawberries at retail. It is then stated that had it not been for these acts on the part of the defendants, the plaintiff’s assignors would have received a higher average price than the average price that was received for their 1937 and 1938 crops. Just why or how they would have received a larger price is not stated. It is stated in count two that the use of strawberries as “loss leaders” by the defendants resulted in price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and for the purpose of this opinion we will take it that a similar allegation has been made in count one. The sum total of these allegations is that the defendants entered into a conspiracy to monopolize the retail distribution of food products in the United States, particularly strawberries; that they handled 25% of the Louisiana strawberry crops for 1937 and 1938, and employed the merchandising technique of using “loss leaders” to destroy the business of competitors, and in that way control the sole outlet for strawberries, and that the result was the creation of a monopoly unto themselves for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States, which resulted in a price depreciation of the entire strawberry market and an elimination of competition in the strawberry field, and that had it not been for this, the plaintiff’s assignors would have received higher average prices for their crops for said years than they did. We do not think that the plaintiff has here stated facts which logically lead to the conclusion that the damage claimed proximately resulted from the alleged unlawful acts on the part of the defendants. We do not think that the plaintiff has alleged facts showing an effective monopoly, that is, a monopoly sufficiently effective to bring about the alleged damage to plaintiff’s assignors. If the defendants purchased only 25% of the Louisiana strawberries shipped in interstate commerce, other parties, evidently their competitors, purchased the remaining 75%. There is no allegation to the effect that the defendants purchased strawberries from any other state whatever, and it is a well known fact that strawberries are grown rather generally throughout the United States. The 75% of the Louisiana crop purchased by others and strawberries grown elsewhere necessarily entered into competition with the 25% of the Louisiana crop purchased by the defendants, and naturally influenced the price received by the Louisiana growers for their berries. We have commented on this heretofore. It may be argued that strawberries are a seasonal crop and on that account the competition from other states is limited, but, on the other hand, a large part of the strawberry crop is canned and preserved and sold and distributed throughout the entire twelve months of the year. Furthermore, strawberries that are canned and used locally throughout the United States enter, to a certain extent, into competition with Louisiana strawberries. The allegation that the result of the conspiracy was to create a monopoly unto the defendants for the exclusive distribution of all strawberries and agricultural and foodstuff commodities at retail in the United States cannot be accepted as true even on motion to dismiss. It is well known that there is no monopoly in the retail food business. The court will take judicial notice of the fact that other chain stores and “independent” grocery stores are quite numerous throughout the United States. State v. Miksicek, 225 Mo. 561, 125 S.W. 507, 135 Am.St.Rep. 597; 23 C.J., Evidence, § 1816, page 64. The allegation with reference to price depreciation in the entire strawberry field having been brought about by the sale of 25% of the Louisiana crop as “loss leaders,” fails to take into consideration other factors which cause a price depreciation in agricultural and food products, such as overproduction, labor conditions, weather conditions, manner of cultivation and fertilization of the crop, quality, etc. No facts are alleged in the complaint relative to the amount of strawberries raised either in Louisiana or in the entire United States during the years 1937 and 1938. The facts alleged with reference to the Louisiana crop deal solely with berries shipped in interstate ' commerce during those years. Neither does the complaint contain any allegation with reference to the quality of the Louisiana berries during the two years in question as compared to the quality of berries raised elsewhere. According to the complaint, the strawberry farmers of Louisiana shipped 3,400 cars of strawberries during the 1937 season, for which they received an average price of $1.57 per crate, and 2,500 cars during the 1938 season, for which they received an average of $1.97 per crate. It is not stated why the average price received was higher in 1938 than it was in 1937. It is noted, however, that the plaintiff contends that its assignors suffered nearly three times as much damage on account of the alleged illegal acts of the defendants in 1937 as they did in 1938, it being contended that the damage in 1937 was $2,076,992, whereas, in 1938 it was $699,200. There are no direct allegations in the complaint to explain this difference. This state of affairs, however, does not indicate that the sale of strawberries as “loss leaders” in 1937 had a deleterious effect on the 1938 market. It is not alleged directly that there was a smaller production in 1938 than in 1937, but it is alleged that 900 less cars were shipped, which would indicate a smaller production, and which tends also to illustrate the effect of a large production on the average market price. Here we see exemplified the observation we have heretofore made to the effect that, insofar as the allegations of the complaint are concerned, the difference in average market prices may have been due to overproduction or other factors rather than the sale of strawberries at retail as “loss leaders.” It is to be kept in mind that the plaintiff’s assignors are not competitors of the defendants. Had this action been brought by the proprietors of retail stores, competing with the defendants, it might be logically assumed that damages to them would proximately flow from the alleged illegal acts of the defendants, but no such assumption can be indulged in where the complaining parties are not competitors of the defendants; and here, in our opinion, is the main difficulty that confronts the plaintiff. Moreover, where there is competition between the plaintiff and the defendant, the damages are more readily measured because the plaintiff’s business experience before and after the consummation of the alleged illegal acts provides a basis for determination of the damages. The independent and other chain grocery stores which compete with the defendants may have been injured by the sale of strawberries as “loss leaders” by the defendants, but they are not complaining here, and, as stated in Carbonic Gas Co. of America, Inc., v. Pure Carbonic Co. of America et al., D.C., 4 F.Supp. 992, 993: “A plaintiff may not, therefore, assume the role of a deus ex machina for other parties and found a cause of action in its own favor on discrimination in violation of the Clayton Act as to such other parties.” It is true that we might speculate that the growers suffered to some extent from the repercussion, due to the effect upon the independent and other chain grocery stores of the sale of Louisiana berries as “loss leaders,” but such damages, insofar as the allegations of the amended complaint show, would be speculative and remote, rather than direct. It does not necessarily follow, however, that even if the defendants had sold the strawberries at higher prices, the growers would have received a higher price for their crop. The plaintiff so concludes in its complaint, but there are no allegations of fact therein upon which to base such a conclusion. It is well known that ordinarily consumption increases as the price of a commodity declines, and that consumption decreases as the price is raised. The sale of strawberries as “loss leaders” by the defendants did not necessarily dama