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Long v. Arizona Portland Cement Co.

Supreme Court of Arizona

June 15, 1961

Russell F. LONG, Appellant,
v.
ARIZONA PORTLAND CEMENT COMPANY, Walter H. Coleman, G. L. Gibbons, dba Arizona Cement Transportation Co., and M Corporation, N Partnership, John Doe I, John Doe II, and John Doe III, Appellees.

[89 Ariz. 367] Hughes & Steward, Phoenix, for appellant.

Page 742

Boyle, Bilby, Thompson & Shoenhair, and McCarty, Chandler, Tullar & Udall, Tucson, for appellees.

LOCKWOOD, Justice.

This is an appeal from an Order of the Superior Court of Maricopa County granting defendants' motions to dismiss the complaint for failure to state a claim, pursuant to 16 A.R.S. Rules of Civil Procedure, Rule 12(b), subd. 6. Plaintiff, hereinafter referred to as 'plaintiff,' brought suit against defendant Arizona Portland Cement Company and defendant Arizona Cement Transportation Co., hereinafter referred to as 'Cement Company' or 'Transportation Co.', under A.R.S. §§ 44-1401 et seq., which relate to combinations in restraint of trade.

Plaintiff's complaint alleged, in substance, that plaintiff was a duly licensed general contractor who, on various occasions, needed sack and bulk cement and who was financially able to pay for any cement purchased. The complaint further stated that defendant Cement Company was and is engaged in the manufacture of bulk and sack cement for sale in Arizona, and that defendant Transportation Co. was and is a certificated common carrier in Arizona, actively engaged in the transportation of bulk and sack cement throughout the state. The complaint asserted that on several specified occasions plaintiff purchased sack cement from defendant Cement Company for his own use at jobs located throughout Arizona. There were further allegations that plaintiff possessed a truck licensed for the transportation of such cement but that defendant Cement Company refused to permit the transportation of such cement on plaintiff's truck; that plaintiff then engaged the services of a common carrier of construction materials licensed by the Arizona Corporation Commission to haul such cement, but that defendant Cement Company refused to sell or load such cement on the licensed vehicle which plaintiff had hired. The complaint concluded by stating that the refusal of defendant Cement Company to sell cement to plaintiff except on the condition that he use the transportation service of defendant Transportation Co. amounted to a 'conspiracy and plan to regulate the transportation' of such cement and that these conditions resulted in damage to plaintiff because he was forced to pay more for transportation of the cement than he would have paid had he been permitted to use his own or a hired truck.

The sole question presented by this appeal is whether the complaint, assuming all well-pleaded facts to be true and indulging in all inferences which reasonably may be drawn therefrom, sets forth facts sufficient to state a claim. In re Cassidy's Estate, 77 Ariz. 288, 270 P.2d 1079. This Court and the United States [89 Ariz. 368] Supreme Court have recently held that the test as to whether a complaint is sufficient to withstand a motion to dismiss is whether enough is stated therein which, if true, would entitle plaintiff to some kind of relief on some theory, and the court should not grant a motion to dismiss unless it appears certain that plaintiff would be entitled to no relief under any state of facts which is susceptible of proof under the claim as stated. Builders Finance Co. v. Holmes, 89 Ariz. 157, 359 P.2d 751, 752; Mackey v. Spangler, 81 Ariz. 113, 301 P.2d 1026; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.

The statutory provisions upon which the complaint before us is bottomed are extremely broad in their scope. The relevant portions of A.R.S. § 44-1401 read as follows:

'A. A trust is a combination of capital, skill or acts by two or more persons for any of the following purposes:

'1. To create or carry out restrictions in trader or commerce or aids to commerce, or to carry out restrictions in the full and free pursuit of any business authorized or permitted by law.

* * *

* * *

'3. To prevent any competition in the manufacture, making, transportation,

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sale or purchase of merchandise, products or commodities, or prevent competition in aids to commerce.

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