Opinion
7 Div. 924.
September 29, 1972. Rehearing Denied December 21, 1972.
Appeal from the Circuit Court, Etowah County, James B. Waid.
Burns, Carr Shumaker, Gadsden, for appellants.
Allegations of a pleading must be taken as true on demurrer thereto. Air Engineers, Inc. v. Reese, 283 Ala. 355, 217 So.2d 66; Long v. Long, 255 Ala. 353, 51 So.2d 533. When averred facts show relation of parties and duty in premises, breach thereof may be pleaded by way of conclusions. Tenn. Valley Sand and Gravel Co. v. Pilling, 35 Ala. App. 237, 47 So.2d 236, Id. 47 So.2d 245; Louisville Nashville R. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874. The "Rule of Reason" normally requires an ascertainment of the facts peculiar to the particular business. There are also per se violations of antitrust laws. That category of antitrust violations is made up of agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738; Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545.
Hugh Reed, Jr., Centre, Hubert Burns, Gadsden, Ira L. Burleson and Ralph B. Tate, Birmingham, for appellees.
A pleading must set forth a copy or aver the terms of the instrument vital to plaintiff's demand. McKenzie v. North River Ins. Co., 257 Ala. 265, 58 So.2d 581; Maloney v. Fulenwider, 213 Ala. 205, 104 So. 396. An appellant assigning as error that the court erred in sustaining a demurrer to the complaint assumes the burden of showing that all grounds of the demurrer are bad and assignments of error not substantially argued in brief are deemed waived. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7; Murphy v. Pickle, 264 Ala. 362, 87 So.2d 844; Caffee v. Durrett, 282 Ala. 71, 209 So.2d 210. In alleging a good cause of action under Title 7, Section 124 there must be sufficient allegations of facts and not conclusions and a complaint in the words of the statute is insufficient. Ex parte Rice, 258 Ala. 132, 61 So.2d 7; 58 C.J.S. Monopolies, § 100, p. 1122; Foster v. Shubert Holding Co., 316 Mass. 470, 55 N.E.2d 772; Denton v. Ala. Cotton Co-op Assn., 30 Ala. App. 429, 7 So.2d 504. Each count of a complaint must state a cause of action against all defendants sued. M. Leigh Harrison, "Reform of Alabama Pleading", 6 Ala. Law Review 28; Skinner, "Stagnation or Modernization: Alabama's Crisis", 32 Ala. Lawyer 128; McMahen v. Western Union Tel. Co., 209 Ala. 319, 96 So. 265. Facts and not legal conclusions must be alleged to state a cause of action for violation of the antitrust laws. Ex parte Rice, 258 Ala. 132, 61 So.2d 7; Beasley-Bennett El. Co. v. Gulf etc., Ass'n., 273 Ala. 32, 134 So.2d 427. A count in a complaint alleging more than one cause of action is subject to apt demurrer. Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So.2d 229; Ford v. Henderson, 243 Ala. 274, 9 So.2d 881.
Upon an examination of the assignments of error, the briefs of appellants and appellees, and the transcript of the record, we are of the opinion that the judgment of the lower court entering a non-suit is due to be affirmed.
In brief, appellants, in effect, admit that the trial court should have sustained demurrers filed by appellees to counts 1, 2, and 3 of the complaint.
An examination of counts 4, 5, and 6 shows that there was at least one good ground of each demurrer to each of these counts. Therefore, each demurrer to each of these counts was properly sustained.
In view of the conclusion which we reach, it is not necessary to discuss the motions of the appellees to strike the transcript of record and dismiss the appeal and to strike the brief of the appellants.
The foregoing opinion was prepared by Circuit Judge WILLIAM C. BIBB, who has been appointed for temporary duty on the Supreme Court by the Chief Justice, and adopted by this court as the opinion of this court in this case.
Affirmed.
MERRILL, HARWOOD, BLOODWORTH, MADDOX, McCALL and SOMERVILLE, JJ., concur.
HEFLIN, C. J., and SIMPSON and COLEMAN, JJ., not sitting.