This is a treble damage action under § 4 of the Clayton Act, 15 U.S.C.A. § 15, for violation of § 1 of the Sherman Act, 15 U.S.C.A. § 1.

Lester J. Albrecht (hereafter plaintiff) appeals from a judgment entered pursuant to a jury verdict finding for The Herald Company, a corporation, d/b/a Globe-Democrat Publishing Company, defendant-appellee (hereafter Globe-Democrat). We affirm.

For many years the Globe-Democrat has been a morning newspaper in St. Louis, Missouri, delivered to home customers of the St. Louis and other areas through a system of 172 routes. Globe-Democrat carriers are entrepreneurs, purchasing their papers at wholesale and selling them at retail. Plaintiff owned and operated Route 99 in the City of Kirkwood, St. Louis County, said route consisting of some 1200 customers.

Globe-Democrat advertised in its newspaper a suggested retail price. Each carrier had an exclusive territory but was subject to termination inter alia for charging more than the suggested retail price. In case of termination, the carrier was given sixty days to provide a satisfactory purchaser for his route. Plaintiff had knowledge of Globe-Democrat's written price policy.1

Plaintiff adhered to the suggested retail price for several years but started overcharging in 1961. He admittedly received calls from Globe-Democrat about reported overcharging in 1961 and 1962. Finally, on May 20, 1964 Globe-Democrat wrote plaintiff as follows:

"The Globe-Democrat Publishing Company has received and referred to you a large number of complaints from customers in the territory you are servicing as a carrier that you are charging subscribers more than the publisher's suggested retail price.

"The system we customarily follow of respecting as exclusive territories of our carriers prevents the normal effect of competition to keep prices down. In order to protect the reading public against artificially high prices in restraint of trade in the territories of overpricing carriers, we have expressed in our statement of policy the intention to compete in such territories by selling the Globe-Democrat at retail ourselves or for resale by another carrier at the lower prices in the over-priced territory.

"In accordance with this policy, we are sending to each resident of your appointed territory the enclosed letter."

The enclosed letter advised the residents of the territory that some subscribers were being overcharged and that the Globe-Democrat would deliver the paper at the suggested retail rate.2 These letters evidenced Globe-Democrat's decision to compete and provide its readers with the paper at the suggested rate. In addition, Globe-Democrat directed the Milne Circulation Sales Corporation, a national firm with a St. Louis office, whose business it was to procure readers for newspapers throughout the country, to engage in telephone and house-to-house solicitation to all the residents of the area in Route 99.3 The customers thus procured — some new — some who had quit because of plaintiff's overcharge — some who changed to take advantage of the lower price — were furnished home delivery of the paper by Globe-Democrat personnel. This campaign resulted in a customer list of 314 by July 7, 1964. Globe-Democrat did not want to engage in the carrier business, and in July of 1964 advertised the new route as available without cost. George John Kroner took over the route. Kroner, a route carrier in another neighborhood, knew the Globe-Democrat would not tolerate overcharging. He knew why the route was given to him without charge and understood that he might have to return it to Globe-Democrat if plaintiff sold his route or discontinued his overcharging practice.

During this period and thereafter, Globe-Democrat continued to sell its papers to plaintiff and plaintiff continued to serve his customers. On June 1, 1964, Globe-Democrat again objected to plaintiff about overcharging and warned plaintiff that legal steps would be taken if necessary. Following this warning, a conference between plaintiff and Globe-Democrat took place. Plaintiff was told that he could charge any price he wanted, but unless the Globe-Democrat's policy was followed, the Globe-Democrat did not have to do business with him. Plaintiff continued his practice of overcharging.

On or about July 27, 1964, a representative of Globe-Democrat told plaintiff that the Globe-Democrat was not interested in being in the carrier business and would be happy if plaintiff would take the customers back so long as he charged the suggested retail price. Plaintiff made no commitment but left the meeting and made an appointment with his attorney to bring this lawsuit. On August 21, 1964, after institution of the suit, Globe-Democrat notified plaintiff of termination of his appointment as a Globe-Democrat carrier:

"We have received a copy of the Complaint which you have filed in the U. S. District Court asking damages from us in the amount of three hundred forty thousand dollars.

"It seems apparent that the prosecution of this action is clearly inimical to the purpose for which your appointment as carrier was made and you are hereby notified that your appointment as carrier is terminated.

"However, in accordance with our statement of policy, we will nevertheless give you the opportunity of producing a substitute whose credit, experience and efficiency is satisfactory to us, and we will not object to his appointment on the ground that he may be paying you in connection therewith. Under the circumstances, with the lawsuit pending, we believe that sixty days is a reasonable time for this purpose.

"Accordingly, we shall cease selling you newspapers on October 21st, 1964. In the meantime, we will be ready to interview any substitute you may wish to produce."

Thereafter, Globe-Democrat granted plaintiff an extension of nine days to consummate the sale of his route. He sold the route for $12,000.00, $1,000.00 more than he had paid for it, but less than he could have gotten if Globe-Democrat had returned Kroner's 300 odd customers then comprising Route 198. Despite the competition, plaintiff retained some 900 of his original 1200 customers.

This case went to the jury, which considered the sole question whether § 1 of the Sherman Act was violated by reason of a "combination" between the Globe-Democrat and plaintiff's customers or with Milne or Kroner. This was plaintiff's theory under his amended complaint. The original complaint was in two counts, the first of which plaintiff dismissed before trial. During trial plaintiff amended Count II, eliminating the charges of conspiracy and agreements and charging a "combination" between the Globe-Democrat and "plaintiff's customers and/or Milne Circulation Sales, Inc., and/or George Kroner."4 In charging the jury, the District Court used as its principal guide the teachings of United States v. Parke, Davis & Co., 362 U.S. 29, 80 S. Ct. 503, 4 L. Ed. 2d 505 (1960).5

Restraint of trade embraces only acts, contracts, agreements or combinations which restrict competition or unduly obstruct due course of trade, thereby operating to the prejudice of the public. The Supreme Court said in Apex Hosiery Co. v. Leader, 310 U.S. 469, 493, 60 S. Ct. 982, 992, 84 L. Ed. 1311 (1940):

"The end sought [by the Sherman Act] was the prevention of restraints to free competition in business and commercial transactions which tended to restrict production, raise prices or otherwise control the market to the detriment of purchasers or consumers of goods and services * * *."

and in Northern Pac. R. Co. v. United States, 356 U.S. 1, 4, 78 S. Ct. 514, 517, 2 L. Ed. 2d 545 (1958): "The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade." See also United States v. American Linseed Oil Co., 262 U.S. 371, 388-389, 43 S. Ct. 607, 67 L. Ed. 1035 (1923); American Column & Lumber Co. v. United States, 257 U.S. 377, 400, 42 S. Ct. 114, 66 L. Ed. 284 (1921); Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 610, 34 S. Ct. 951, 58 L. Ed. 1490 (1914); Kansas City Star Co. v. United States, 240 F.2d 643, 658 (8th Cir. 1957), cert. den., 354 U.S. 923, 77 S. Ct. 1381, 1 L. Ed. 2d 1438 (1957); Feddersen Motors, Inc. v. Ward, 180 F.2d 519, 521 (10th Cir. 1950).

Globe-Democrat's activity here did not hinder, but fostered and actually created competition to the benefit of the public. To have condoned plaintiff's overcharging would have been a signal to all carriers, each monopolistic in his own right, to mulct the public for all the traffic would bear.

If Globe-Democrat's activities constitute a violation of the antitrust laws, it has only one alternative, and that is to terminate all home delivery carriers by the simple declination to sell. Globe-Democrat could then make the home deliveries by its own employees. It would thus automatically become a monopolist itself and wreck such havoc as Mr. Justice Douglas decried in his opinion in Standard Oil Co. of Cal. and Standard Stations v. United States, 337 U.S. 293, 318-319, 69 S. Ct. 1051, 1066, 93 L. Ed. 1371 (1949):

"But beyond all that there is the effect on the community when independents are swallowed up by the trusts and entrepreneurs become employees of absentee owners. Then there is a serious loss in citizenship. Local leadership is diluted. He who was a leader in the village becomes dependent on outsiders for his action and policy. Clerks responsible to a superior in a distant place take the place of resident proprietors beholden to no one."

The routes are valuable property rights owned by the 173 carriers. Carriers were dealt with fairly as shown by the evidence of profit ensuing and sale price of the routes. There is no suggestion in the record to the contrary. Moreover, it was Globe-Democrat and not the carriers which constantly sought additional customers to carriers' benefit through the exclusive employment of Milne Circulation Sales, Inc. for that purpose. Thus, if Globe-Democrat resorted to its only alternative, the cure would be worse than the disease. Globe-Democrat by becoming a monopolist would not benefit the public one whit. The facts in this case demonstrate, without question we think, no evil at which the Sherman Act struck. Furthermore, pursuing the alternative would destroy valuable property rights, and one of the purposes of Sherman was to preserve and protect property rights. The Supreme Court said in the first Standard Oil case, Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, at 78, 31 S. Ct. 502, 523, 55 L. Ed. 619 (1911), "* * * one of the fundamental purposes of the statute is to protect, not destroy, rights of property."

The principal issue is whether the record evidence compels, as a matter of law, a conclusion that Globe-Democrat participated in an unlawful combination in restraint of trade.

Home delivery of newspapers, for longer than anyone can remember, has been conducted by a system of exclusive routes. Practicality dictates this as a morning newspaper must be delivered to the homes of readers throughout the city by a certain time. When one of the witnesses was asked how long such a method of distribution had been used by Globe-Democrat, he answered "forever." Other than payment of bills and timely delivery of the paper in good condition, the only requirement of Globe-Democrat carriers was that the public not be overcharged. Obviously, this policy was adopted to comply with the antitrust laws by insuring competition necessary for the protection of the public. Home delivery by the route system is monopolistic, whether done through independent merchants such as plaintiff, or done by the publisher. The public's protection from the harmful effects therefrom can be guaranteed only by preventing overcharging through insuring competition.

Combination is usually defined as the union or association of two or more persons for the attainment of some common end.6 Globe-Democrat did not combine with anyone. Its action taken to provide competition to plaintiff was completely unilateral. When customers started complaining and some discontinuing their subscriptions, Globe-Democrat warned plaintiff. When Globe-Democrat's repeated warnings were ignored, it offered plaintiff's dissatisfied customers its product at its announced price. It did this first by letter followed by telephone and door-to-door campaign. It delivered the customers thus obtained by its own employees. Globe-Democrat acted only through its employees and agents. All the while, it continued to sell papers at wholesale to plaintiff. Thus, it became a carrier itself in competition with plaintiff. Once Route 198 was established by Globe-Democrat, competition was fait accompli. It was only thereafter that the new route was given to Kroner. Even after this, Globe-Democrat attempted to persuade plaintiff to desist from overcharging. Plaintiff, however, filed this suit, which led to his termination as a carrier. Globe-Democrat had a legal right to terminate plaintiff for filing the lawsuit.7 It had the right to decline to sell papers to him for good cause, no cause, or any cause except in conjunction with a scheme to violate the antitrust laws. United States v. Parke, Davis & Co., supra; United States v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992 (1949); House of Materials, Inc. v. Simplicity Pattern Co., 298 F.2d 867 (2nd Cir. 1962).

Ordinarily, the existence of restraint of trade is a question of fact for the jury's determination.8 Plaintiff insists, however, that, as in Parke, Davis & Co., the question here is one of law and not of fact. If that be the case, our conclusion would be the same, as we are convinced that plaintiff failed to establish a Sherman Act violation.

Plaintiff argues that this case is controlled by Parke, Davis and the "per se" cases such as United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940). Neither Parke, Davis nor any of the "per se" cases are apposite in fact to the case at bar. Aside from the fact that plaintiff here eliminated any charge of conspiracy or agreement; that no combination whatsoever existed; and there was no coercion other than providing legal competition, the record evidence reveals many obvious distinctions from any of the reported cases relied upon by plaintiff.9

As examples, none of the cited cases involves a business whose product must be delivered daily at a certain time by a monopolistic delivery man; and in none does the sales price of the product to the consumer represent only a fraction of the cost of the product.10 In none is the only alternative a monopoly leaving unprotected the public interest. In none did the only alternative result in destruction of valuable property rights which the Sherman Act seeks to protect. In none did the producer continue to sell to the distributor on the same terms, but also provide the public with the alternative to purchase the product at a lower price.

Plaintiff's reliance on Parke, Davis is misplaced. The Court there found an illegal combination violative of the Sherman Act:

"In thus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers' adherence to its suggested retail prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices and violated the Sherman Act." Supra, 362 U.S. at 45, 80 S.Ct. at 512.

Contrarily, in the instant case Globe-Democrat's activities were unilateral and no combination was formed. At this juncture, Globe-Democrat had not gone so far as to decline to sell — it continued to sell to plaintiff at the same price. After competition was established, plaintiff retained some 900 of his original 1201 customers. Only later when plaintiff brought suit was he terminated. Even then the Globe-Democrat continued to sell him until he sold the route.

Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211, 71 S. Ct. 259 (1951), furnishes plaintiff with his strongest "per se" argument. Kiefer-Stewart is inapposite as in that case an agreement existed among competitors to fix a maximum resale price, thus forming an illegal combination. In Kiefer, there was no route system necessary, no timely home delivery required, and no natural monopoly involved whether done by the producer or distributor.

We will not unduly burden this opinion by demonstrating distinctions between this and other cases, but it can safely be said that commencing with the first case under the Act, United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 2d 325 (1895), and continuing through United States v. General Motors, 384 U.S. 127, 86 S. Ct. 1321, 16 L. Ed. 2d 415 (1966), all reported cases are readily distinguishable from the case at bar.

The Supreme Court in United States v. Hutcheson, 312 U.S. 219, 230, 61 S. Ct. 463, 465, 85 L. Ed. 788 (1941), said, "[b]y the generality of its terms, the Sherman law had necessarily compelled the courts to work out its meaning from case to case." It is because of the generality of the terms of the Act coupled with the complexity of modern business that such rules as Parke, Davis and the "per se" became necessary for the public's protection. The basic purpose — the ratio decidendi — of the Sherman Act was protection of the public interest and preservation of freedom of competition. We, therefore, cannot construe the Sherman Act to compel Globe-Democrat to pursue a course which would restrict competition to the prejudice of the public interests.

"[N]othing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurb conclusion." In Re Chapman, Petitioner, 166 U.S. 661, 667, 17 S. Ct. 677, 680, 41 L. Ed. 1154 (1897); Lau Ow Bew v. United States, 144 U.S. 47, 59, 12 S. Ct. 517, 36 L. Ed. 340 (1892); State of Maryland, to Use of Burkhardt v. United States, 165 F.2d 869, 872 (4th Cir. 1947).

The rule of reason conceived in the original Standard Oil case, supra, is but a rule of common sense and must be applied to the instant case if the public is to be protected.

Those familiar with the historical background of the Sherman Act will recognize that none of Globe-Democrat's actions resembles the evils that led to the enactment of the statute. It must be conceded that the Globe-Democrat could have declined to do business with plaintiff and deliver the papers itself or through another with impunity. Globe-Democrat did not go this far and should not be penalized for its plan to protect the public against overcharging. Neither should plaintiff be rewarded for his avarice. A common sense consideration of the record evidence compels the conclusion that Globe-Democrat's action in providing competition did not remotely restrain trade, but, contrarily, fostered competition, and, therefore, our conclusion is consistent with the Sherman Act and the teachings of the Supreme Court.

As a subsidiary issue, plaintiff contends the court erred in instructing the jury that in order to have a combination, there must be a common purpose either to accomplish an unlawful act by lawful means or to accomplish a lawful act by unlawful means. This was the plaintiff's theory of the case and the only basis for recovery alleged in his complaint as amended. It was the theory upon which the case was tried and upon which plaintiff's counsel argued to the jury.11 It is too late after conclusion of the evidence for plaintiff to shift theories. Cf. Armstrong Cork Co. v. Lyons, 366 F.2d 206 (8th Cir. 1966), and cases there cited; Whiteside v. W. T. Bailey Lumber Co., 274 F. 96 (8th Cir. 1921) and Bracken v. Union Pac. R. Co., 75 F. 347 (8th Cir. 1896). In any event, this assignment of error, as well as the others relating to the court's refusal to give certain proffered instructions, is of no consequence by reason of our conclusion that the undisputed evidence fails to show a Sherman Act violation.

The judgment is affirmed.