Appeal Court of Appeals for the Second Circuit, Case No. 172, 173

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42 F.2d 152 (1930)


Nos. 172, 173.

Circuit Court of Appeals, Second Circuit.

May 19, 1930.

*153 *154 Greene & Hurd, of New York City (George F. Hurd, Daniel S. Murphy, and S. Giddings Howd, of New York City, of counsel), for appellants.

Emanuel Harris, of New York City (Nathan Burkan, Sol. A. Rosenblatt, and Emanuel Harris, all of New York City, and Thomas G. Haight, of Jersey City, N. J., of counsel), for appellees.

Before SWAN, CHASE and MACK, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Much of the argument contained in the rather voluminous briefs filed, though ostensibly made on the question of sufficiency of proof, is directed to what has already been decided by the Supreme Court in Ramsay v. Bill Posters, supra. It should be needless to point out that it is idle to ask us now to discuss the sufficiency of these complaints, for the defendants are bound to regard that as established, and so are we. United States Trust Co. v. New Mexico, 183 U. S. 535, 539, 540, 22 S. Ct. 172, 46 L. Ed. 315. What is now open relates to the adequacy of the proof on which the verdicts underlying the judgments were rendered and errors, if any, committed during the trial in the District Court. Not only have the defendants, including Briggs, and Ivan B. Nordhem Company whose nonparticipation in the unlawful combination and conspiracy is especially urged (but see Atlanta v. Chattanooga Foundry & Pipe Works [C. C. A.] 127 F. 23, 64 L. R. A. 721), failed to point out lack of proof in support of a single essential allegation, but a careful inspection of the lengthy record filed discloses that it was impossible for them to have done so. The identical allegations which have already been held sufficient to state a cause of action have been proved so abundantly that we pass without delay to a consideration of the other phases of this appeal with only the additional observation that the decree of 1916 ran against all these defendants and under the Clayton Act (15 USCA § 16) was itself prima facie evidence of their violation of the law. The evidence introduced, far from overcoming the prima facie effect of the decree, strongly tended to support the plaintiffs' allegations.

As above stated, no violation of the decree of the District Court for the Northern District of Illinois entered in 1916 was *155 proved. Error is claimed in the refusal of the court to charge that "the evidence shows that there was no refusal by defendants to accept and post advertising posters for anybody subsequent to July, 1916, and the period subsequent to that date has no bearing on any of the issues in this case and should be dismissed from the minds of the jury." The part of this request relating to the tendency of the evidence as to nonviolation of the 1916 decree was in accordance with the fact, but this was simply part of a request which embodied unsound legal conclusions, and the court could disregard such a request entirely. Texas & Pacific Ry. Co. v. Humble, 181 U. S. 57, 21 S. Ct. 526, 45 L. Ed. 747; Miles v. Lavender (C. C. A.) 10 F.(2d) 450; American Surety Co. v. Blount County Bank (C. C. A.) 30 F.(2d) 882, 884. Whether the harmful effect to the plaintiffs of the illegal acts of the defendants committed before the date of the 1916 decree ended with the entry of that decree or not was primarily a question of fact, and, if there was evidence tending to show that the plaintiffs continued to suffer damages after the decree date because of the previous unlawful acts of the defendants, such damages were recoverable. There was such evidence. The plaintiffs had already lost much business because they were prevented by the defendants from getting their posters displayed. Some of their clients had left them; the confidence of former clients in plaintiffs' ability to get the defendants to accept their posters was not shown to have been restored by the stroke of the pen which signed the decree; the uncertainty as to the absolute finality of the decree in its future effect on the business was not dispelled at least until the appeal taken from it was dismissed six years later in 1922. The decree could not as a matter of law, and especially not in the face of evidence showing the contrary, be held to have done away with all continuing damage directly traceable to the defendants' former unlawful interference.

It is also claimed that, even if the defendants are guilty, plaintiff Rankin cannot recover because it is in pari delicto. This question was submitted to the jury under instructions to which no objection was made and which followed correctly the law of Eastman Kodak Co. v. Southern Photo Material Co., 273 U. S. 359, 377, 47 S. Ct. 400, 71 L. Ed. 684. The issue was decided by the jury against the defendants, and we think the jury amply justified in reaching the conclusion that this claim was not supported by the proof. The evidence contained nothing to alter the situation as it appeared in this respect when the opinion in Ramsay Co. v. Bill Posters' Association, supra, was handed down. We quote from the end of that opinion because what is there stated applies with equal force here. "We find no adequate support for the claim that plaintiffs were parties to the combination of which they now complain."

During the trial, the judge made certain remarks now said to constitute reversible error, but no exception to them was taken. No attempt has been made to point out wherein they were prejudicial and no plain error is disclosed which should be noticed of our own motion. Central Supply Co., Inc., v. Carter Clothing Corporation (C. C. A.) 35 F.(2d) 172.

In its proof of damages, Rankin was permitted, under objection and exception, to show by the testimony of its treasurer and by a compilation he had made, based on the net profits of the business in 1911 and from his knowledge of business conditions when free of the defendants' unlawful interference, what he considered would have been the normal increase of this plaintiff's business from year to year. He was permitted to estimate on this basis its probable yearly earnings from July, 1913, to June 30, 1918, and to explain how his figures were arrived at. The fact that this amount of the plaintiff's damages could not be expressed in exact figures did not make them speculative. There was no speculation as to the fact of actual damage. Its business had been seriously curtailed. The defendants had caused the damage, and cannot be permitted to escape liability because it is difficult for the plaintiff to express in terms of dollars the damages it has suffered. This evidence, while purely an estimate and introduced as such, was proof of a kind as definite and certain as the subject-matter admitted. It had to do with what was never actually earned because of the defendants' wrongdoing. The witness testified from his knowledge of the business history, made his calculations upon what appears to be a reasonable basis, and the defendants had ample opportunity by cross-examination or the offer of their own evidence on the subject to discredit him and show any fallacy in his reasoning or testimony. Whatever may be said of its weight, and that was entirely for the jury, we have no difficulty with its admissibility. Eastman Kodak Co. v. Southern Photo Material Co., supra, at page 379 of 273 U. S., 47 S. Ct. 400.

Because Ramsay did not introduce any estimate of probable future earnings, being *156 content to leave the matter on proof of earnings, expenses, and net profits before the defendants' unlawful acts, it is said that no damages warranting a recovery have been proved by that plaintiff. Thus we have in this same case, as it happens that two separate actions were tried and are now considered together, defendants taking the position in respect to one plaintiff that it was error to introduce evidence of estimated future earnings because it is too speculative, and the position in respect to the other plaintiff that it was fatal to a recovery not to do so. Had there been no evidence from which damages could be fixed by the jury, of course this plaintiff could not recover. But there was evidence. The financial history of the Ramsay business was in the case. Perhaps the jury was not as competent to analyze that evidence as some financial and business expert might have been, but it could draw its own reasonable conclusions from it. That is what a jury is to do anyway in arriving at the amount of damages in any case. The jury had the data before it, and was left to determine the damages from that in what may be called its raw state. Perhaps the testimony of some one competent to have estimated the business loss resulting from the defendants' acts would have helped, but it was not indispensable. See Straus v. Victor Talking Machine Co. (C. C. A.) 297 F. 791, 802, and Frey & Son v. Welch Grape Juice Co. (C. C. A.) 240 F. 114.

Rankin recovered as trebled damages $277,329.58, and Ramsay recovered as trebled damages $25,637.09. In the Rankin Case, an attorney's fee of $42,500 was allowed and in the Ramsay Case a fee of $7,500. Both these allowances are attacked as excessive. Testimony was introduced tending to show that $50,000 was a fair and reasonable valuation for the services rendered and the appellants introduced no evidence to the contrary, although counsel for them stated that "between $25,000 and $30,000 was the amount they should be awarded."

It is not easy to decide what is just and reasonable in a matter of this kind, and the judgment of the trial judge who considered the matter with full knowledge of the facts is not lightly to be set aside. No doubt the suggestion that the task of counsel was made easier by the government's prosecution which started in 1912 is correct. Yet a large amount of work and skill was necessary in conducting this litigation in its various phases up to the time the award of fees was made. Substantial judgments were obtained. The record before us contains 1,453 pages and shows to some extent what work was done and how it was performed before the cases came to this court. In view of all this, we can reach no other conclusion than that the trial judge acted within the bounds of sound discretion in making the allowances as he did. See Montague & Co. v. Lowry, 193 U. S. 38, 24 S. Ct. 307, 48 L. Ed. 608; and Straus v. Victor Talking Machine Co., supra, 297 F. at pages 805, 806.

The judgment in each case is affirmed.

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