292 F.2d 794 (7th Cir. 1961), 13160, Parmelee Transp. Co. v. Keeshin

Docket Nº:13160.
Citation:292 F.2d 794
Party Name:PARMELEE TRANSPORTATION COMPANY, a Delaware corporation, Plaintiff-Appellant, v. John L. KEESHIN, Railroad Transfer Service, Inc., Hugh W. Cross, the New YorkCentral Railroad Company, Howard E. Simpson, Paul E. Feucht, Wayne A. Johnston,Fred G. Gurley, the Atchison, Topeka and Santa Fe Railway Company, theBaltimore andOhio Railroad Company, Chicago
Case Date:June 30, 1961
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 794

292 F.2d 794 (7th Cir. 1961)

PARMELEE TRANSPORTATION COMPANY, a Delaware corporation, Plaintiff-Appellant,

v.

John L. KEESHIN, Railroad Transfer Service, Inc., Hugh W. Cross, the New YorkCentral Railroad Company, Howard E. Simpson, Paul E. Feucht, Wayne A. Johnston,Fred G. Gurley, the Atchison, Topeka and Santa Fe Railway Company, theBaltimore andOhio Railroad Company, Chicago & Northwestern Railway Company, Illinois CentralRailroad Company and the Pennsylvania Railroad Company, Defendants-Appellees.

No. 13160.

United States Court of Appeals, Seventh Circuit.

June 30, 1961

Page 795

Thomas C. McConnell, Lee A. Freeman, Chicago, Ill., Herbert B. Lazarus, New York City, Francis J. McConnell, John Borst, Jr., John Paul Stevens, Chicago, Ill., for plaintiff-appellant.

Albert E. Jenner, Jr., Philip .w. Tone, Chicago, Ill., Thompson, Raymond, Mayer, Jenner & Bloomstein, Chicago, Ill., of counsel, for certain appellee Railroads and for appellee Railroad Presidents.

Marvin A. Jersild, Martin J. Keating, Chicago, Ill., for appellee, New York Cent. R. Co.

Albert J. Meserow, Amos M. Mathews, Chicago, Ill., for appellees John L. Keeshin and Railroad Transfer Service, Inc.

Joseph C. Owens, Chicago, Ill., for appellee Hugh W. Cross.

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Parmelee Transportation Company, a Delaware corporation, plaintiff, has appealed from a judgment of the district court in favor of John L. Keeshin, Railroad Transfer Service, Inc., Hugh W. Cross, the New York Central Railroad Company, Howard E. Simpson, Paul E. Feucht, Wayne A. Johnston, Fred G. Gurley, the Atchison, Topeka and Santa Fe Railway Company, the Baltimore and Ohio Railroad Company, Chicago & Northwestern Railway Company, Illinois Central Railroad Company and the Pennsylvania Railroad Company, defendants. Plaintiff's complaint filed February 16, 1956 alleges a combination and conspiracy in restraint of trade in violation of Sections §§ 1 and 2 of the Sherman Act (15 U.S.C.A. 1 and 2), and prays for treble damages and injunctive relief. The judgment bases a dismissal of the action on, first, a jury's verdict that the public has not been injured, and, second, on the alternative ground that plaintiff failed to establish a violation of § 1 or § 2 of the Sherman Act or any other provision of the antitrust laws and did not state a claim thereunder. 1

Plaintiff, prior to September 30, 1955, was engaged in the business of transferring passengers and their baggage between railroad terminal stations in Chicago and the pickup and delivery of baggage within the Chicago metropolitan area to and from railroad stations. 2

The defendants are (a) John L Keeshin, and his company, Railroad Transfer Service, Inc., herein called Transfer, (b) Hugh W. Cross, former chairman of the Interstate Commerce Commission, and

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(c) six railroads, constituting a committee chosen by twenty-one railroads having passenger terminals in Chicago and the presidents of four of these six railroads. 3

The complaint alleges the matters referred to in the following two paragraphs.

Since prior to March 15, 1955, the defendants have been engaged in a conspiracy to eliminate all competition for contracts or arrangements with the Chicago railroads for the rendition of Chicago station transfer service and baggage pickup and delivery service.

Contrary to his public obligations and acting on behalf of Keeshin, Cross induced the defendant railroad presidents and defendant railroads to foreclose any competition for the transfer business, and to cause the twenty-one railroads comprising the entire market for such services to do business exclusively with a new company to be formed by Keeshin, regardless of whether the cost and terms proposed by Keeshin were less favorable than could be obtained as a result of free competition. Keeshin secured Cross' improper intervention by promises of a valuable consideration. Cross was able to induce the railroads to join the conspiracy by using his position as a member of the Interstate Commerce Commission. The railroads accepted the proposal in order to influence Cross to give favorable consideration to important railroad matters pending before the Commission. As a result, the railroads entered into an exclusive five-year contract with Transfer. The contract, by its terms, foreclosed competition for the Chicago transfer business.

Soon after the suit was commenced, certain defendants filed a motion to dismiss, on the ground that the complaint failed to state a claim upon which relief could be granted and specifically, that there were not sufficient facts alleged to establish public injury. The late Judge Philip L. Sullivan overruled the motions, and defendants filed answers.

Upon the reassignment of the case to Judge Miner, an order was entered separating the issue of public injury for trial, over the objections of both sides.

After the case proceeded to trial, plaintiff's counsel made offers of proof of conspiracy 'under our complaint', because, he explained, he believed it necessary in case of an appeal. Subsequently the court permitted these offers of proof to be made but eventually the offers were, according to plaintiff's brief, 'stricken from the record by the court.'

At the close of plaintiff's case, Judge Miner held that, even if there was a verdict of public injury, 'this case does not belong in the family of anti-trust cases under any conditions, from the entire record before me.' 4 He made it clear that he was disposing of the case upon the allegations of the complaint and all evidence offered by plaintiff and received upon the trial, as well as the facts stated in all offers of proof made by plaintiff, regardless of whether he had ruled adversely to any of said offers. He announced that, viewing said evidence and offers of proof in the light most favorable to plaintiff, and making all reasonable inferences therefrom in its favor, he determined that plaintiff had failed to establish a violation of § 1 or § 2 of the Sherman Act or of any other provisions of the antitrust laws, and that the complaint, as amended, relating to issues other than that of the verdict of the jury, 'do not state a claim upon which relief can be granted under Section 1 or Section 2 of the Sherman Act, or any other provision of the antitrust laws; * * *.'

The judgment from which appeal has been taken was for defendants on the verdict, ordered and adjudged that plaintiff

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take nothing by its action, and ordered and decreed that the complaint, as amended, insofar as it sounded in equity, be dismissed for want of equity and judgment be entered for defendants on the equitable issues.

1. Plaintiff contends that Judge Miner erred in overruling Judge Sullivan's decision, D.C., 144 F.Supp. 480, denying defendant's motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. Plaintiff's counsel speak of Judge Sullivan's opinion as 'the law of the case'. A reference to that opinion which was filed in 1956 makes it clear that Judge Sullivan considered only the 'complaint on its face'. The action of Judge Miner was the entry of a summary judgment and involved not merely the complaint 5 which was before Judge Sullivan, but also offers of proof and evidence submitted only to Judge Miner.

Regardless of the impact of any law-of-the-case rule, our duty is to determine whether the judgment of Judge Miner is correct. In fact, we should sustain any judgment from which an appeal has been taken if it is supported by the record and the law, regardless of whether the lower court has ruled erroneously or has ruled at all on that ground. Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 1 L.Ed.2d 314. Obviously we cannot be expected to reverse a correct decision by one district Judge simply because we find that it is contrary to a prior ruling by another district judge in the same case, i.e. contrary to the 'law of the case'.

2. This judgment, being based upon the complaint and plaintiff's offered evidence, did not involve a finding of any genuine issue as to any material fact. It is a summary judgment. Rule 56(b) and (c), 28 U.S.C.A. Each answer filed by the defendants asks for dismissal of the complaint. In Repsold v. New York Life Insurance Company, 7 Cir., 216 F.2d 479, 483, we said:

'The court is authorized under the plain provisions of this rule to summarily determine whether or not a bona fide issue of fact exists between the parties to the action. A determination by the court that such issue is presented makes the rule inoperative. On the other hand, if the pleadings, and proof in the form of depositions, affidavits and admissions on file, disclose that no real cause of action or defense exists, the court may determine that there is no issue to be tried by a jury and may grant a summary judgment.

'Rule 56 does not provide any method for exactly determining the presence of an issue of fact, and so each case depends upon the facts peculiar to it. Speaking in general terms, the court is not authorized under the rule to try issues of fact but it has the power to penetrate the allegations of fact in the pleadings and look to any evidential source to determine whether there is an issue of fact to be tried.'

3. Plaintiff's complaint alleges that it was ready, willing and able, and had offered to continue to engage in the station transfer and pickup and delivery business on terms and conditions favorable to the railroads and to the traveling public, but had been prevented from so doing from and after September 30, 1955 by the conspiracy described. It also alleges that the

'* * * services performed by Transfer pursuant to said contract have been and are more costly to said railroads and less extensive and valuable than the services previously performed by plaintiff and which plaintiff had offered to...

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