Wright Root Beer Co. of New Orleans v. Dr. Pepper Co.

• Decision Date: 11 September 1969
• Docket Number: No. 26591.,26591.
• Citation: 414 F.2d 887
• Parties: WRIGHT ROOT BEER COMPANY OF NEW ORLEANS, Incorporated, Plaintiff-Appellee, v. DR. PEPPER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 887 (1969)

WRIGHT ROOT BEER COMPANY OF NEW ORLEANS, Incorporated, Plaintiff-Appellee, v. DR. PEPPER COMPANY, Defendant-Appellant.

No. 26591.

United States Court of Appeals Fifth Circuit.

July 30, 1969.

Rehearing Denied September 11, 1969.

Harold R. Ainsworth, New Orleans, La., B. Thomas McElroy, Dallas, Tex., for defendant-appellant; White, McElroy & White, Dallas, Tex., of counsel.

Charles M. Lanier, New Orleans, La., R. Boatner Howell, Jr., Baton Rouge, La., for plaintiff-appellee.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.

DYER, Circuit Judge:

In a lengthy trial, redolent with acrimonious debates of counsel and lay and lawyer witnesses,¹ the jury found that Dr. Pepper Company had reneged on its agreement to recognize Wright Root Beer as its Dr. Pepper bottler in New Orleans, Louisiana, and assessed Wright's damages at $150,000. From the judgment entered on the verdict Dr. Pepper appeals. We reverse.

Washington Ice-Royal Products, Inc., located in New Orleans, bottled and sold Wright Root Beer and Dr. Pepper, the latter under a written franchise agreement with Dr. Pepper Company. In the spring of 1963 Washington Ice was in financial difficulty. Evans Howell, president of Wright Root Beer Company of Baton Rouge, Louisiana, which bottled and sold Wright Root Beer in that territory, and his brother Boatner, who was counsel for both that company and the plaintiff at trial, purchased Washington Ice on April 4, 1963, through negotiations with Frank Herman, its president.

The following day, April 5, 1963, a meeting was held in New Orleans between the Howells and Kirby, manager of Dr. Pepper's franchise department. Herman and others were also present. The Howells maintained that Kirby promised them a franchise and that he was held out by Dr. Pepper Company with apparent authority to do so. Dr. Pepper contrarily maintained that its manager made no such promise, that the terms and conditions of a franchise agreement were never discussed and that, in any event, Kirby had no real or apparent authority to grant a franchise because this was exclusively the province of the company's franchise committee.

The Howells formed Wright Root Beer Company of New Orleans, Louisiana, and took over the operation of Washington Ice on April 11, 1963. On May 13, 1963, Dr. Pepper Company notified Wright that the New Orleans franchise had been granted to Canada Dry and that Wright could no longer bottle and sell Dr. Pepper in the New Orleans market.

By answers to special interrogatories the jury found that Wright and Dr. Pepper had entered into a contract which was breached by Dr. Pepper with resulting damages to Wright of $150,000. Judgment was entered with interest added from the date of judicial demand.

Fourteen specifications of error are urged upon us by Dr. Pepper, two of which we consider vital and to require reversal.

First we consider the trial court's instructions concerning the weight to be accorded a deceased witness' deposition.

Frank Herman, the President of Washington Ice, was an important witness whose testimony was crucial to Dr. Pepper's case. His deposition was taken by Dr. Pepper on notice to Wright. Wright's counsel, Boatner Howell, was present and cross-examined Herman, although at the trial Howell complained that he did not extend himself on cross-examination because it was a discovery deposition. Herman's deposition was generally to the effect that the franchise given by Dr. Pepper to Washington Ice could not be transferred; that their franchise would have to be cancelled and then Dr. Pepper would have to decide on subsequent action; that at the April 5, 1967, meeting Kirby said that whoever purchased the business would have to be approved by the Company's franchise committee; that Herman knew that approval of a company had to be accomplished by the franchise committee; and that Kirby had no authority to act for the committee.

Between the time of the deposition and the time of trial Herman died. At the trial Dr. Pepper offered the deposition in evidence.

On several occasions the trial judge instructed the jury that the deposition of Herman was conducted differently than questioning a witness in the courtroom and that the jury could give it less weight and credence than the jury would give the testimony of live witnesses.

Initially the court told the jury:

Depositions are not conducted along the stricter lines of questioning a witness in a courtroom. However, in view of the death of Mr. Herman, who would be a material witness to this matter, but due to his death he is unable * * * the Court is going to allow the use of his deposition, ultimately, to be placed in evidence and read to the jury. If the parties desire to, as I assume they are going to desire it, therefore, when the deposition is used, the facts are taken for discovery purposes, the fact the man is now deceased, the fact that it is conducted along less rigid lines than questioning would be conducted in a courtroom should be taken into consideration by you ladies and gentlemen of the jury in applying what weight you want to give to the deposition of Mr. Frank Herman, who is now deceased.

It may be that because of being a deposition for discovery and not strictly in accordance with the questioning that usually takes place in the courtroom, you may want to give it less weight and less credence than you would if the man were living today and able to personally testify.² (Emphasis supplied.)

Subsequently, when Dr. Pepper objected to the court's instruction concerning the Herman deposition, the court said:

I think it was proper to point out to the jury all of the circumstances that might be attended at the taking of a deposition for discovery purposes, versus a deposition for perpetuation of testimony. Even with the presence of opposing counsel, so forth, certainly at a deposition for discovery, it\'s not unusual that you would not go into an in depth cross-examination that you would, where you are going to perpetuate the testimony. I think the jury was sufficiently charged on the point. I may not have mentioned specifically, I cannot remember, now, that definitely counsel for both parties were present. I thought I did mention it, I will mention that.³ (Emphasis supplied.)

Later, in connection with the Herman deposition and that of Parker, another deceased witness offered by Dr. Pepper, the Court said:

Even though it is a deposition for discovery and even though the depositions were not taken under the strict rules of evidence that would be conducted in the courtroom, in view of the deaths of these two persons, the Court feels that at least they would be further information for the jury in trying to arrive at a decision in this case. However, due to the fact that they are not conducted normally with the rights of all and full and complete cross-examination, you have the right to give, therefore, what weight you want to give to these depositions. But that doesn\'t mean you should give them any weight. What weight you give them is up to you members of the jury.⁴ (Emphasis supplied.)

Finally, the court again re-emphasized its prior rulings when Dr. Pepper offered the deceased witness Parker's deposition:

As explained to the jury yesterday, these witnesses\' depositions are being read because of the fact these parties are now deceased. These depositions were taken originally for discovery purposes, not to perpetuate testimony for use at the trial. However, because of the untimely deaths, the Court rules these depositions should be read to the jury and can be considered by you as evidence. The only thing that you will give is what weight you think should be given to the testimony because of the unavailability of the witnesses for a full and complete cross-examination by the opposing side.⁵ (Emphasis supplied.)

The instructions given to the jury by the trial court were patently erroneous. Under Rule 26(d) (3), F.R.Civ.P., as a matter of right, a party may introduce the deposition of a deceased witness with no strings attached. The trial court has no discretion to conditionally admit such a deposition. Here the court, acknowledging that Herman was a material witness, nevertheless told the jury that his testimony was taken "not strictly in accordance with the questioning that usually takes place in the courtroom," and that even though opposing counsel was present the questioning was "not taken under the strict rules of evidence," and "not conducted normally with the rights of all and full and complete cross-examination." The court then concluded: "But that doesn't mean you should give them the depositions any weight;" the weight to be given them was up to the jury.

Opposing counsel was admittedly present at the depositions and did cross-examine the deponents. Whether the cross was extended or limited was left to counsel's judgment, and to the strategy that is inherent in a trial lawyer's decision. The unexpected is to be expected at the trial of cases, including the...