414 F.2d 887 (5th Cir. 1969), 26591, Wright Root Beer Co. of New Orleans v. Dr. Pepper Co.

Docket Nº:26591.
Citation:414 F.2d 887
Party Name:WRIGHT ROOT BEER COMPANY OF NEW ORLEANS, Incorporated, Plaintiff-Appellee, v. DR. PEPPER COMPANY, Defendant-Appellant.
Case Date:July 30, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 887

414 F.2d 887 (5th Cir. 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 Sept. 11, 1969.

Page 888

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

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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...

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