Albrecht v. Herald Company

• Decision Date: 28 December 1971
• Docket Number: 71-1041.,No. 71-1017,71-1017
• Citation: 452 F.2d 124
• Parties: Lester J. ALBRECHT, Appellee, v. The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Appellant. The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Appellee, v. Lester J. ALBRECHT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.2d 124 (1971)

Lester J. ALBRECHT, Appellee, v. The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Appellant.

The HERALD COMPANY, a Corporation, d/b/a Globe-Democrat Publishing Company, Appellee, v. Lester J. ALBRECHT, Appellant.

Nos. 71-1017, 71-1041.

United States Court of Appeals, Eighth Circuit.

November 17, 1971.

Rehearing and Rehearing Denied December 28, 1971.

Mortimer A. Rosecan, Rosecan & Popkin, St. Louis, Mo., and Gray L. Dorsey, Chesterfield, Mo., for Lester J. Albrecht.

Lon Hocker, St. Louis, Mo., Tobias J. Bermant, New York City, for appellee, cross-respondent, Globe-Democrat; Hocker, Goodwin, Koenig, Gibbons & Fehlig, St. Louis, Mo., Sabin, Bermant & Blau, New York City, of counsel.

Before VOGEL, Senior Circuit Judge, and GIBSON and LAY, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 28, 1971.

GIBSON, Circuit Judge.

This is the third appearance of this antitrust controversy before us. The plaintiff, while a contract carrier for the defendant, a newspaper publisher in St. Louis, Missouri, hereafter referred to as Globe-Democrat or defendant, persisted in charging the subscribers on his exclusive paper route more than the suggested retail price set by the publisher. The Globe-Democrat upon receiving complaints from some of the subscribers tried to induce plaintiff to adhere to the suggested maximum retail price. Although Globe-Democrat had the right under its carrier contract to decline selling papers to plaintiff upon refusal of plaintiff to adhere to the suggested maximum,¹ it first tried oral persuasion and failing in that it attempted to force compliance by competing with the plaintiff on his own route and actively soliciting customers of the plaintiff. As a result of defendant's actions, plaintiff was finally forced to sell his route for $12,000. A jury in the original action found defendant innocent of violating Section 1 of the Sherman Act, 15 U.S.C. § 1. We affirmed on appeal in Albrecht v. Herald Co., 367 F.2d 517 (8th Cir. 1966).

The Supreme Court, after granting certiorari, reversed in a 7-2 decision, holding that the undisputed facts showed a combination to fix a maximum resale price, which as a matter of law was per se illegal under United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and remanded the case for further proceedings consistent with that opinion. Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed. 2d 998 (1968).

The factual details are reported in the above cases and will not be repeated here except where necessary to a discussion of the issues presented on retrial.

In the interim the defendant filed a complaint seeking to convene a three-judge district court to determine the issues of the alleged unconstitutionality of the treble damage provision of 15 U.S.C. § 15. Senior District Judge Duncan dismissed that complaint on the basis that it lacked substantiality. Herald Co. v. Harper, 293 F.Supp. 1101 (E.D.Mo.1968). Upon appeal, we affirmed. Herald Co. v. Harper, 410 F.2d 125 (8th Cir. 1969). The matter then proceeded to trial before Chief Judge Meredith of the Eastern District of Missouri on the issue of damages. In addition to the issue of damages, defendant in the District Court again sought to invoke the protection of the Fifth Amendment against double jeopardy on the ground that the verdict of the jury in the first trial finding no antitrust violation protected it against another proceeding to assess treble damages for the same offense. This identical issue had been decided adversely to defendant in Herald Co. v. Harper, supra.

The damage issue was submitted in three parts : (1) plaintiff's damage prior to sale, consisting of profits lost in the operation of the business by reason of Globe-Democrat's competition ; (2) the difference between the fair market value of plaintiff's business (with all of his customers intact) at the time of the sale and the actual sale price received ; and, (3) loss of future profits following the forced sale. The Court directed the jury to find in favor of plaintiff on the first two items and permitted a finding on item three upon a determination of certain hypotheses relating to the conduct of the defendant. The jury returned a verdict for plaintiff on all three items in the respective amounts of $2,000, $12,000 and $57,000.

The District Court in considering a motion for a new trial and for judgment n. o. v. reduced the award on loss of profits prior to the sale to $1313, allowed the award of $12,000 representing the difference between the amount plaintiff received from the sale of the route and the fair market value of the route as reconstituted with all of the customers taken away by defendant, and reduced the loss of future profits award to $14,768. Judgment was entered for treble damages, plus attorneys' fees of $50,000. Albrecht v. Herald Co., 321 F.Supp. 99 (D.C. 1970). Both parties have appealed.

There is no serious disagreement on item one. The damages on item two are not contested by the defendant, and this sum appears to be the maximum that could have been allowed by the jury on the evidence adduced in the case.² The defendant contends, however, that the third item of damages, loss of future profits, was duplicitous of the second item of damages awarding the fair market value of the reconstituted route. The plaintiff argues that not only is he entitled to loss of future profits as found by the trial court, but that the jury verdict of $57,000 on this item of damages should be reinstated.

At the outset plaintiff challenges the jurisdiction of the District Court to enter a judgment n. o. v. because the defendant did not file a motion for a directed verdict at the close of all the evidence, citing the general rule set forth in Godwin v. Brown, 249 F.2d 356, 363 (8th Cir. 1957), holding "Only a party who has first made a motion for a directed verdict may, under Rule 50(b), Federal Rules of Civil Procedure, move for a judgment notwithstanding the verdict." To the same effect are many cases cited in 2B Barron & Holtzoff, Federal Practice and Procedure, § 1079, for the proposition that a motion for judgment n. o. v. may not be entertained unless a motion for a directed verdict was made at the close of all the evidence. This is the general rule but that rule is not applicable to this situation.

In the first place, the trial judge asked the parties for their written objections to his proposed charge which in the posture of this case was directed solely to the issue of damages. The defendant objected to the charge on the basis that it did permit a double recovery, compensation for the full fair market value of the reconstituted route and prospective future earnings. Memorandums were submitted on this issue and, while defendant's objections were not sustained, the trial judge recognized clearly the issue of duplicity in damages in his memorandum granting in part the n. o. v. motions, where he states, "It may very well be argued that all of item number 3 should be deleted for the reason that it is included in the sale price of the paper route * * *." 321 F.Supp. at 101.

Secondly, the remand from the Supreme Court finding for the plaintiff on liability as a matter of law left only the issue of damages. The defendant could no longer properly contest the issue of liability, nor as a practical matter could it contest the fact that some damages would have to be found by the jury. Thus a motion for directed verdict at the close of all the evidence would not only have been a useless act but would have been contumacious of the Supreme Court's remand and our remand in connection therewith. We find no merit in plaintiff's contention on this procedural issue. The question of duplicate damages was clearly presented to the trial court.

Defendant contends that an award for loss of future profits in addition to an award allowing the full value of plaintiff's business reconstituted with the full complement of 1200 customers and viewed as a going concern constituted a double recovery which when trebled would be a six-fold award of actual damages. Defendant's chief reliance, aside from the seeming logic of its contention, rests on the cases of Standard Oil Co. v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958) ; Simpson v. Union Oil Co., 411 F.2d 897 (9th Cir.), cert. denied in part and granted in part and judgment reversed, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969) ; Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (1st Cir. 1969).

The plaintiff predicates his claim for the item three damage on Twentieth Century Fox-Film Corp. v. Brookside Theater Corp., 194 F.2d 846 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952) ; Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir. 1963) ; Atlas Building Products v. Diamond Block & Gravel Co., 269 F.2d 950 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960) ; Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964).

The pertinent part of 15 U.S.C. § 15 reads :

"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * * and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney\'s fee."

The damages referred to in the statute should be construed in the ordinary common law context as compensating plaintiff in full for the preventable and established loss sustained by reason of tortious or proscribed acts. The general rule in property damage cases, as stated in Gleason v. Title Guarantee Company, 300 F.2d 813, 815 (5th Cir. 1962), is "* * * that the tort or contract liability of a party is limited to the difference in value between what the plaintiff's property is worth and what it would...