Polaroid Corporation v. Schuster's Express, Inc., 73-1195.

• Decision Date: 17 September 1973
• Docket Number: No. 73-1195.,73-1195.
• Citation: 484 F.2d 349
• Parties: POLAROID CORPORATION, Plaintiff-Appellee, v. SCHUSTER'S EXPRESS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

484 F.2d 349 (1973)

POLAROID CORPORATION, Plaintiff-Appellee, v. SCHUSTER'S EXPRESS, INC., Defendant-Appellant.

No. 73-1195.

United States Court of Appeals, First Circuit.

Submitted on briefs August 2, 1973.

Decided September 17, 1973.

Charles E. Holly and Weston, Patrick, Willard & Redding, Boston, Mass., on brief for appellant.

Edwin R. Trafton, and Robert T. Oken, Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

Polaroid Corporation has brought this action against Schuster's Express, Inc., a common carrier, under the provisions of the Interstate Commerce Act, 49 U.S. C. § 20(11)¹ claiming damages arising from the hijacking of a shipment of photographic equipment entrusted to the defendant at Needham Heights, Massachusetts, on October 6, 1969, for delivery to a Polaroid warehouse at Paramus, New Jersey on October 7, 1969. Defendant appeals the granting of summary judgment on the issue of damages and the trial court's finding that Polaroid Corporation was entitled to its dealer price, rather than merely its cost of manufacturing the lost equipment. For the reasons stated below, we affirm.

Consideration of the summary judgment issue requires a somewhat detailed description of the controversy's procedural development. Plaintiff filed a claim for damages, totaling $134,490.95; this figure represents the dealer price, in case quantity, uniformly charged to all dealers purchasing from Polaroid. Following the defendant's response to plaintiff's request for admissions, plaintiff moved for summary judgment on the question of liability, pursuant to F. R.Civ.P. 56, and requested the court to ascertain what material facts on the damage issue were controverted and to order a hearing for assessment of damages. The court, faced with the defendant's admitted liability for "full actual cost", found the only disputed issue to be the measure of damages.

Plaintiff supported its claim for $134,490.95 by seven evidentiary affidavits, sworn to by its Group Controller for Operations. They itemized the dealer price value of each item for the month in which the goods were hijacked and divided the total price into cost and profit components. Defendant's reply brief contended that plaintiff was not entitled to the dealer price and questioned the accuracy of the cost component figure. It did not claim that the dealer prices were inaccurate nor that they did not represent the market value of the hijacked goods at destination. Upon the court's request, Polaroid supplied two additional affidavits respecting costs saved by the non-delivery and the facts supporting the assumption that all the items in the stolen shipment would have been sold within a relatively short period.

The defendant in no way contested these affidavits, either by introducing conflicting evidentiary affidavits as required by Rule 56(e) or by form of affidavit, pursuant to Rule 56(f), explaining why facts necessary to justify its opposition to summary judgment could not be supplied. Neither did defendant take advantage of discovery procedures to ascertain information solely within the knowledge of plaintiff nor did defendant request a continuance for discovery techniques.

Supported by plaintiff's affidavits the court found that the goods were in great demand, nothing remaining "but to unload the goods at the distribution center and to stock and take orders for them." Since the manufacturer had earned its profit prior to the theft, the court awarded damages in the amount of $133,989.30, deducting the uncontested cost savings from the uncontested dealer price.

Defendant's assertion that the trial court erred in not allowing the damages to be computed by a jury is without merit. If costs and not market value were the measure, the defendant might well have been entitled to a jury trial. However, the validity of dealer prices as a measure of damages is clearly a question of law for the court to decide.

DeCato v. Travellers Life Insurance Co., 379 F.2d 796 (1st Cir. 1967), upon which the defendant relies, rejected summary judgment in a dispute over the accuracy of figures based upon destroyed records, a fact pattern quite distinct from the instant case. Indeed, that case noted: "Just because a party chooses to litigate does not necessarily mean that there is a dispute as to damages." DeCato, supra, 379 F.2d at 799.

Defendant contends that it was not obliged to refute plaintiff's detailed proof of the immediate sales value of the hijacked equipment, relying upon Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a § 1983 conspiracy case in which the Court reversed summary judgment even though the opposing party had not come forward with independent evidence. However, the Court based its holding upon the fact that the moving party had failed to carry its burden of showing the absence of any genuine issue of fact; once this initial burden is met the Court stated quite specifically that to avoid conceding facts alleged by the moving party, the opposing party would have to come forward with an affidavit either under Rule 56(e) or (f). Adickes, supra, 398 U.S. at 159-160, 90 S.Ct. 1598.

The Advisory Committee Note of 1963 on subdivision (e) clarifies this point:

"Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present

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