Baughman v. Cooper-Jarrett, Inc.

• Decision Date: 18 February 1976
• Docket Number: No. 75--1536,Nos. 75--1536,75--1537,INC,No. 75--1537,COOPER-JARRET,75--1536,s. 75--1536
• Citation: 530 F.2d 529
• Parties: 1976-1 Trade Cases 60,746, 1 Fed. R. Evid. Serv. 1111 Gordon BAUGHMAN, Appellant in, v., et al. Appeal of WILSON FREIGHT FORWARDING COMPANY a/k/a Wilson Freight Company, in
• Court: U.S. Court of Appeals — Third Circuit

Page 529

530 F.2d 529

1976-1 Trade Cases 60,746, 1 Fed. R. Evid. Serv. 1111

Gordon BAUGHMAN, Appellant in No. 75--1536, v. COOPER-JARRETT, INC., et al.

Appeal of WILSON FREIGHT FORWARDING COMPANY a/k/a Wilson

Freight Company, in No. 75--1537.

Nos. 75--1536, 75--1537.

United States Court of Appeals, Third Circuit.

Argued Dec. 10, 1975.

Decided Feb. 18, 1976.

John W. McIlvaine, Monongahela, Pa., for Gordon Baughman.

Richard L. Rosenzweig, Rosenzweig & Rosenzweig, Pittsburgh, Pa., Arthur E. Siegel, Cincinnati, Ohio, for Wilson Freight Co.

Before SEITZ, Chief Judge, and GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

In these cross appeals the plaintiff Gordon Baughman, appellant in No. 75--1536, contends that the district court erred in reducing a judgment in his favor from $75,000 to $25,200, and the defendant, Wilson Freight Forwarding Company (Wilson), cross-appellant in No. 75--1537, contends that the district court erred in denying its motion for judgment n.o.v. ¹ We remand for a modification of the judgment.

I. PROCEEDINGS BELOW

Baughman, an over-the-road truck driver, brought suit against his former employer, Cooper-Jarrett, Inc., and four other trucking companies including Wilson, charging that the defendants conspired to blacklist him from obtaining work in the trucking industry. Relief was predicated on the Sherman Act § 1 and § 2, 15 U.S.C. §§ 1, 2, and on a pendent Pennsylvania law claim for tortious interference with prospective contractual relationships. Trial of that action in January, 1974 resulted in a directed verdict in favor of all defendants on the Sherman Act § 2 claim, in favor of all defendants except Cooper-Jarrett on the pendent state law claim, and in favor of one defendant on all claims. The jury rendered a verdict against three of the remaining defendants on the Sherman Act § 1 claim and against Cooper-Jarrett on the pendent state law claim. It absolved one defendant of all liability. On the defendants' motion for judgment n.o.v. and for a new trial, the court granted a new trial.

The second trial commenced on October 9, 1974, against the three remaining defendants. After the jury was sworn but prior to plaintiff's opening statement two of the defendants, Cooper-Jarrett and Matlack, Inc., entered into a settlement agreement whereby they paid Baughman a total of $60,000 in compromise of the Sherman Act § 1 claim in return for a joint tortfeasor release. Baughman reserved all his rights against Wilson. The case went to trial against Wilson and the jury returned a verdict of $25,000 in Baughman's favor. Trebled pursuant to 15 U.S.C. § 15, the resulting judgment was $75,000.

Wilson moved for judgment n.o.v., and alternatively to reduce the judgment by crediting against it the $60,000 obtained in settlement from Cooper-Jarrett and Matlack. The court denied the motion for judgment n.o.v., but reduced the judgment to $25,200. ²

II. WILSON'S LIABILITY CONTENTIONS

Wilson makes two arguments in support of its contention that it is entitled to a judgment n.o.v. The first is that the court in a pre-trial ruling erred in failing to grant its motion for summary judgment because Baughman at that time produced no evidence suggesting a factual dispute existed over whether Wilson was a member of the conspiracy against him. This argument need not detain us. Wilson refers us to no authority for the proposition that an appellate court will after a jury trial and a verdict review an interlocutory order refusing to grant a motion for summary judgment. No reason in logic or policy suggests that we should do so. Indeed, the seventh amendment might impose an obstacle where, as here, there is sufficient evidence in the record for the case to have gone to the jury.

The second argument is that there is no properly admitted evidence showing that Wilson was a participant in the conspiracy to blacklist Baughman and no properly admitted evidence of the conspiracy.

The only evidence tending to connect Wilson to the blacklisting conspiracy was the testimony of Baughman respecting a Wilson employee named Umberger. If his testimony was either improperly admitted or insufficient, then the remaining evidence, consisting for the most part of admissions of alleged co-conspirators, was not admissible against Wilson. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941).

Umberger was the Relay Supervisor or Local Manager of Wilson's Stanton freight terminal. Although employment applications were forwarded to Wilson's headquarters in Cincinnati before a hiring decision was made, Umberger screened out the majority of applications and communicated to applicants the hiring decision and the reasons therefor. Baughman testified over objection (42a):

Q. Go ahead. Tell the jury what Mr. Umberger, the terminal manager, told you and Mr. Fait about your application.

A. He said at that time that he was sorry he could not use me. He said the word was out from Cooper Jarrett that I was blacklisted, that he could not hire me.

Baughman had previously applied for a job with Wilson, and was asked to check back in ten days. The quoted testimony referred to a conversation which took place when he did so. If Umberger could make admissions on behalf of Wilson, the conversation is evidence that Wilson was acting in concert with the other alleged conspirators in enforcing a blacklist.

Wilson urges that Umberger had no authority to make such an admission on its behalf. Whether an employee has the authority of an agent to make admissions on behalf of his employer is determined by the law of agency. See Fed.R.Evid. 801(d)(2)(C) and Notes of Advisory Committee; IV J. Wigmore, Evidence § 1078, at 162 (Chadbourn ed. 1972); see generally Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263 (3d Cir. 1969). The district court found as a fact that Umberger had express or at least implied authority to inform Baughman of the reasons why Wilson had rejected his application for employment. Thus giving as a reason the existence of the blacklist is a statement concerning the subject matter about which Umberger was authorized to speak. See Restatement (Second) of Agency § 286 (1958); Dudding v. Thorpe, 47 F.R.D. 565, 571 (W.D.Pa.1969). We conclude that Baughman's testimony about Umberger's statement was properly admitted, and thus that there was evidence of Wilson's participation in the blacklisting conspiracy sufficient to permit use against it of the admissions of co-conspirators made in furtherance of the conspiracy.

Wilson urges that even if there was evidence connecting it with the conspiracy the court erred in admitting over objection evidence of a statement by Clarence Frankel, a Cooper-Jarrett Vice President (32a):

'He (Baughman) will not drive any of Cooper-Jarrett's trucks ever again nor will he drive for any other freight company.'

The district court ruled that the statement fell within the state of mind exception to the hearsay rule. See Fed.R.Evid. 803(3); Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892). Wilson concedes that the statement was admissible to show Frankel's then state of mind, but urges that it was error to permit use of the statement as evidence of its participation in the conspiracy. Evidence that Frankel intended never the let Baughman drive for Cooper-Jarrett is only slightly probative, if at all, of the conspiracy question. Evidence that he intended to preclude Baughman from driving for others, however, while probative of Frankel's state of mind, is hardly reliable evidence of the conduct of third parties whose participation would be required to make Frankel's expressed state of mind anything more than a hope. See Maguire, The Hillmon Case, Thirty-Three Years After, 38 Harv.L.Rev. 709, 717 (1925).

But the record contains other evidence of the existence of a conspiracy, and of the participation in it of Marlack and Wilson. That evidence included the statements made by Umberger, referred to above, and statements made by Matlack's terminal manager. Certainly Frankel's statement was admissible to show that Cooper-Jarrett intended to enlist the cooperation of others. The preferred course would have been to give a limiting instruction that Frankel's statement was not admissible to show the participation of Wilson or Matlack in the conspiracy. Cf. United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758, 762 n. 7 (1973). But since the evidence was admissible and against Wilson as proof of conspiracy merely cumulative, failure to give a limiting instruction was harmless error. ³

We conclude that there is no basis for setting aside the jury's liability determination against Wilson.

III. THE REDUCTION OF THE JUDGMENT

Baughman does not dispute the rule that a plaintiff who has recovered an item of damage from one co-conspirator may not again recover the same item of damage from another conspirator. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 348, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Nor does either Baughman or Wilson dispute that the set-off is made against the trebled damage award, not merely against the compensatory amount determined by the jury. Flintkote Co. v. Lysfjord, 246 F.2d 368, 397--98 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957). Both sides, however, contend that the district court erred in computing the amount of the set-off. Wilson urges that $60,000 should have been deducted from $75,000 and judgment entered for $15,000 at most. Baughman argues that the set-off of $49,800 which the district court allowed was too high. This disagreement arises out of a trial ruling to which no objection was made.

At the second trial the court at Wilson's request, and without objection from Baughman, instructed the jury to award damages only for the period after which Wilson joined the conspiracy. ⁴ There was evidence that a conspiracy existed as early as ...