Engelhardt v. Bell & Howell Co.

• Decision Date: 30 January 1964
• Docket Number: No. 17311.,17311.
• Citation: 327 F.2d 30
• Parties: Fred ENGELHARDT, d/b/a Engelhardt's Camera Store, Appellant, v. BELL & HOWELL CO., a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

327 F.2d 30 (1964)

Fred ENGELHARDT, d/b/a Engelhardt's Camera Store, Appellant, v.BELL & HOWELL CO., a Corporation, Appellee.

No. 17311.

United States Court of Appeals Eighth Circuit.

January 30, 1964.

Rexford H. Caruthers, St. Louis, Mo., Gerhard J. Petzall, H. Tracy Huston, St. Louis, Mo., and Counsel — Guilfoil, Caruthers, Symington & Montrey, St. Louis, Mo., for appellant.

Richard C. Coburn, St. Louis, Mo., Gerald M. Smith, St. Louis, Mo., and Counsel — Coburn, Croft & Cook, St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HANSON, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by plaintiff from final judgment sustaining defendant's motion for summary judgment upon the ground of res judicata and dismissing plaintiff's claim for treble damages made under 15 U.S.C.A. § 15 based upon acts of defendant alleged to have been committed in violation of 15 U.S.C.A. § 1.The trial court's well-considered opinion, setting out the facts and the reason for the dismissal, is reported at 214 F.Supp. 195.

This is the fourth action commenced by the plaintiff against the defendant based upon claimed anti-trust violations.Three prior actions had been commenced by plaintiff in the state court alleging violation of Missouri anti-trust statutes, Chapter 416, Revised Statutes of Missouri, 1949, V.A.M.S.Each of such cases was removed to the federal court upon the basis of diversity of citizenship.The first two cases were voluntarily dismissed by the plaintiff.The trial court dismissed the third case upon the ground of res judicata, holding that the voluntary dismissal of the second suit after a prior voluntary dismissal of the first suit constituted a dismissal with prejudice on the merits by reason of the provisions of Federal Rules of Civil Procedure, Rule 41(a)(1)(2).We affirmed.Engelhardt v. Bell & Howell Co., 8 Cir., 299 F.2d 480.Our opinion sets out the factual background of the three prior cases and the legal basis for the application of res judicata.

Plaintiff in his present appeal urges that he is entitled to a reversal of the final judgment of dismissal for the following reasons:

"I.

"The District Court erred in granting appellee\'s motion for summary judgment because a cause of action based upon violation of the Federal Anti-Trust Acts (Title 15, U.S.C.) is distinct from a cause of action based upon state anti-trust law, and is not barred under the doctrine of res judicata by the prior adjudication of cases based upon such state statutes."

"II.

"The adjudication of the prior suit, between these parties, does not bar the cause of action alleged in the case at bar for damages arising from the unlawful acts of appellee which have continued to occur subsequent to the dismissal of those actions."

I.

Defendant relies upon res judicata (claim preclusion) and not upon collateral estoppel (issue preclusion).¹

The law of res judicata as it relates to claim preclusion is firmly established.In a subsequent action by the same parties, a judgment on the merits in a former action based upon the same cause of action precludes relief on the grounds of res judicata.The judgment is conclusive, not only as to matters which were decided, but also as to all matters which might have been decided.Tait v. Western Md. Ry. Co., 289 U.S. 620, 623, 53 S.Ct. 706, 77 L.Ed. 1405;Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 71 L.Ed. 1069;Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195;Guettel v. United States, 8 Cir., 95 F.2d 229, 230, 118 A.L.R. 1060.

The parties to the present action are exactly the same as the parties to the three prior actions.Thus, if the cause of action here is the same as that asserted in the prior actions, res judicata bars relief.

The vital issue presented by this appeal is whether the cause of action pleaded in the present complaint is the same cause of action pleaded in the three prior actions.The trial court held all pertinent complaints state the same cause of action.The test applied in making such determination is stated by the court as follows:

"The primary test for comparing causes of action has long been whether or not the primary right and duty, and the delict or wrong combined are the same in each action.Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069;F. L. Mendez & Co. v. General Motors Corporation, 7 Cir., 161 F.2d 695."214 F.Supp. 195, 196.

Such is a proper statement of the applicable test.For additional supporting authorities, seeNorman Tobacco & Candy Co. v. Gillette Safety Razor Co., 5 Cir., 295 F.2d 362;Williamson v. Columbia Gas & Electric Corp., 3 Cir., 186 F.2d 464;1 Am.Jur.2dActions§§ 1, 128.

Plaintiff urges that the cause of action here pleaded is not the same as the cause of action pleaded in his prior suits.He points out that in the present action relief is sought under federal anti-trust statutes, whereas the prior actions were for relief under the Missouri anti-trust statute, and that the amount of damages sought in each of the suits is different.Plaintiff in his brief summarizes his view with respect to the distinctions between this action and the previous actions as follows:

"It will suffice to point out that the allegations in this case that the business relationship which existed between appellant and appellee under the `Retail Dealer Franchise Agreement\' involved a continuous flow in interstate commerce; that the complained of activities of appellee have been carried out in Illinois, Missouri and other states; that the specified activities of appellee have unreasonably restrained interstate commerce; and that appellee has committed acts forbidden by Section 1 of the Sherman Anti-trust Act, are not contained in any of the previous cases.These facts create a determinative difference between this case and the others for they constitute a cause of action based upon violation of the Federal Antitrust Acts which is separate and distinct from the cause of action pleaded in the earlier cases."

Additionally, plaintiff asserts that the quantum of damages sought in the suits differs.While there is some variance in the amount of damages, both the Missouri and federal statutes provide for treble damages and substantial treble damages are claimed in each action.

It is quite true that the present complaint, unlike the earlier complaints, makes specific allegations with respect to the interstate character of defendant's wrongful activities and alleges that such activities unreasonably restrained interstate commerce and that the damages are claimed under the Federal Anti-Trust Acts.Nevertheless, the basic wrongful acts pleaded in all actions appear to be the same.Plaintiff in each complaint asserts he is a resident of St. Louis County, Missouri; that he operates a retail camera store in St. Louis selling cameras, projectors, film and related items; that defendant is an Illinois corporation manufacturing photographic equipment; that in 1953plaintiff entered into a "Retail Dealer Franchise Agreement" with defendant by reason of which plaintiff purchased, promoted and sold defendant's products; that defendant notified plaintiff of the cancellation of such contract, effective March 8, 1959, and directed plaintiff to discontinue the sale and promotion of defendant's products; that the defendant entered into unlawful pools, trust agreements, combinations and conspiracies with other dealers aimed at regulating and controlling and fixing the price of its products, thus lessening free competition in the sale of such products in Missouri; and that defendant refused to sell to the plaintiff and boycotted and threatened other dealers to prevent them from selling defendant's products to the plaintiff, thereby depriving plaintiff of access to defendant's products for the purpose of reselling and causing the plaintiff the loss of profits that would otherwise have accrued to him in handling such products.

In the Williamsoncase, supra, damages in the action first commenced were sought under the Sherman Act, and in the second action under the Clayton Act.The court recognized that differences existed between things prohibited by such acts, but nevertheless held that a single cause of action existed and that res judicata applied.The court stated that the purpose of res judicata is to end litigation and that parties should not have to relitigate issues which they had already litigated or had a reasonable opportunity to litigate.The court states:

"Reference to the basic theory of tort liability substantiates the position taken here.To put it in rather elementary tort language, the basis of the plaintiff\'s recovery is liability-creating conduct on the part of the defendant, the invasion of a legally protected interest of the plaintiff and the necessary causal connection between defendant\'s acts and plaintiff\'s injury.The plaintiff having alleged operative facts which state a cause of action because he tells of defendant\'s misconduct and his own harm has had his day in court.He does not get another day after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his rights.The problem of his rights against the defendant based upon the alleged wrongful acts is fully before the court whether all the reasons for recovery were stated to the court or not."186 F.2d 464, 470.

Cited for authority for such conclusion is United States v. California & Oregon Land Co., 192 U.S. 355, 358, 24 S.Ct. 266, 267, 48 L.Ed. 476, where Justice Holmes states, "But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.He cannot even split up his claim * * * and, a fortiori,he cannot divide the grounds of recovery."This court has taken the same position in Guettel v. United States, supra.

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