American Tobacco Co. v. People's Tobacco Co.

• Citation: 204 F. 58
• Decision Date: 12 April 1913
• Docket Number: 2,372.
• Parties: AMERICAN TOBACCO CO. et al. v. PEOPLE'S TOBACCO CO., Limited.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

204 F. 58

AMERICAN TOBACCO CO. et al. v. PEOPLE'S TOBACCO CO., Limited.

No. 2,372.

United States Court of Appeals, Fifth Circuit.

April 12, 1913

Junius Parker, of New York City, and George Denegre, Joseph Paxton Blair, and W. S. Parkerson, all of New Orleans, La., for plaintiffs in error.

Edwin T. Merrick and Ralph J. Schwarz, both of New Orleans, La for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and NEWMAN, District Judge.

NEWMAN District Judge.

This is a suit by the People's Tobacco Company, Limited, against the American Tobacco Company, Augustus Craft, and the Craft Tobacco Company, which was brought under the act of Congress of July 2, 1890, known as the 'Sherman Anti-Trust Act' (Act July 2, 1890, c. 647, 26 Stat. 209 (U.S. Comp St. 1901, p. 3200)). The suit was for damages alleged to have been sustained by the plaintiff below, the defendant in error here, by reason of an unlawful agreement on the part of the defendant companies and Augustus Craft, who, it is also alleged, conspired to injure the People's Tobacco Company in its business. There was a verdict and judgment for the plaintiff.

It is unnecessary to go into the character of the action or the questions involved on the merits of the case to any great extent, because the recovery in the District Court as to the liability and the amount is not questioned here. The judgment, which recites the amount of the verdict, and is for three times the amount of the same and for counsel fees, is as follows:

'Considering the verdict of the jury rendered in this cause on March 30 1912, wherein the jury found in favor of the plaintiff and against the defendants, in solido, in the sum of $8,728.06, and considering the law in such cases made and provided (Act of Congress approved July 2, 1890), it is ordered, adjudged, and decreed that the plaintiff, the People's Tobacco Company, do have and recover of and from the defendants, the American Tobacco Company, Augustus Craft, and the Craft Tobacco Company, Limited, in solido, the sum of $26,184.18, being three times the amount of the said verdict rendered on March 30, 1912, by the jury herein, together with interest thereon at the rate of 5 per cent. per annum from the date of this judgment. It is further ordered, adjudged, and decreed, in accordance with the act of Congress as aforesaid, that the plaintiff, the People's Tobacco Company, do have and recover of and from the defendants, the American Tobacco Company, Augustus Craft and the Craft Tobacco Company, Limited, in solido, the sum of $5,000 as reasonable attorney's fees herein allowed by the court to plaintiff in this cause. It is further ordered, adjudged, and decreed that said defendants be condemned to pay all the costs of this suit.' [204 F. 60] The only question made on this writ of error is whether the suit was brought in time, the defendants pleading the prescription of one year under the law of Louisiana, and it is conceded that that is the prescribed time for such actions in Louisiana.

The original petition which commenced this proceeding was filed January 30, 1908, and it is claimed that the first knowledge the plaintiff had of the fact that the American Tobacco Company was interested with Augustus Craft and the Craft Tobacco Company in the business which resulted in the injury to the plaintiff was in December, 1907. It is claimed by the plaintiff that the time when it became aware of the fact that the American Tobacco Company had combined with Augustus Craft and the Craft Tobacco Company to injure it in its business is the period from which the prescription began to run. The contention here, on the part of the People's Tobacco Company, as we understand it, is that the combination and conspiracy between the American Tobacco Company, Augustus Craft, and the Craft Tobacco Company was concealed by the latter companies, or, at least, that their business operations and their methods were of such character that they concealed themselves, and that such concealment would prevent the running of the statute.

The question of prescription here was made in several ways by the defendants in the court below, by their requests to charge, which were refused by the court. They are properly certified, making the question here clearly and specifically as to whether prescription began to run before the fact of the concerted action on the part of the American Tobacco Company, Augustus Craft, and the Craft Tobacco Company was discovered by or became known to the People's Tobacco Company. The charge of the court on this question of prescription was as follows:

'When you have gotten that far, if you first decide the case on the question of conspiracy, approached the question of damages, and have determined that the petitioner is entitled to damages, then there is another question of fact for you to determine, and that relates to the defense of prescription. It is the law of Louisiana that acts, such as these, are prescribed is one year after they occur. But it is also the law that this prescription is suspended, has not effect or operation, during such period as the party injured does not know that he has been injured and is unable to bring a suit. That means, gentlemen, that it begins to run from the moment or the day that the petitioner knows that he has suffered an actionable injury. That does not mean that it would begin to run if he merely knew his profits were falling off, or he knew they were falling off from the competition of the Craft Tobacco Company; but it would begin to run if he knew that the falling off or damage was caused by the competition to effect and in pursuance of an illegal combination in restraint of trade. In other words, from the moment he knew he could bring an action against somebody to recover his damages, although he might not have known who the person was, or he might not have known how he was going to prove his action, prescription would run, and after the lapse of one year his right of action would be barred. Therefore it is a question of fact for you to determine, in connection with this case, whether or not the plaintiff knew, or ought to have known, more than a year before this petition was filed, that he had suffered an actionable injury. The petition was filed on the 30th day of January, 1908, the citation was served the same day on all the defendants, and the allegation in the petition is that he did not know of this combination or its operation against him until the 10th of December, 1907, which, of course, is within one year, [204 F. 61] So, if you find the allegation in his petition is correct, and is not offset by the evidence, or not disproved by the evidence, you will pay no further attention to the question of prescription.'

Taking this charge as a whole, we think it fairly presents the question of prescription in this case. The particular language which we think renders the charge sound, if it is otherwise subject to criticism, is this:

'Therefore it is a question of fact for you to determine, in connection with this case,

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