Bankers Life and Casualty Company v. Larson

• Decision Date: 30 June 1958
• Docket Number: No. 16494.,16494.
• Citation: 257 F.2d 377
• Parties: BANKERS LIFE AND CASUALTY COMPANY, Appellant, v. J. Edwin LARSON et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

257 F.2d 377 (1958)

BANKERS LIFE AND CASUALTY COMPANY, Appellant, v. J. Edwin LARSON et al., Appellees.

No. 16494.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Charles F. Short, Jr., Chicago, Ill., Miller Walton, Miami, Fla. (Brundage & Short, Chicago, Ill., Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, Fla., of counsel), for appellant.

James A. Dixon, Dixon, DeJarnette, Bradford & Williams, Miami, Fla., for appellees, Reserve Life Ins. Co., and others.

Richard W. Ervin, Atty. Gen., State of Fla., Walter E. Rountree, Tallahassee, Fla., E. F. P. Brigham, Special Asst. Atty. Gen., of the State of Florida, for appellee, J. Edwin Larson.

Before HUTCHESON, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal is from a summary judgment¹ in a suit brought under Sec. 1 of the Sherman Act, as amended, 15 U.S.C.A. § 1 and Sec. 4 of the Clayton Act, 15 U.S.C.A. § 15, to recover treble damages for injury to plaintiff's interstate business by a conspiracy among defendants.

Here insisting that it was impossible for the district judge on this voluminous record of nearly 3000 pages, containing evidence, some at least of the tendencies of, and the inferences from, which support the charges of fraud and conspiracy made in the pleadings, to reach the conclusion announced by him without first, as a fact finder, deciding questions of credibility and choosing between conflicting inferences or conclusions to be drawn from the facts, appellant argues in effect, that this is just another of the all too numerous cases, Hyman v. Regenstein, 5 Cir., 222 F.2d 545, and the cases it cites, in which, by affixing to a decision on the facts an impermissible summary label, the trial judge has deprived the plaintiff of his right of trial by jury and proved once again the truth of the time worn adage that the longest way around is often the shortest way through. Loews, Inc., v. Bays, 5 Cir., 209 F.2d 610, at page 615.

Pointing out that extensive use of pretrial discovery procedure was made by all parties, resulting in the production of many depositions and documents, appellant urges upon us that in stating in his opinion: "The undisputed facts are legally insufficient to show a conspiracy as charged in the complaint.", the district judge really tried the case on the facts and reached his conclusion by the process of rejecting for reasons not stated by him all evidence² and all inferences which ran counter to what he considered to be the admitted or undisputed facts.

Setting out in his brief in support of his claim, references, to the report and actions of the committee appointed to investigate plaintiff to extracts from the discovery deposition of Larson, to the correspondence between Cravey and Larson, to what is referred to as the Atlanta meeting of the commissioners on July 18, 1951, and to actions taken by Larson and Cravey against the plaintiff in Florida and Georgia, appellant thus concludes his argument:

"On the basis of the foregoing, which necessarily omits many details, plaintiff urges that there were presented for determination by a jury and to by the court as matter of law at least the following genuine issues as to material facts:

"1. Did Larson, Cravey and the Sammons controlled corporations conspire to destroy plaintiff\'s business in Georgia, Florida, and other states and to prevent its expansion into states where it was not licensed?

"2. If Larson was not a conspirator, did Cravey and the Sammons controlled corporations so conspire?

"3. If neither Larson nor Cravey was a conspirator, did the Sammons controlled corporations so conspire among themselves?"

Insisting that it is impossible to determine from the court's terse statement whether, by ignoring or finding contrary to them, the lower court rejected the facts relied on by plaintiff, appellant cites and quotes from Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881, at page 884:

"It is apparent from a consideration of the court\'s findings and conclusions that in determining whether or not there was a genuine issue of fact the court gave no thought to what inferences might reasonably be drawn from the circumstances. The case is largely dependant upon circumstantial evidence. The court also failed to view the evidence, as it should, in a light most favorable to the plaintiffs."

While making common cause against appellant in repelling his assault upon the summary judgment, Larson and his co-defendants, the insurance companies, filed separate briefs in which the approach of each was quite different. Larson, drawing protectingly about himself the cloak of his claimed official immunity from suit for his actions as a state officer, from the assumed vantage point of his claimed untouchability, attacks plaintiff and his cause in language more denunciatory than convincing, more calculated to generate heat than light. In short, instead of meeting the burden cast upon him under this record of showing by argument and discussion that, in disposing of the case by summary judgment, the district court did not deprive plaintiff of his constitutional right of trial by jury, appellee Larson seeks, in part, to do so by sweeping animadversions upon the good faith of plaintiff and his claims. Assuming the very issue which is presented for determination, whether as matter of law the acts complained of by plaintiff as done by Larson were official acts done for the purpose alone of carrying out his official duties and, therefore, he was immune from suit as to them, and not personal acts done as a part of a conspiracy against plaintiff, appellee Larson, — though the district judge did not give this as a reason for his decision and the record does not show plainly, if at all, that as a matter of law this is so — devotes the greater part of his brief to putting forward this claim of immunity.

The other appellees, while putting forward and arguing the same proposition, that concerted official action by agreement between state officials is not within the scope of the prohibitions of the Sherman Act because such prohibitions are directed against private persons' actions and not against actions of state officials, and presenting their case in less ex cathedra, less pontificial and less hortatory fashion, make the additional points set out below³ in favor of the correctness of the judgment.

Proceeding under these heads in a lengthy brief of more than 100 pages, replete with inferences and conclusions drawn from the swollen record as a whole, they seem to us to argue the case as though it had been fully tried below and the question presented for discussion here was whether a verdict or judgment based upon such a trial should or should not be set aside as without evidence to support it, rather than, as in fact is the case here, whether as matter of law there was or was not a genuine issue as to a material fact, and the case was or was not properly disposed of on summary judgment.

Apparently assuming that on a trial the plaintiff could not have bettered its case, the appellees present their case as though this court must either affirm the judgment out of hand or take upon itself...