Barnes Coal Corp. v. Retail Coal Merchants Ass'n

• Decision Date: 29 May 1942
• Docket Number: No. 4930.,4930.
• Citation: 128 F.2d 645
• Parties: BARNES COAL CORPORATION v. RETAIL COAL MERCHANTS ASS'N et al.
• Court: U.S. Court of Appeals — Fourth Circuit

128 F.2d 645 (1942)

BARNES COAL CORPORATION v. RETAIL COAL MERCHANTS ASS'N et al.

No. 4930.

Circuit Court of Appeals, Fourth Circuit.

May 29, 1942.

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George E. Allen, of Richmond, Va. (George E. Allen, Jr., and Allen & Allen, all of Richmond, Va., on the brief), for appellant.

Ralph T. Catterall, of Richmond, Va., Christopher B. Garnett and George W. Dalzell, both of Washington, D. C., and Guy B. Hazelgrove, of Richmond, Va. (Williams, Mullen & Hazelgrove, Hunton, Williams, Anderson, Gay & Moore, Wirt P. Marks, Jr., Irvin G. Craig, and M. J. Fulton, all of Richmond, Va., Charles E. Mahan and Stanley C. Higgins, Jr., both of Fayetteville, W. Va., Barbour, Garnett, Pickett, Keith & Glassie, of Fairfax, Va., Landon C. Bell, of Columbus, Ohio, and Fred O. Blue and Charles M. Love, both of Charleston, W. Va., on the brief), for appellees.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an action instituted by a retail coal dealer to recover triple damages pursuant to 15 U.S.C.A. § 15. The complaint alleges a conspiracy among the defendants violative of the Sherman Anti-Trust Act of 1890, as amended, Title 15, secs. 1 to 7, 15 note, U.S.C.A., the Clayton Act of 1914, Title 15, secs. 12 to 27, U.S.C.A. and the Robinson-Patman Act of 1936, amending sec. 2 of the Clayton Act, 15 U.S.C.A. § 13. It claims that plaintiff has been damaged in the sum of $15,000 as a result of the conspiracy and the things done thereunder, in that the volume of its business and the amount of its profits have been curtailed thereby, in that it has experienced difficulty and been put to expense in obtaining coal, which it is engaged in selling, and in that it has had to pay a higher price for the coal that it has been able to obtain. The action was dismissed by the court below on the ground that it was not brought within one year after the accrual of the cause of action and was barred by the Virginia statute of limitations. It is conceded that, since there is no federal statute of limitations applicable to actions for damages instituted under the federal antitrust acts, the state statute of limitations governs. Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241.

Sec. 5818 of the Virginia Code provides: "Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued."

It is conceded that the action was brought within five years of the accrual of the cause of action alleged; and the question upon the appeal is whether or not the action is of such a nature that it survives the death of a person by or against whom it might have been brought. We think that this question must be answered upon a consideration of the federal statute in the light of the principles of the common law, without reference to the state rule upon the subject, and that, when so considered, the right of action given by the statute is clearly one that survives and is consequently subject to the five year and not the one year provision of the statute of limitations. If, however, we look only to the law of Virginia, we think that the cause of action is one which survives and that it is the five year limitation which is applicable. Three distinct questions are considered in reaching this conclusion: (1) Whether the survivability of the cause of action is to be determined by the federal courts in the exercise of an independent judgment, or whether they are bound by the decisions of the state in which the action is brought with respect to this matter; (2) whether under the rule as established by the federal courts, the cause of action survives; and (3) whether such a cause of action survives under the rule of the Virginia decisions. We shall consider these questions in the order named.

On the first question, it is well settled that, with respect to a cause of action created by act of Congress, the question of survival is not one of procedure but one which depends "on the substance of the cause of action". Schreiber v. Sharpless, 110 U.S. 76, 80, 3 S.Ct. 423, 424, 28 L. Ed. 65; Martin's Adm'r v. Baltimore & O. R. Co., 151 U.S. 673, 692, 14 S.Ct. 533, 38 L.Ed. 311. And, unless the cause of action as so created by act of Congress survives, it does not survive by reason of provisions of state law Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 67, 33 S.Ct. 192, 57 L.Ed. 417; Walsh v. New York, N. H. & Hartford R. Co., C.C., 173 F. 494; Van Choate v. General Electric Co., D.C., 245 F. 120; 1 C.J.S., Abatement and Revival, § 135, p. 183; 25 C.J. 822. It follows that whether the action for damages created by the Sherman Act survives is to be determined by an interpretation of the statute in the light of the common law and is not governed by state survival statutes or state decisions relating to the subject. Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir., 72 F.2d 885, 890; Sullivan v. Associated Billposters, etc., 2 Cir., 6 F.2d 1000, 42 A.L.R. 503; United Copper Securities Co. v. Amalgamated Copper Co., 2 Cir., 232 F. 574; Haskell v. Perkins, D.C., 28 F.2d 222; Caillouet v. American Sugar Refining Co., D.C., 250 F. 639; Bonvillain v. American Sugar Refining Co., D.C., 250 F. 641; Imperial Film Exchange v. General Film Co., D.C., 244 F. 985; 1 Am.Jur. sec. 129; note 42 A.L.R. 521. The decision of the Supreme Court in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, has no bearing on the matter; for the question is not one as to a state common law rule but as to the interpretation of a federal statute and the consequences which flow from it. Awotin v. Atlas Exchange Nat. Bank, 295 U.S. 209, 55 S.Ct. 674, 79 L. Ed. 1393; Deitrick v. Greaney, 309 U.S. 190, 200, 60 S.Ct. 480, 84 L.Ed. 694; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 62 S.Ct. 676, 679, 86 L.Ed.___.

On the second question, we entertain no doubt as to the survivability of the cause of action when the statute creating it is interpreted in the light of the common law rule relating to survival. While there might be some doubt as to this were we to look only to the ancient decisions, we think that the rule is to be determined, not merely by a consideration of the state of the common law at the time of the enactment of the statute de bonis asportatis in the reign of Edward III, or even by a consideration of the common law rule at the time of the American Revolution, but in the light of its subsequent development and the decisions interpreting it. It must be remembered, in this connection, that the common law is not a static but a dynamic and growing thing. Its rules arise from the application of reason to the changing conditions of society. It inheres in the life of society, not in the decisions interpreting that life; and, while decisions are looked to as evidence of the rules, they are not to be construed as limitations upon the growth of the law but as landmarks evidencing its development. As was said in Hurtado v. California, 110 U.S. 516, 530, 4 S.Ct. 292, 28 L.Ed. 232, "Flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law"; and, in the recent case of Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 216, 78 L.Ed. 369, 93 A.L.R. 1136, wherein the ancient rule that the wife was not a competent witness for the husband in a criminal trial was repudiated on the ground that it was no longer in harmony with the spirit of the common law as it had developed, the Court quoted this statement from Hurtado v. California as to the flexibility and capacity for growth of the common law, and went on to say: "To concede this capacity for growth and change in the common law by drawing `its inspiration from every fountain of justice,' and at the same time to say that the courts of this country are forever bound to perpetuate such of its rules as, by every reasonable test, are found to be neither wise nor just, because we have once adopted them as suited to our situation and institutions at a particular time, is to deny to the common law in the place of its adoption a `flexibility and capacity for growth and adaptation' which was `the peculiar boast and excellence' of the system in the place of its origin."

The modern rule as to survivability, we think, is that actions for torts in the nature of personal wrongs, such as slander, libel, malicious prosecution, etc., die with the person, whereas, if the tort is one affecting property rights, the action survives. 1 Am.Jur. pp. 71 and 72; 1 C.J.S., Abatement and Revival, § 132, p. 179; Kinney v. Town of West Union, 79 W.Va. 463, 91 S.E. 260; Lee's Adm'r v. Hill, 87 Va. 497, 12 S.E. 1052, 24 Am.St.Rep. 666 and note; Winston v. Gordon, 115 Va. 899, 80 S.E. 756; Sullivan v. Associated Billposters and Distributors, 2 Cir., 6 F. 2d 1000, 42 A.L.R. 503. Underlying the distinction between actions that die with the person and those that survive is the basic thought that the reason for redressing purely personal wrongs ceases to exist either when the person injured cannot be benefited by a recovery or the person inflicting the injury cannot be punished, whereas, since the property or estate of the injured person passes to his personal representatives, a cause of action for injury done to these can achieve its purpose as well after the death of the owner as before. This rule that the cause of action for injury to property or estate survives is in accord with the rule in equity, where proceedings relate primarily to the protection of property rights. 1 Am.Jur. 68; Clarke v. Mathewson, 12 Pet. 164, 169, 171, 9 L.Ed. 1041. The late Judge Rogers in Sullivan v....