Barnes Coal Corporation v. RETAIL COAL M. ASS'N

• Decision Date: 20 January 1942
• Docket Number: No. 147.,147.
• Citation: 43 F. Supp. 309
• Court: U.S. District Court — Eastern District of Virginia
• Parties: BARNES COAL CORPORATION v. RETAIL COAL MERCHANTS ASS'N et al.

43 F. Supp. 309

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

No. 147.

District Court, E. D. Virginia, at Richmond.

January 20, 1942.

Allen & Allen, of Richmond, Va., for plaintiff.

Guy B. Hazelgrove, of Richmond, Va., for defendants Retail Coal Merchants Assn. and others.

M. J. Fulton, of Richmond, Va., for defendants E. T. Long Coal Co., Inc., and others.

Hunton, Williams, Anderson, Gay & Moore, of Richmond, Va., and Brown, Jackson & Knight, of Charleston, W. Va., for defendants A. T. Massey Coal Co., Inc., and others.

Barbour, Garnett, Pickett & Keith, of Fairfax, Va., for defendants Cabell Coal Co., Inc., and others.

Blue, Dayton & Campbell, of Charleston, W. Va., and Christopher B. Garnett, of Fairfax, Va., for defendants Wyatt Coal Sales Co., Inc.

George C. Peery, of Tazewell, Va., for defendants Smokeless Coal Co.

Mahan, Bacon & White, of Fayetteville, W. Va., for defendant White Oak Coal Co., Inc.

POLLARD, District Judge.

This is a suit by Barnes Coal Corporation against Retail Coal Merchants Association and eighty-one other defendants brought pursuant to Title 15, Section 15, U.S.C.A. Said section provides that any person who shall be injured in his business or property by reason of anything forbidden in the anti-trust laws may sue therefor and recover threefold the damages by him sustained. The complaint alleges that the defendants violated the Sherman Anti-Trust Act of July 2, 1890, as amended, Title 15, Sections 1 to 7, 15 note, U.S.C.A.; the Clayton Act of 1914, Title 15, Sections 12 to 27, U.S.C.A.; and the Robertson-Patman Act of 1936, 15 U.S.C.A. § 13, amending Section 2 of the Clayton Act; in that the defendants entered into a conspiracy, individually and collectively, for the purpose of eliminating competition and monopolizing the retail trade of coal and fixing the prices and that the defendants did certain acts to carry into effect the said conspiracy.

All of the defendants have filed their answers to said complaint in which each defendant sets forth as an affirmative defense the statute of limitations. Certain of the defendants have filed interrogatories to which the plaintiff has made answers. From these interrogatories and answers it appears that all of the acts of the defendants of which the plaintiff complains occurred previous to the year 1940, or more than one year before April 8, 1941, the date on which the action was begun. Certain, but not all, of the defendants thereupon moved the court for summary judgment (Rule 56(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c), and at the request of all parties this action was set down for a hearing on said motion. At such hearing it was conceded by all parties that on said motion the only question for determination by the court was whether the one-year or the five-year statute of limitation applied to this action and the counsel for the plaintiff agreed that should the court determine that the one year statute applied that final judgment dismissing the action might be entered without requiring the defendants who had not made motions for summary judgment to do so. See Argument on Motion for Summary Judgment, pages 7 and 8.

What then is the statute of limitation applicable to a suit of this nature brought in a District Court in Virginia? The period of limitations for a civil action brought under Title 15, Section 15, U.S. C.A., not being specified by Congress, is to be governed by the law of the state where the action is brought. Title 28, Section 725, U.S.C.A. In applying the state statute the Federal Court must follow the construction placed thereon by the highest Court of the state. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. So that the duty before the court is to examine the Virginia statutes of limitations and to apply the same in accordance with the interpretations given to such statutes by the highest courts of Virginia. In doing this, reference will be made to survivorship of actions. This is necessary for the reason that one of the Virginia statutes to be considered provides a one-year limit for torts that do not survive and a five-year limit for those that do. However, it must be remembered that we are not here dealing with a problem of substantive law but we are concerned with a general statute of limitations confined in its operations to a procedural question. If the question before the court was the right to revive an action under the provisions of Title 28, Section 778, U.S.C.A., an entirely different situation would be presented and the Virginia cases would not be controlling.

The applicable Virginia statutes are Sections 5818 and 5385 of the Code of Virginia. Said sections provide respectively as follows:

Section 5818. "Of actions not before specified. — 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."

Section 5385. "For goods carried away, waste, or damage to estate of or by decedent. — An action of trespass, or trespass on the case, may be maintained by or against a personal representative for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent."

In making the period of limitation dependent upon survivorship of the action, the Virginia statute follows one of the most ancient of common law distinctions and one of the earliest acts of Parliament embraced in the common law when it reached Virginia. The historical background of the distinction is treated most interestingly and fully in the briefs of counsel. The present statute has been in force since January 1, 1850, when the Code of 1849 went into effect. Section 5818 provides that a cause of action which survives shall be brought within five years after the right to bring the same shall have accrued and that a cause of action which does not survive shall be brought within one year. Section 5385 defines a cause of action which survives as one "for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent." So we reach the ultimate question to be determined in this case: Does the injury of which the plaintiff complains constitute the taking or carrying away of the goods or the damage to any estate as provided in Section 5385? If so, the limitation is five years; otherwise, the limitation is one year.

As already stated it is the duty of the court in determining this question to examine the Virginia statute and to apply the same in accordance with the interpretation given to such statutes by the highest Courts of Virginia. Before doing so, it is appropriate that reference be made to certain Federal Circuit Court of Appeals cases, which it is contended, are binding on this court because they have been approved by the Circuit Court of Appeals for the Fourth Circuit. Without referring to these cases by their title, this contention may be disposed of by saying that in the cases cited survivorship was a federal question because matters of substantive law were involved. Here we are concerned with a general statute of limitations involving a procedural question and survivorship is not a federal question.

The plaintiff relies on Watson v. Daniel, 165 Va. 564, 183 S.E. 183, and the defendants cite with confidence the case of Mumpower v. City of Bristol, 94 Va. 737, 27 S.E. 581. The following Virginia cases, while not deciding the exact question here under consideration, contain helpful discussions of general principles: Birmingham v. Chesapeake & Ohio Ry. Co., 98 Va. 548, 37 S.E. 17; Winston v. Gordon, 115 Va. 899, 80 S.E. 756; Cover v. Critcher, 143 Va. 357, 130 S.E. 238; Trust Co. v. Fletcher, 152 Va. 868, 148 S.E. 785, 73 A.L.R. 1111; and Vance v. Maytag Sales Corporation, 159 Va. 373, 165 S.E. 393.

In Mumpower v. City of Bristol, 94 Va. 737, 27 S.E. 581, the action was for maliciously and without probable cause suing out an injunction against a plaintiff whereby the operation of his mill was suspended. The declaration alleged that by reason of the malicious obtaining and suing out of the injunction without probable cause the plaintiff was greatly injured in his business and was deprived of great profits and gains. The defendant pleaded that the causes of action did not not accrue to the plaintiff within one year next before the commencement of the suit.

The court said (page 739 of 94 Va., page 581 of 27 S.E.):

"The wrongful act which the defendant is alleged to have committed, and for the injury resulting from which the plaintiff sues, consisted in maliciously and without probable cause suing out an injunction against the plaintiff, whereby the operation of his mill was suspended. It is quite obvious that this injunction did not operate to take or carry away the goods of the plaintiff, nor cause the waste or destruction of, or inflict any damage upon, the estate of the plaintiff. It is true that the language of the statute is comprehensive, and embraces damage of any kind or degree to the estate, real or personal, of the person aggrieved; but the damage must be direct, and not the consequential injury or loss to the estate which...