Berry Refining Company v. Salemi, 15212.
| Decision Date | 23 December 1965 |
| Docket Number | No. 15212.,15212. |
| Citation | 353 F.2d 721 |
| Parties | BERRY REFINING COMPANY, a corporation, Plaintiff-Appellant, v. Helen SALEMI, Frank Hill and Helen Hill, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles E. Herzog and Carl F. Wrench, Chicago, Ill., Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., of counsel, for appellant.
John R. Fielding, Chicago, Ill., for appellees.
Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.
Plaintiff, a Delaware corporation, having its principal place of business in Indiana, sued the defendants who are both Illinois residents. The complaint alleged the sale and delivery of goods by plaintiff to "Hill Oil Company, 5011 West 26th Street, Cicero, Illinois." The complaint alleged that such goods were sold and delivered from October 26, 1962 through January 31, 1963, and that the amount due and owing is $12,394.76.
The complaint further alleged that the sum of $12,394.76 was now due and owing from one, or more, or all of the defendants as were doing business as Hill Oil Company from October 26, 1962 through January 31, 1963.
Plaintiff pleaded alternatively,1 that the account was owed by Frank Hill as a sole proprietor or by a partnership composed of two or more of the following people: Frank Hill, Helen Hill, Helen Hill Salemi and Michael Salemi (deceased husband of Helen Hill Salemi).
Prior to the introduction of any evidence, defendants' counsel moved that plaintiff be required to elect whether it was proceeding against Frank Hill as sole proprietor of Hill Oil Company or against one of the two partnerships alleged to have been doing business as Hill Oil Company. The trial court ordered plaintiff to make an election. Under compulsion of that ruling, plaintiff elected to proceed on the theory that Hill Oil Company was one of two partnerships, namely, Frank and Helen Hill or Michael and Helen Salemi.
Hill Oil Company operated a gasoline filling station at 5011 West 26th Street in Cicero, Illinois. The station was named after the defendant, Frank Hill, who admitted he had originally owned and operated Hill Oil Company. However, he testified that in 1946 he gave the station and its business to his daughter, Helen Hill Salemi, and her husband, Michael. Mr. Hill testified that after that date he had no interest in the business except to receive rental "for the station."
At the close of plaintiff's evidence, the trial court granted defendants' motion for a directed verdict stating —
We think the trial court erred in requiring plaintiff to make an election. It is clear plaintiff had the right to plead in the alternative. We said in Reconstruction Finance Corporation v. Goldberg, 7 Cir., 143 F.2d 752, 756 — "But even though inconsistent remedies were alleged, such practice is permissible under the Federal Rules of Civil Procedure." If the trial court encounters any difficulty in submitting the issues to a jury, use might be made of a special verdict under Rule 49(a) or a general verdict with interrogatories under Rule 49 (b), Federal Rules of Civil Procedure.
In reviewing a trial court's ruling granting a directed verdict, we keep in mind the well-established rule that such motion should be denied "where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Smith v. J. C. Penney Co., 7 Cir., 261 F.2d 218, 219.
In considering the evidence most favorable to the plaintiff, we note that in August 1952, Frank Hill and Helen Hill signed and furnished to the First National Bank of Cicero, a partnership...
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