Elyria-Lorain Broadcasting Co. v. Lorain Journal Co.

• Decision Date: 12 April 1966
• Docket Number: No. 16244,16245.,16244
• Citation: 358 F.2d 790
• Parties: The ELYRIA-LORAIN BROADCASTING COMPANY, Plaintiff-Appellant and Cross-Appellee, v. The LORAIN JOURNAL COMPANY, Isadore Horvitz, D. P. Self, Individuals, and Harry R. Horvitz, Willian D. Horvitz and Francis E. Kane, Executors of Estate of Samuel A. Horvitz, Defendants-Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

358 F.2d 790 (1966)

The ELYRIA-LORAIN BROADCASTING COMPANY, Plaintiff-Appellant and Cross-Appellee, v. The LORAIN JOURNAL COMPANY, Isadore Horvitz, D. P. Self, Individuals, and Harry R. Horvitz, Willian D. Horvitz and Francis E. Kane, Executors of Estate of Samuel A. Horvitz, Defendants-Appellees and Cross-Appellants.

Nos. 16244, 16245.

United States Court of Appeals Sixth Circuit.

April 12, 1966.

Thurman Arnold and Marcus Cohn, Washington, D. C. (Cohn & Marks, Arnold, Fortas & Porter, Washington, D. C., Herbert A. Rosenthal, Harry Kottler, Daus, Schwenger & Kottler, Cleveland, Ohio, on the brief), for Elyria-Lorain Broadcasting Co.

Morris Berick, Cleveland, Ohio (Warren Daane, Cleveland, Ohio, on the brief; Burke, Haber & Berick, Baker, Hostetler & Patterson, Cleveland, Ohio, of counsel), for Lorain Journal Co. and others.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge.

PER CURIAM.

This case is before us a second time on the issue of damages. In the first appeal we reversed and remanded for a new trial because the District Court had found that plaintiff sustained no damage as a result of the unlawful conduct of defendants. Elyria-Lorain Broadcasting Co. v. Lorain Journal Co., 298 F.2d 356 (6th Cir. 1961). We were of the view that the findings of fact and opinion of the District Court,¹ affirmed by opinion of the Supreme Court in the Government's suit for injunction to restrain violation of the antitrust laws, presented an extremely strong prima facie case of the fact of damage. In addition to the prima facie case thus established, plaintiff in our judgment had introduced enough evidence of actual damage to show that the findings of fact of the District Court to the effect that no damage had been sustained, were clearly erroneous. 298 F.2d 356, 358.

The salient facts in this case appear in the previous decision of this Court and in the opinions of the District Court and of the Supreme Court in the Government's antitrust action for injunction, and need not be repeated here.

On the remand, the District Judge found damages in the amount of $10,000, which were trebled to $30,000, and allowed attorneys' fees of $25,000 and costs of $673.29. Plaintiff contends in the present appeal that the award of damages was grossly inadequate and that the trial court erroneously limited recovery to specific items of damage and allowed nothing for general damages, which it claims were clearly shown by the evidence.

The specific items of damage allowed by the District Court related to some sixteen radio advertisers who had been induced by defendants to cancel their contracts with plaintiff for radio advertising, or not to advertise over plaintiff's radio station until January 5, 1951, or not to renew advertising contracts, or not to expend additional sums in advertising during the period from 1948 through 1951. There were others, the Court in his opinion found,

"* * * who testified that they desired and intended to take out space with the radio station but somehow or other they didn\'t. As to those, we have no proof as to how long they would have taken out that space, how much they would have taken, what it would have cost."

There can be no question but that specific items of damage resulting from a violation of the antitrust laws were recoverable. They were known to the injured party and were the subject of proof. But plaintiff would have no knowledge of all the activities of defendants directed at inducing Lorain merchants to refrain from advertising over its radio station. The plaintiff would know that it was not receiving the radio advertising revenues which it could reasonably have expected to obtain from Lorain merchants. This appears by comparing plaintiff's revenues from Lorain with those from Elyria. The two cities are contiguous and located in the same county. Lorain was the county seat, had the larger population and, as we pointed out in our previous opinion, was plaintiff's greatest potential source of revenue.

A comparison may be made from the two tables appearing in our first opinion, which are set forth below.² During the first few months of operations, Lorain revenues slightly exceeded those from Elyria. Thereafter when the boycott became effective (1948-1951), Lorain revenues declined substantially. The lowest ebb was reached in August, 1950, when Lorain revenues totalled only $832.00, which did not include national advertisers. During the period from 1949 to 1951, inclusive, radio revenues from Elyria exceeded those from Lorain by nearly $117,000. Experts estimated the cost of handling additional Lorain business at percentages varying from 15 to 30% The experts agreed that there was a relationship between the amount of retail sales and radio revenues in a given city. The ratio was obtained from Elyria and used in Lorain computations, from which damage was estimated from $81,000 to $87,000, depending upon the percentage used in computing the cost of handling the additional business. The District Court gave no effect to the comparison of revenues of the two cities and allowed no general damages.

It is not the rule that in an action for damages for violation of the antitrust laws plaintiff is limited to recover only the specific items of damage which he can prove with reasonable certainty. On the contrary, the trier of the facts may make a just and reasonable estimate of the damage based on relevant data and may act upon probable and inferential as well as direct and positive proof. The wrongdoer should bear the risk of the uncertainty which his own wrong has created. Bigelow v. RKO Radio-Pictures, 327 U.S. 251, 66 S. Ct. 574, 90 L.Ed. 652 (1945); Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 51 S.Ct. 248, 75 L. Ed. 544 (1931); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798 (1st Cir., 1964).

That the Court should have allowed recovery in some amount for general damages is clear from the evidence.

The unlawful boycott continued from almost the beginning of operations of the radio station in 1948 until the latter part of 1951 or the first part of 1952. It was not until January 28, 1952 that the defendants finally published the notice required by paragraph IV of the decree entered in the antitrust case, which publication was continued for twenty-four consecutive weeks.

...