Garelick v. Goerlich's, Inc.
| Decision Date | 30 October 1963 |
| Docket Number | No. 15291.,15291. |
| Citation | 323 F.2d 854 |
| Parties | Jacob GARELICK and Sidney Garelick, co-partners, trading under the firm name of Capitol Automotive Supply Co., Plaintiffs-Appellants, v. GOERLICH'S, INC., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William E. Speer, Detroit, Mich., for appellants.
Fred A. Smith, Toledo, Ohio, for appellees, Carolyn J. McNeill, Cobourn, Yager, Smith & Flavey, Toledo, Ohio, on the brief.
Before WEICK, Circuit Judge, TAYLOR, District Judge, and DARR, Senior District Judge.
The lower court sustained defendant-appellee's motion for summary judgment made in plaintiff-appellants' cause of action for treble damages under the anti-trust laws 15 U.S.C.A. § 15 upon the ground that the four year statute of limitations 15 U.S.C.A. § 15b had barred the right to sue. The suit is based on section 1 of the Sherman Act 15 U.S.C.A. § 1.
The uncontroverted proof revealed that prior to October 1956, the plaintiffs-appellants were distributors for the defendant-appellee's products. By letter dated September 4, 1956, defendant-appellee notified plaintiffs-appellants that it would cease doing business with them on October 1, 1956, and did so. This suit was instituted January 17, 1962, more than five years after the receipt of such letter.
Unless some legal reason appears to the contrary, it is obvious that the four year statute of limitations had run at the time this suit was begun. The plaintiffs-appellants so concede.
The plaintiffs-appellants interposed two affidavits stating that two incidents occurred, one in February 1959 and the other in October 1961, which were overt acts and each incident resulted in an accrual of the cause of action. This position would be correct provided that either one or both of the overt acts caused damage to the plaintiffs-appellants. All the authorities are in accord that a right of action for a civil conspiracy under the antitrust laws accrues from the commission of the last overt act causing injury or damage. Suckow Borax Mines Consol. v. Borax Consol., 9 Cir., 185 F.2d 196, certiorari denied 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680, rehearing denied 341 U.S. 912, 71 S.Ct. 620, 95 L.Ed. 1349; Momand v. Universal Film Exchanges, 1 Cir., 172 F.2d 37, certiorari denied 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118, rehearing denied 337 U.S. 934, 69 S.Ct. 1493, 93 L.Ed. 1740; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742, certiorari denied 315 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 73 F.2d 333, 97 A.L.R. 133, certiorari denied 294 U.S. 719, 55 S.Ct. 546, 79 L.Ed. 1251; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 232 F.2d 190.
If the statute of limitations were tolled, or an accrual of a suit set up by an overt act which did not cause damage, "* * * it would effectively destroy the statute of limitations as a statute of peace." Crummer Co. v. Du Pont, 5 Cir., 223 F.2d 238, 248, certiorari denied 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755.
The affidavit as to the incident occurring in February 1959 is to the effect that a...
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Ansul Company v. Uniroyal, Inc.
...or resassertion of the original termination and did not give rise to new claims or toll the running of the statute. Garelick v. Goerlich's, Inc., 323 F.2d 854 (6th Cir. 1963); Molinas v. National Basketball Ass'n, 190 F.Supp. 241 (S.D.N.Y.1961) (opinion by Judge Irving R. Kaufman); Fleische......
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Gaito v. Strauss, Civ. A. No. 65-1018.
...Cir. 1965); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); Crawford v. Zeitler, 326 F.2d 119 (6th Cir. 1964); Garelick v. Goerlich's, Inc., 323 F.2d 854 (6th Cir. 1963); Swan v. Board of Higher Education of City of New York, 319 F.2d 56 (2d Cir. 1963); Baldwin v. Loew's Incorporated, 312......
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...Co., 279 F.2d 299 (1 Cir. 1960); Versluis v. Town of Haskell, 154 F.2d 935 (10 Cir. 1946). 2 For this United cites Garelick v. Goerlich's, Inc., 323 F.2d 854 (6 Cir. 1963); Peto v. Madison Square Garden Corp., 1965 Trade Cases ¶ 71, 398 (S.D.N.Y. 1965); Sherman v. Goerlich's, Inc., 238 F.Su......
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