Haskell v. Perkins

• Decision Date: 28 March 1928
• Court: U.S. District Court — District of New Jersey
• Parties: HASKELL v. PERKINS et al.

28 F.2d 222 (1928)

HASKELL v. PERKINS et al.

District Court, D. New Jersey.

March 28, 1928.

Homer S. Cummings, of Stamford, Conn., Sherman L. Whipple and Edward C. Park, both of Boston, Mass., and William A. Kelly, of Stamford, Conn. (McCarter & English and Arthur F. Egner, all of Newark, N. J., of counsel), for plaintiff.

Pitney, Hardin & Skinner and Shelton Pitney, all of Newark, N. J., George W. Schurman and Charles E. Hughes, Jr., both of New York City, Waldron M. West, and Forrest Hyde and Philip M. Payne, both of New York City (John Fletcher Caskey, of New York City, of counsel), for defendants.

RUNYON, District Judge.

At the time the defendants in the above-entitled action made their motion for the setting aside of the verdict and for a new trial, the plaintiff made his motion to treble the damages and to recover an attorney's fee, basing his action upon the seventh section of the Sherman Anti-Trust Act, which provides as follows:

"Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee." 15 USCA § 15.

There could be no question as to the right of the plaintiff to make this motion, in view of the wording of the statute and his successful prosecution of his suit, except for the fact that Mr. James B. Duke is no longer living, and that his death makes the question of the survival of a right to threefold damages a pointed and decisive one.

To me the right to treble damages and an attorney's fee must rest upon the nature of these elements, because, if they are to be reckoned as a part of plaintiff's compensatory damages, there would seem to be no doubt as to their survival; but if, on the other hand, the damages as awarded by the jury constitute in their entirety everything that is compensatory, then the trebling of the damages and the attorney's fee would appear to lie entirely outside the scope of compensation, and be subject to disposal upon a different theory altogether. As one reads the statute, there is no hint given of any exception to be allowed, as the phrase concerning damages and attorney's fee is seemingly mandatory. Nevertheless it appears to me that the reasons for and the intent accompanying the wording of the statute must be ascertained, if possible, and that the old common-law elements, as they pertain to damages and the survival thereof, must be taken into consideration.

In that connection, and upon the argument of this motion, there was, apparently, virtual agreement between counsel in the proposition that, if the matters in dispute were in truth of a punitory nature, they could not be considered as having survived Mr. Duke's lifetime. My consideration of this matter, in the first instance, has led me to consult the request which plaintiff made of the court to charge upon the subject of plaintiff's damages, and plaintiff's request upon this subject was worded as follows:

"19. If the jury find that the plaintiff and Mr. Duke were engaged in a joint adventure, and that Mr. Duke wrongfully abandoned the joint adventure, the damages suffered by the plaintiff are the loss of the value of his interest in the joint adventure; that is, the loss of his contract."

And while I did not charge as requested in those words, my own charge to the jury included the following:

"Neither can anticipated profits as such be incorporated in any estimate of damages, the question being rather the value of that which Mr. Haskell lost by reason of the abandonment of the joint adventure, which you will, of necessity, have found to be a fact before any estimate of damages can be undertaken by you; in other words, the loss of his contract is the damage done to him."

I believed at the time the charge was given, and still believe, that those words in general describe the extent of the damage that could have been done to Mr. Haskell, and, with that conclusion in view, the trebling of the damages and the addition of an attorney's fee can be regarded in no other way than as a burden laid upon an alleged wrongdoer by way of penalty or punishment.

The records of the introduction and passage of this act have been made available, and it is interesting, in connection with this dispute, to pursue the account of proceedings in the Senate and House at the time the Sherman Act, so called, was made law. Apparently an argument was precipitated through an effort made by a Senator from Texas, who offered an amendment to provide that under this section suit might be brought, not only in the federal courts, but alternatively in any state court, and during the course of the debate which ensued Senator Hoar, of Massachusetts, who was in charge of the bill, and who probably was in large measure the author of the same in its final form, spoke as follows, regarding this very section 7:

"What I wish to point out to the Senate and to the Senator from Texas is this: This section, which is proposed to be amended, is a section establishing a penalty, threefold damages. Now, you cannot clothe a state court with the authority to enforce a...