IDEAL PLUMBING COMPANY v. Benco, Inc.
| Decision Date | 02 September 1974 |
| Docket Number | Civ. A. No. T-73-C-70. |
| Citation | 382 F. Supp. 1161 |
| Parties | IDEAL PLUMBING COMPANY, Plaintiff, v. BENCO, INC., and Zapata Warrior Construction, Defendants. |
| Court | U.S. District Court — Western District of Arkansas |
Young & Patton, and Arnold, Arnold & Lavender, Texarkana, Ark., for plaintiff.
Wilson & Guest, Houston, Tex., Smith, Williams, Friday, Eldredge & Clark, Little Rock, Ark., and Wheeler, Watkins & Merriman, Texarkana, Tex., for defendants.
The suit was filed by the plaintiff in connection with construction on the expansion of St. Michael Hospital in Texarkana, Arkansas. Zapata Warrior was the prime contractor for the project and the subcontract for the "mechanical contract" part of the work was awarded to Benco, Inc., for the sum of $697,900.00.
Ideal contended it was entitled to receive the subcontract because its base bid of $697,529.00 was lower than Benco's; further that Benco received the contract because of an illegal reduction of $1,100.00 from its original bid, pursuant to an agreement, combination and conspiracy between Benco and Zapata, all of which were allegedly made with the intent and effect of destroying Ideal as a competitor for the "mechanical contracting" subcontract and all in violation of the anti-trust laws of the United States.
Plaintiff also contended that defendants violated both the Federal statutes and the Arkansas Unfair Trade Practices statute, in that defendant Benco secretly paid or allowed to Zapata Warrior Construction Company a rebate, refund, commission, brokerage or unearned discount, either in the form of money or otherwise; thereby unreasonably excluding plaintiff from effective competition in connection with the mechanical subcontract.
Plaintiff prayed for compensatory damages, treble damages (as allowed by both the Arkansas and Federal Statutes) costs and attorneys fees.
Both defendants specifically denied that either had violated any Federal or State statutes; and Zapata denied that there was any express or implied agreement to award the subcontract to the low bidder. Both defendants admitted that Benco's bid was reduced by $1,100.00 before the subcontract was let, but contended the reduction was made for legitimate business reasons.
The complaint as originally filed contained six claims, one of which was withdrawn before trial. The remaining five claims were submitted to the jury on special interrogatories. The interrogatories and the answers are as follows:
INTERROGATORIES TO BE ANSWERED
You shall return your verdict by supplying answers to the following questions:
1. Did Benco, Inc., engage in a contract, agreement, combination, or conspiracy in violation of Sec. 1 of the Sherman Act?
Answer "Yes" or "No"
Answer: "No"
2. Did Zapata Warrior engage in a contract, agreement combination, or conspiracy in violation of Sec. 1 of the Sherman Act?
Answer "Yes" or "No"
Answer: "No."
3. Did Benco, Inc., make a payment, allowance, or discount to Zapata Warrior Constructors, Inc., in violation of Sec. 2(c) of the Clayton Act? (Also called Robinson-Patman Act)
Answer "Yes" or "No."
Answer: "Yes."
4. Did Zapata Warrior Constructors, Inc., accept or receive a payment, allowance, or discount from Benco, Inc., in violation of Sec. 2(c) of the Clayton Act? (Robinson-Patman)
Answer "Yes" or "No"
Answer: "Yes"
5. Did Benco, Inc., violate the Arkansas Unfair Practices Act?
Answer "Yes" or "No."
Answer: "Yes."
6. Did Zapata Warrior Constructors, Inc., violate the Arkansas Unfair Practices Act?
Answer "Yes" or "No."
Answer: "Yes."
7. Did Benco, Inc., commit a tortious interference with the reasonable expectation of a business relationship between Ideal Zapata Warrior?
Answer "Yes" or "No."
Answer: "No."
8. Did Zapata Warrior Constructors, Inc., commit a tortious interference with the reasonable expectation of a business relationship between Ideal and Zapata Warrior?
Answer "Yes" or "No."
Answer: "No."
9. Did Zapata Warrior break an implied agreement with Ideal to accept the lowest responsible bid it received?
Answer "Yes" or "No."
Answer: "No."
10. If you have answered "Yes" to any of the preceding questions, state the amount of actual damages sustained by Ideal by reason of any such violation.
$28,000.00. /s/ Wayne Ratliff Foreman 8/2/74. Date
As indicated, the jury found against the plaintiff on three of the five claims and against the defendants on two of the five claims and found damages for Ideal Plumbing Company in the sum of $28,000.00. One claim on which the jury found for the plaintiff was based on Section 2(c) of the Robinson-Patman Act and the other on the Arkansas Unfair Trade Practices Act.
Defendants had filed Motions for Summary Judgment prior to trial of the cause; and at the close of the plaintiff's evidence both defendants filed written motions for directed verdicts, and again at the close of all the evidence. All motions were overruled by the Court.
After the jury verdict for the plaintiff on the two claims, the defendants timely filed their respective motions for judgment notwithstanding the verdict under Rule 50(b) of the Federal Rules of Civil Procedure, and defendant Zapata also requested a new trial in the alternative.
This Court is well aware of the importance of the Anti-Trust laws, and the salutary effect in the public interest of enforcement thereof, by private civil suits for triple damages, to effectuate discouragement of anti-competitive practices by large corporations.
The Court also recognizes that the verdict of the jury should not be lightly set aside — certainly not for the mere reason that the Court may happen to disagree with the verdict. The law contemplates, however, that the Court will measure up to its responsibility and act in accordance with its considered evaluation of the record. Consequently, it is now the duty of the Court to consider the motion for judgment notwithstanding the verdict, even though the case was first sent to the jury. In the case of Wright v. Atchison, Topeka and Santa Fe Railway Co., 254 F.Supp. 308 (W.D.Mo.1966) the Court said:
In Greer v. United States, 408 F.2d 631 (6th Cir., 1969) the Court stated:
In Donald v. UARCO Business Forms, 344 F.Supp. 338, a judgment n. o. v. in a copyright case, was affirmed by the 8th Circuit, 478 F.2d 764 (1973). The district court in discussing the evidence in the Uarco Business Forms case quoted the following from the case of Dun & Bradstreet v. Nicklaus, 340 F.2d 882 (8th Cir. 1965):
In England v. Chrysler Corp., 493 F.2d 269 (9th Cir. 1974) the Court of Appeals affirmed the action of the District Court entering a judgment n. o. v. for the defendant in an antitrust case filed against an automobile manufacturing company and its subsidary. In a footnote therein the court said:
The court then stated:
"We find, however, that Sunset has not proved, by sufficient evidence that Chrysler's conduct was culpable..." Emphasis added.)
When we examine the evidence, the briefs, oral arguments, and the transcript of the trial, even in the light of the cited cases, we have concluded that the evidence on the issues is wholly insufficient to sustain the judgment. Further, that there is no substantial evidence from which the jury might have concluded that the defendants violated either the Federal or State statutes in question.
Section 2(c) of the Robinson-Patman Act 15 U.S.C. Section 13(c) provides that:
"(c) It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid."
This Section was not designed to apply to all contracts — only those which are primarily sales of...
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Arkansas. Practice Text
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