Kahn v. Massler

• Citation: 241 F.2d 47
• Decision Date: 12 February 1957
• Docket Number: No. 11976.,11976.
• Parties: Irving B. KAHN and Peter G. Levathes, Appellants, v. Abraham MASSLER, James Wilson, Glassy Finish Process Company, and Bestway Products, Inc.
• Court: U.S. Court of Appeals — Third Circuit

241 F.2d 47 (1957)

Irving B. KAHN and Peter G. Levathes, Appellants, v. Abraham MASSLER, James Wilson, Glassy Finish Process Company, and Bestway Products, Inc.

No. 11976.

United States Court of Appeals Third Circuit.

Argued December 18, 1956.

Decided February 12, 1957.

Charles C. Kieffer, Washington, D. C., (Thomas J. Brogan, Jersey City, N. J., Joseph Zorn, Port Chester, N. Y., on the brief), for appellants.

Frank L. Bate, Newark, N. J. (Harold H. Fisher, Frederick B. Lacey, Shanley & Fisher, Newark, N. J., on the brief), for appellees.

Before MARIS, GOODRICH and STALEY, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a judgment of the District Court for the District of New Jersey. The trial judge granted, upon motion, an involuntary dismissal at the close of the plaintiffs' case under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C. The district court felt itself bound by the dictum expressed by this Court in Ettore v. Philco Television Broadcasting Corporation, 3 Cir., 1956, 229 F.2d 481, 484, to the effect that the evidence should be considered in the light most favorable to the plaintiff. D.C.D.N.J.1956, 140 F. Supp. 629, 632. In the Ettore opinion the court had in mind Fed.R.Civ.P. 41 (b) as it was prior to the 1946 addition. The effect of the 1946 addition to Rule 41(b) did not have to be decided under the circumstances of the Ettore case and we need not examine the addition here. The effect of the 1946 addition to Rule 41(b) has not been decided by this Court but see 5 Moore, Federal Practice, Section 41.13(4), p. 1045 (2 ed. 1951), and Allred v. Sasser, 7 Cir., 1948, 170 F.2d 233, 235.

The theory of the plaintiffs' case here, as the trial court saw it, upon explanation by the plaintiffs' counsel, "is that based on the nature of the parties' conduct the court must conclude that the relation of plaintiffs and defendants was that of joint venturers whose legal duties to one another have been wrongfully violated by defendants." Id. 140 F.Supp. at page 641. The court reached the conclusion that the evidence failed to support the theory and dismissed the case after a full statement of the facts and discussion of the law. Now the plaintiffs claim that the trial judge too narrowly interpreted their theory of the case and that his conclusion was, therefore, erroneous.

This litigation was begun in a state court in New Jersey and removed to the federal court because of diversity of citizenship. The operative facts occurred in New York and New Jersey. The trial judge correctly held that he should take the law as a New Jersey court would take it, including New Jersey local law where applicable and New Jersey conflict of laws rules where reference was required to the law of New York. He found no difference in the law of the two states on the legal theories involved in the plaintiffs' presentation. The appellants here do not question his statement of the law.

The determination of the case, therefore, must turn upon the examination of the facts to see just what happened between the parties. Plaintiffs' appendix gives us very little of the record even though they are the appealing parties. That deficiency the appellees have supplied.

The plaintiffs offer us a quotation from our own opinion in Q-Tips, Inc., v. Johnson & Johnson, 3 Cir., 1953, 206 F. 2d 144, 145, and other cases talking similar language to the effect that one may not take advantage of relationship of trust and confidence to do pecuniary harm to another. 4 Restatement, Torts § 757, pp. 6, 7 (1939), is likewise cited. We have no disposition to depart from the law shown in these statements and quite recognize the growing trend toward the requirement of a higher standard of commercial morality. Cf. Edmond Cahn, The Moral Decision: Right and Wrong in the Light of American Law (1955).

The trouble with this appeal is that the plaintiffs' case, when read through from end to end, does not support a theory on which recovery can be had. The findings of fact were set out in full by the trial judge and no object would be served by filling up pages of print to detail them again. We repeat only that part which shows why we think the trial judge was right.

The story has its beginning in November, 1946. Mr. Kahn and Mr. Levathes were both employed by Twentieth Century Fox. In November, the two during a lunch hour went to a jeweler's shop to pick up or look at a Christmas present Mr. Levathes was purchasing for his wife. It was a gold record about two inches in diameter. Mr. Levathes told Mr. Kahn, "it plays, `I Love You, I Love You'." Mr. Kahn was "intrigued." He and his friend began to consider commercial possibilities for such a record not made of gold, but cheap enough to attain quantity distribution. When the two talked they expressed the view that if the thing worked it would be "terrific" and certainly "unique." These men knew about program-making and had contacts with musicians and other talent. They knew nothing about the problems involved in...