Sandidge v. Rogers

• Decision Date: 15 October 1958
• Docket Number: No. IP 56-C-253.,IP 56-C-253.
• Parties: Mary Lucille SANDIDGE, Plaintiff, v. Ralph J. ROGERS et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

167 F. Supp. 553

Mary Lucille SANDIDGE, Plaintiff, v. Ralph J. ROGERS et al., Defendants.

No. IP 56-C-253.

United States District Court S. D. Indiana, Indianapolis Division.

October 15, 1958.

George E. Weigle, Louis Pearlman, Jr., and J. Frederick Hoffman, Lafayette, Ind., for plaintiff.

Mellen & Mellen, Robert L. Mellen, Bedford, Ind., Alan W. Boyd, Thomas M. Scanlon, Louis A. Highmark, William P. Wooden, and Dwayne M. Berner, Indianapolis, Ind., Barnes, Hickam, Pantzer & Boyd, of counsel, Indianapolis, Ind., for defendants.

HOLDER, District Judge.

This case is submitted on defendants' motion for summary judgment.¹ For the opinion of this Court's ruling on defendants' motion to dismiss the first amended complaint for failing to state a claim upon which relief could be granted see 156 F.Supp. 286 and for the reversing opinion of the United States Court of Appeals see 7 Cir., 256 F.2d 269.

The second amended complaint² and the answer in denial and the affirmative defense of the statute of limitations³ thereto make up the issues of the action.

Pursuant to a pre-trial order, the plaintiff declared that whenever the amended complaint refers to "Anti-Trust Laws" it is intended to mean Sections one and two of the Act of July 2, 1890, known as the Sherman Act, and Sections four, seven, and twelve of the Act of October 15, 1914, known as the Clayton Act (15 U.S.C.A. §§ 1, 2, 15, 18, and 22); "Among the several States", it is intended to mean commerce in crushed stone between the States of Indiana and Illinois; "Market", it is intended to mean the area from which crushed limestone from plaintiff's quarry was sold by Nally, Ballard & Cato, Inc., i. e., Southern Indiana and Southern Illinois; relevant area as to landlords, it is intended to mean the State of Indiana; market as to landlords, it is intended to mean the stone crushers available to such landlords; specific areas where defendants had the power to affect price, quantity, or quality of crushed limestone in interstate commerce, it is intended to mean Lawrence County, State of Indiana, and the results of which might affect price, quantity, or quality of stone flowing from Lawrence County, Indiana, into Southern Illinois; "Stone", it is intended to mean limestone for crushing and not dimensional stone or sandstone.

The evidence offered in support of the motion for summary judgment consists of admissions contained in the pleadings, the depositions, and admissions on file, together with affidavits of Wayne K. Sowers, John A. Ward, H. I. Hansen, John B. Patton, Robert H. Prince, and John G. Sanford.

The evidence offered in opposition to the motion for summary judgment consists of the pleadings and the affidavit of George E. Weigle, attorney for the plaintiff.

The second amended complaint is an action for treble damages and attorney's fees under 15 U.S.C.A. § 15 based upon the alleged violations by the defendants of Title 15 U.S.C.A. §§ 1, 2, 18, and 22.

Prior to the passage of 15 U.S.C.A. § 15b⁴ effective January 7, 1956, there was no limitation of action of the United States applicable to 15 U.S.C.A. § 15 and this action. Huntington v. Attrill, 1892, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123; Chattanooga Foundry & Pipe Works v. City of Atlanta, 1906, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241. When the action was barred depends upon the laws of the State of Indiana. The defendants urge that Burns' Indiana Statutes Anno., (1933 Ed. 1946 Repl.) Section 2-602 governs, that plaintiff's action is for the recovery of statutory penalties and must have been commenced within the two years after the action accrued.⁵

Whether an action under 15 U.S.C.A. § 15 is one to recover a statutory penalty within the meaning of the Indiana two-year limitation statute has not been previously decided in a published opinion. However, the Honorable William E. Steckler, Chief Judge of this Court, has heretofore held that it was within the meaning of the Indiana Statute in an unpublished memorandum opinion of December 6, 1957 and was referred to in defendants' brief.

The United States Court of Appeals for the Seventh Circuit has decided that similar provisions of the Illinois and Wisconsin Statutes apply to an action under 15 U.S.C.A. § 15. Hoskins Coal & Dock Corp. v. Truax Traer Coal Co., 7 Cir., 1951, 191 F.2d 912, certiorari denied 342 U.S. 947, 72 S.Ct. 555, 96 L.Ed. 704; Sun Theatre Corp. v. R K O Radio Pictures, Inc., 7 Cir., 1954, 213 F.2d 284; Schiffman Bros., Inc., v. Texas Co., 7 Cir., 1952, 196 F.2d 695; Grengs v. Twentieth Century Fox Film Corp., 7 Cir., 1956, 232 F.2d 325, certiorari denied 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 77.

The legislative intent of the Indiana Limitation Statute is expressed in Brown v. Clow, 1902, 158 Ind. 403, 62 N.E. 1006; Standard Liquors v. Narcowich, 1951, 121 Ind.App. 600, 99 N.E.2d 268; United States Reduction Co. v. Nussbaum, 1942, 112 Ind.App. 330, 42 N.E.2d 403; Superior Laundry Co. v. Rose, 1923, 193 Ind. 138, 137 N.E. 761, rehearing denied 139 N.E. 142, 26 A.L.R. 1392. Indiana State Anti-Trust Statute is molded upon 15 U.S.C.A. § 15, (Burns' Indiana Statute Anno. (1933 Ed. 1950 Repl.) Section 23-122) and the recovery provided is "a penalty of three-fold the damages which may be sustained, together with the costs of suit, including a reasonable attorney's fee" (italics added), which is also an indication of the Indiana Legislature's understanding of the term statutory penalty. I conclude that the Indiana Courts would regard an action for treble damages and attorney's fees under 15 U.S.C.A. § 15 to be an action for a statutory penalty within the meaning of the two-year limitation statute of Indiana.

Did the plaintiff's action accrue more than two years prior to January 7, 1956, the effective date of 15 U.S.C.A. § 15b? If it did so accrue, it was barred by the Indiana statute of limitations. The question of when the cause of action accrued under 15 U.S.C.A. § 15 is federal and the opinions of the Federal Courts point the way. Rawlings v. Ray, 1943, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605; Momand v. Universal Film Exchange, D.C.Mass.1942, 43 F.Supp. 996, affirmed 1 Cir., 1948, 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.

To ascertain the accrual date of plaintiff's action it is necessary to review the facts of the case to ascertain the date of the commission of the wrongful acts from which time the statute commences to run, irrespective of the date or dates of the occurrence of the damage resulting proximately from the wrongful act. Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 1934, 73 F.2d 333, 97 A.L.R. 133; Nalle v. Oyster, 1913, 230 U.S. 165, 33 S.Ct. 1043, 57 L.Ed. 1439; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 1956, 232 F.2d 190; Crummer Co. v. Du Pont, 5 Cir., 1955, 223 F. 2d 238; Park-In Theatres v. Paramount-Richards Theatres, D.C.Del.1950, 90 F. Supp. 727, affirmed 3 Cir., 185 F.2d 407, certiorari denied 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373; Levy v. Paramount Pictures, D.C.N.D.Cal.1952, 104 F.Supp. 787; Burnham Chemical Co. v. Borax Consolidated, 9 Cir., 1948, 170 F.2d 569; Momand v. Universal Film Exchange, 1 Cir., 1948, 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.

Briefly stated the facts are:

The plaintiff was the owner of land containing five million tons of limestone suitable for quarrying and sale in interstate commerce. She leased it to Nally, Ballard & Cato, a partnership, later incorporated on November 5, 1945 to remove the stone for a royalty of three cents per ton. A new lease between the same parties was entered into on January 16, 1950 for a royalty of five cents per ton with a provision for a minimum payment of $138.89 per month and for the period from January 16, 1950 to November 1, 1956 with an option to the lessee to renew for an additional period of ten years from November 1, 1956. The said lessee paid plaintiff substantial royalties ranging from $2,000 to $15,000 per year from 1945 through 1952.

The plaintiff contends that defendants long prior to 1951 continuously to the date of the filing of this action on September 26, 1956, violated the said Anti-Trust Laws of the United States and will continue to do so in the future.

In performing said wrongful conduct, the plaintiff contends that the first blows in her direction were made during the years 1951, 1952, and 1953. She contends that the free competition in the trade and commerce of quarrying, crushing and selling stone in Southern Indiana and Southern Illinois and particularly in Lawrence and Monroe Counties, Indiana, which existed up to November 1951 thereafter ceased to exist and has been completely dominated by the defendants. The defendants sought to eliminate Nally, Ballard & Cato, Inc., in order to acquire the power to eliminate plaintiff from competition and her stone from the market. In order to accomplish this, defendants sometime prior to November 1951 purchased land adjoining plaintiff's land on the east and west. The uncontroverted evidence offered in the proceedings is that the land on the east was purchased in August and September 1951, and was not adjoining plaintiff's property; the land on the west was purchased in March of 1952 and adjoined plaintiff's land. The land was purchased on the east and west of her land for the alleged purpose of intimidating plaintiff and her lessee so that they would sell to the defendants at a price determined by them. Defendants thereafter proceeded to construct and develop and complete a quarry on the land west of plaintiff's land. The uncontroverted evidence is that the Mitchell quarry to the west of plaintiff's land was constructed between March 1952 and August 1952. In constructing the quarry, they piled thousands of tons of waste material around plaintiff's...