CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation494 F.2d 16
Docket NumberNo. 73-2090.,73-2090.
PartiesJohn J. TERRELL, Plaintiff-Appellee, v. HOUSEHOLD GOODS CARRIERS' BUREAU et al., Defendants-Appellants.
Decision Date18 June 1974


Melville C. Williams, Chicago, Ill., Jay H. Brown, Will G. Barber, Austin, Tex., for defendants-appellants.

Jack N. Price, Longview, Tex., Fred B. Werkenthin, Austin, Tex., for plaintiff-appellee.

Before GEWIN, GOLDBERG and INGRAHAM, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 18, 1974.

GOLDBERG, Circuit Judge:

This odyssey began a decade ago when appellee John J. Terrell filed a private antitrust suit against appellant Household Goods Carriers' Bureau and ten of its individual carrier members charging violations of sections one and two of the Sherman Act and seeking treble damages under section four of the Clayton Act.1 Terrell complained that a conspiracy to restrain and monopolize commerce between the defendants and Rand McNally and Company, not named as a party, had destroyed his business of computing and selling national mileage guides. Their arduous and acrimonious journey has carried the adversaries through one libel and two antitrust trials, and now for the second time to this Court. Here, hopefully, their peregrinations will end.

Most of the details of this voyage have been previously logged,2 and need not be repeated here. The libel trial ended inconclusively with a hung jury and a settlement. The first antitrust trial resulted in a $375,000 jury verdict against both the Bureau and the individual carriers; the trial court entered judgment on the verdict against the Bureau and judgment notwithstanding the verdict in favor of the individual carriers. On appeal, a majority of the original panel vacated the judgment against the Bureau and remanded the case for a new trial.3 Upon rehearing en banc, a majority of this court affirmed the trial court's judgment against the Bureau on the issue of liability, but reversed for a new trial on the issue of damages. The subsequent trial on damages resulted in a jury verdict against the Bureau for $300,000, which the district court trebled. The Bureau appeals, and we affirm.


Given the length and bitterness of this controversy over the manufacture and sale of national mileage guides, it is certainly not surprising that the parties would disagree on nearly everything about it. For purposes of this appeal, however, they disagree most significantly, and most vehemently, over how to read the road map provided by this Court's previous en banc decision.

Appellant Bureau maintains that the en banc Court affirmed the initial jury determination that the Bureau had violated the Sherman Act, but commanded retrial on the twin issues of causation and the amount of damages. At the subsequent trial, appellant argues, the evidence on the issue of causation was insufficient to support the jury's verdict in favor of the plaintiff, and therefore the trial court erred in refusing the Bureau's motion for directed verdict and judgment notwithstanding the verdict.

We do not reach appellant's sufficiency of the evidence argument, for we agree with appellee that the en banc decision establishing liability finally adjudicated the issue of causation, making any subsequent jury verdict on the point irrelevant. Under well-settled principles of law the decision of this court sitting en banc at an earlier stage of this same case represents the law of the case. See Hodgson v. Brookhaven General Hospital, 5 Cir. 1972, 470 F.2d 729; Gulf Coast B. & S. Co. v. IBEW, Local 480, 5 Cir. 1972, 460 F.2d 105; Love v. Pullman Co., 10 Cir. 1970, 430 F.2d 49; Rachal v. Allen, 5 Cir. 1967, 376 F.2d 999; Prudential Insurance Co. v. Morrow, 5 Cir. 1966, 368 F.2d 813; Lincoln National Life Insurance Co. v. Roosth, 5 Cir. 1962, 306 F.2d 110; 1B Moore's Federal Practice ¶ 0.404 et seq (2d ed. 1974); 9 Moore's Federal Practice ¶ 110.252 at 274-75 (2d ed. 1973). As we have noted before,

the "law of the case" rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that . . . it would be impossible for an appellate court "to perform its duties satisfactorily and efficiently" and expeditiously "if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal" thereof.

White v. Murtha, 5 Cir. 1967, 377 F.2d 428, 431.

The reach of the law of the case doctrine is not limitless. The better view, for example, is that even when applicable, the doctrine does not carry the same consequences as the rule of res judicata. See 1B Moore's Federal Practice ¶ 0.4041 at 405-06 (2d ed. 1974). Thus the law of the case rule applies only to issues that were decided, and "does not include determination of all questions which were within the issues of the case and which, therefore, might have been decided." Id. at ¶ 0.40410, p. 572, quoting from Connett v. City of Jerseyville, 7 Cir. 1940, 110 F.2d 1015, 1028. Nevertheless, the doctrine does mean that the duty of a lower court to follow what has been decided at an earlier stage of the case comprehends things decided by necessary implication as well as those decided explicitly. Id. at 573.

We have also made it clear that the doctrine is not an inexorable command that rigidly binds the court to its former decisions, but rather is an expression of good sense and wise judicial practice. White v. Murtha, supra, 377 F.2d at 431; Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1966, 362 F.2d 571, 574. See 1B Moore, supra, at 573-74. Some circumstances may warrant a re-examination of the earlier decision. For example, the evidence at a subsequent trial may be substantially different, of the controlling authority, in this instance the en banc court or the Supreme Court, may have made a contrary decision on the applicable law. White v. Murtha, supra, 377 F.2d at 432. Nevertheless, the general rule that an appellate court's decision of issues must be followed in all subsequent trial or intermediate appellate proceedings in the same case is waived for only the most cogent of reasons and to avoid manifest injustice. Id.; Poster Exchange, supra; 1B Moore, supra, at 573-74; 9 Moore, supra, at 275.

In order to recover treble damages under section four of the Clayton Act,4 Terrell was required to prove a violation of the antitrust laws by the defendants, an injury to his business resulting from the defendants' wrongful actions, and some indication of the amount of the damage done.5 Both the fact of damage, or causation, and the amount of damage are questions of sufficiency of the evidence, though the certainty of proof required on each issue differs. As the Supreme Court said in Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548,

There is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.6

The distinction between the fact of damage and the amount of damage is especially important in a case such as the one sub judice in which the injury to plaintiff may have been attributable to several factors, not all of which can be the basis for liability on the part of the defendant. In such a case the plaintiff need not prove that the defendant's wrongful actions were the sole proximate cause of the injuries suffered. He must show only, as a matter of fact and with a fair degree of certainty, that defendant's illegal conduct materially contributed to the injury.7 Once the important causal link between the actions of the defendant and the injury to the plaintiff has been established, the plaintiff may enter the more uncertain realm of evaluating the portion of the injury that may be attributed to the defendant's wrongful conduct.

The general verdict of the jury in favor of Terrell and the judgment thereon in the first antitrust trial had the effect of findings in favor of Terrell on the three important elements of his case, violation, causation, and amount of damages. Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 560, 51 S.Ct. 248, 249, 75 L.Ed. 544, 547. On rehearing the en banc Court did not disturb the jury's conclusion that the Bureau had violated the antitrust laws. Nor did it question the implicit jury finding that this wrongful conduct was a substantial, material contributing cause of harm to Terrell's business. Indeed, the en banc Court cited with approval from Judge Coleman's dissent from the decision of the original panel:

Terrell showed the existence of the monopoly, the vigorous efforts of Household and Rand McNally to preserve that monopoly, that Terrell\'s directory, so often on the verge of success, was destroyed by his competitors and the monopoly remains intact to the disadvantage of the shipping public.

Household Goods Carriers' Bureau v. Terrell, 5 Cir. 1971, 452 F.2d 152, 160. The Court did, however, express its concern that in calculating the amount of Terrell's damages the jury might have been swayed by improper considerations and might have included elements of injury for which Terrell could not recover from the Bureau.

At the first antitrust trial Terrell attempted to show that certain wrongful actions of the Bureau and the co-conspirators had destroyed his business by preventing him from securing important government business and by causing Rocky Ford Van Lines, a former Bureau affiliate carrier who had switched to Terrell's guide, and the Oil Field Haulers Association (OHA), Terrell's...

To continue reading

Request your trial
149 cases
  • In re Airport Car Rental Antitrust Litigation, MDL No. 338.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 25 Giugno 1979
    ...526 F.2d 1196, 1205-1206 (9 Cir. 1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1741, 48 L.Ed.2d 204 (1976); Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 20 (5 Cir. 1974). For that reason, the courts have hesitated in granting summary judgment against plaintiffs on the causation i......
  • Bischoff v. Florida, 6:98CV583-ORL-28JGG.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 3 Gennaio 2003
    ...decided by it were to be litigated anew in the same case upon any and every subsequent appeal' thereof." Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir.1974) (quoting White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)). In other words, the law of the case doctrine is ......
  • Pettway v. American Cast Iron Pipe Co., 75-4219
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 24 Luglio 1978
    ...Oil Corp., 500 F.2d 659 (5th Cir. 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1128, 43 L.Ed.2d 402 (1975); Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16 (5th Cir.), cert. denied, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974). As such, the earlier decision generally precludes ......
  • Alan's of Atlanta, Inc. v. Minolta Corp., 89-8073
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Giugno 1990
    ...fact of damage," Alabama v. Blue Bird Body Co., 573 F.2d 309, 317 (5th Cir.1978), or "cognizable injury," Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 20 (5th Cir.), cert. dismissed, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974), needs for its establishment a showing that t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT