Troutman v. Southern Railway Company, 30625.

• Citation: 441 F.2d 586
• Decision Date: 18 May 1971
• Docket Number: No. 30625.,30625.
• Parties: Robert B. TROUTMAN, Jr., Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

441 F.2d 586 (1971)

Robert B. TROUTMAN, Jr., Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 30625.

United States Court of Appeals, Fifth Circuit.

April 16, 1971.

Rehearing Denied and Rehearing Denied May 18, 1971.

Jones, Bird & Howell, F. M. Bird, Earle B. May, Jr., Trammell E. Vickery, Atlanta, Ga., Bloch, Hall, Hawkins & Owens, Charles J. Bloch, Ellsworth Hall, Jr., Macon, Ga., for defendant-appellant.

Robert L. Pennington, Allen E. Lockerman, Atlanta, Ga., for plaintiff-appellee; Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., of counsel.

Before WISDOM, Circuit Judge, DAVIS,^* Judge, and GOLDBERG, Circuit Judge.

Rehearing Denied and Rehearing En Banc Denied May 18, 1971.

WISDOM, Circuit Judge:

Robert B. Troutman, Jr., a member of the State Bar of Georgia, brought this diversity action against the Southern Railway Company seeking to recover the sum of $200,000 as the reasonable value of legal services rendered to Southern in two separate matters — the Central of Georgia case¹ and the grain rate case — during the years 1962 and 1963. On Southern's motion for summary judgment, the district court ruled that Troutman's claim with respect to the Central of Georgia matter was barred by the Georgia four-year statute of limitations. Troutman v. Southern Ry. Co., N.D.Ga. 1968, 296 F.Supp. 963. Troutman took no appeal from that ruling, and the Central of Georgia matter has dropped out of the case. A jury awarded Troutman the sum of $175,000 as the reasonable value of his services in the grain rate case. We affirm.

I.

In 1963 the Interstate Commerce Commission issued an order directing Southern to increase certain rates on grain shipments from the Midwest to the Southeast by approximately 16 percent. The order created a difficult situation for Southern: if allowed to stand, the order, according to Southern, would result in its losing a $13,000,000 investment in "Big John" railroad cars plus a "tremendous" loss of revenue in the future. Sim S. Wilbanks, a vice president and assistant to the president of Southern, turned for help to Troutman, who had only recently come to Southern's aid in the Central of Georgia case. Troutman, an Atlanta attorney, had no experience in I.C.C. matters, but he was known to Wilbanks as a personal friend and political ally of President John F. Kennedy. Wilbanks told Troutman that Southern was filing suit in a federal district court in Ohio to enjoin the order of the I.C.C. He asked Troutman to persuade the President and the Department of Justice, then headed by the President's brother, Robert F. Kennedy, to "ditch" the I.C.C. and enter the case on the side of Southern. What Wilbanks actually told Troutman, what he engaged Troutman to do, and what Troutman eventually did are of course the crucial issues in this case, and we shall deal with them later in this opinion. Troutman's efforts were successful: the Department of Justice filed an answer in the Ohio lawsuit opposing the I.C.C. and supporting Southern's position. As a result of the Ohio litigation (in which Troutman played no further part), the I.C.C. order was struck down. In return for Troutman's services (in connection with the Central of Georgia case as well as the grain rate case), Southern agreed to look into the joint development of air rights that Troutman owned on property in downtown Atlanta adjacent to property owned by Southern. Efforts to work out the joint development of the air rights continued for several years. When it became apparent, however, that Southern would not join in the development of the air rights, Troutman demanded compensation for his services in the grain rate case in "the usual manner" — i. e., by the payment of money. When Southern refused to pay, Troutman filed suit.

Southern defended the action on three grounds: (1) that Troutman's claim was barred by the Georgia four-year statute of limitations; (2) that Troutman's activities on behalf of Southern were not legal services and were gratuitously rendered; and (3) that because of the nature of the services rendered, it would be contrary to public policy to enforce a claim for compensation. On these grounds Southern moved for the entry of summary judgment in its favor. The district court denied the Motion, Troutman v. Southern Ry. Co., N.D.Ga.1968, 296 F.Supp. 963, and a jury returned a verdict for Troutman in the amount of $175,000. The court denied Southern's motion for judgment notwithstanding the verdict or for a new trial, and Southern appealed.

II.

Southern's first contention is that the district court erred in refusing to grant Southern's motion for judgment notwithstanding the verdict because the evidence conclusively establishes that the contract upon which Troutman sued was "to exert his personal and political influence upon the President of the United States." Southern argues that such a contract is in violation of public policy and unenforceable; therefore, the court erred as a matter of law in failing to render judgment for Southern. We cannot agree.

It is of course true that a contract to influence a public official in the exercise of his duties is illegal and unenforceable when that contract contemplates the use of personal or political influence rather than an appeal to the judgment of the official on the merits of the case. See, e. g., Oscanyan v. Winchester Repeating Arms Co., 1881, 103 U.S. 261, 26 L.Ed. 539; Providence Tool Co. v. Norris, 1865, 69 U.S. 45, 2 Wall. 45, 17 L.Ed., 868; Annot., 148 A. L.R. 768; Annot. 46 A.L.R. 196. Nevertheless, all citizens possess the right to petition the government for redress of their grievances. United States Constitution, Amendment I. To that end, one may employ an agent or attorney to use his influence to gain access to a public official. Moreover, once having obtained an audience, the attorney may fairly present to the official the merits of his client's case and urge the official's support for that position. E. g., Hall v. Anderson, 1943, 18 Wash.2d 625, 140 P.2d 266, 148 A.L.R. 760; Old Dominion Transportation Co. v. Hamilton, 1926, 146 Va. 594, 131 S.E. 850, 46 A. L.R. 186. As the district court well stated in its opinion overruling Southern's motion for summary judgment, it is "only the elements of `personal influence' and `sinister means' that will void the contract and deny it enforcement." Troutman v. Southern Ry. Co., N.D.Ga. 1968, 296 F.Supp. 963, 972. See also Coyne v. Superior Incinerator Co., 2 Cir. 1936, 80 F.2d 844; Meadow v. Bird, 22 Ga. 246; Cary v. Neel, 54 Ga.App. 860, 189 S.E. 575. Moreover, the illegal or sinister nature of a contract for professional services will not be presumed; the burden of proving the illegality of the contract is clearly upon the party asserting it. Steele v. Drummond, 1927, 275 U.S. 199, 48 S.Ct. 53, 72 L.Ed. 238; 17A C.J.S. Contracts § 585.

It necessarily follows then that the decision whether to enforce a claim for compensation for these kinds of legal services will depend largely upon the facts of each case. See Noble v. Mead-Morrison Mfg. Co., 1921, 237 Mass. 5, 129 N.E. 669; 17 Am.Jur.2d Contracts § 211. Whether the parties in fact entered into a contract calling for the improper exercise of personal influence upon a public official is therefore a question for the jury, guided of course by proper instructions. Old Dominion Transportation Co. v. Hamilton, 1926, 146 Va. 594, 131 S.E. 850, 46 A.L.R. 186; cf. 3 A. Corbin, Contracts §§ 534, 554. In this case the jury concluded that Troutman had agreed with Southern to use his influence merely to gain access to the President and present to him the merits of Southern's case; therefore, the contract was valid and enforceable. On appeal from the order of the district court denying Southern's motion for judgment notwithstanding the verdict, it is our task to examine the record to see whether substantial evidence supports the jury's conclusion. See Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374-375 (en banc).

Troutman himself testified that Wilbanks asked him to go to the President and persuade him "to listen to the case and to see if the I.C.C.'s order was not truly against the national interest of this country." He testified that Wilbanks did not ask him to use personal or political influence to get the President to do something for that reason alone. Because he was convinced of the merit of Southern's position, Troutman went to Washington and talked with the President, the President's Special Deputy Counsel Myer Feldman, Assistant Attorney General William H. Orrick, Jr., and officials in the Department of Agriculture.

Feldman testified by deposition that upon being advised of the grain rate problem the President asked him to look into it and "to report back to him on the merits of the case." He said that Troutman supplied him with material helpful to an understanding of the issues and that their conversations dealt with what was in the best interest of the nation, the South, and the farm community. After carefully studying the matter, Feldman reported to the President that he thought that the I.C.C.'s order would adversely affect the economy of the South and therefore was not in the national interest. Finally, Feldman testified that Troutman did not make any request of the President that Feldman considered in any way improper; he did not consider it improper to bring the grain rate case to the attention of the President.

Orrick testified, also by deposition, that he and his staff studied the legal questions and that the decision of the Department of Justice to file an answer in the Ohio court contrary to the position of the I.C.C. was based entirely on the merits of the case, unaffected by any outside influence. He also stated that it was not unusual for an attorney to call upon him for the purpose of presenting to him, as an Assistant Attorney General, the contentions, both legal and economic, of the attorney's client; and such activities come...