William Goldman Theatres v. Kirkpatrick

• Decision Date: 25 February 1946
• Docket Number: No. 9092.,9092.
• Citation: 154 F.2d 66
• Parties: WILLIAM GOLDMAN THEATRES, Inc., v. KIRKPATRICK et al., Judges (LOEW'S, Inc., et al., Interveners).
• Court: U.S. Court of Appeals — Third Circuit

154 F.2d 66 (1946)

WILLIAM GOLDMAN THEATRES, Inc., v. KIRKPATRICK et al., Judges (LOEW'S, Inc., et al., Interveners).

No. 9092.

Circuit Court of Appeals, Third Circuit.

Argued February 6, 1946.

Decided February 25, 1946.

William A. Gray, of Philadelphia, Pa. (Francis T. Anderson, Robert Dechert, and Barnes, Dechert, Price and Smith, all of Philadelphia, Pa., on the brief), for Goldman Theatres.

Miles W. Kirkpatrick, of Philadelphia, Pa., for respondent.

Morris Wolf, of Philadelphia, Pa. (Louis J. Goffman and George Wharton Pepper, both of Philadelphia, Pa., on the brief), for intervenors Warner Bros. Pictures et al.

William A. Schnader, of Philadelphia, Pa. (Bernard G. Segal, Joseph S. Lord, III, both of Philadelphia, Pa., and Schnader, Kenworthey, Segal & Lewis, all of Philadelphia, Pa., on the brief), for intervenors Loew's et al.

Before BIGGS and McLAUGHLIN, Circuit Judges, and LEAHY, District Judge.

BIGGS, Circuit Judge.

The petitioner seeks a writ of mandamus to compel the respondents to vacate an order entered on December 6, 1945 referring the case of William Goldman Theatres, Inc. v. Loew's Inc., Paramount Pictures, Inc., et al., 54 F.Supp. 1011 on the docket of the District Court of the United States for the Eastern District of Pennsylvania, to a special master and refusing to the petitioner a jury trial on the issue of damages. For the history of this litigation see 54 F.Supp. 1011 and 3 Cir., 150 F.2d 738. It will appear from the record in 54 F. Supp. 1011 that the plaintiff in that action, the petitioner in the instant case, did not prove at the trial the damages, if any, which it suffered by reason of the defendants' acts but left that issue for future determination if the substantial questions of law of the case were resolved in its favor. The defendants acquiesced in this course. The District Court, receiving evidence on other issues and finding that the plaintiff had failed to prove a cause of action cognizable under the anti-trust laws of the United States, gave judgment for the defendants. The court found, however, that the plaintiff had suffered loss. We reversed the judgment since we were of the opinion that the plaintiff had proved a cause of action cognizable under the anti-trust laws. We stated: "As the trial court also found, plaintiff has unquestionably suffered loss. We have no means of knowing the extent of that loss. Perhaps, upon remand plaintiff may be able to prove its damages; or, the factors to be considered may be subject to so many unknowns that such damages may veer toward the speculative. We specifically pass no opinion on these problems. We do conclude, however, plaintiff should have judgment and the injunctive relief which it originally sought. The form of decree we leave to the Court below after it has made inquiry into the damages question." See 150 F.2d at p. 745.

The complaint in 4 F.Supp. 1011 was filed on December 8, 1942. Rule 38(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that: "Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue." The complaint shows that the suit is a civil action in which the plaintiff sought injunctive relief and damages. It was at issue no later than November 15, 1943. No demand for a jury trial of any issue, pursuant to Rule 38(b), was made by the plaintiff. Indeed on June 25, 1943 the plaintiff ordered the case on the non-jury list for trial. On November 14, 1945, after remand, the plaintiff filed a petition in the District Court praying that an order be entered "* * * specially listing this case for trial by jury." In support of this prayer the plaintiff asserted (1) that the trial by jury is the most direct and quickest way to settle disputed questions of fact and that the litigation should be concluded as expeditiously as possible, citing certain reasons therefor which will be dealt with at a later point in this opinion, and (2) that the decision of questions pertaining to the amount due for loss of prospective profits lies peculiarly within the province of a jury. On December 6, 1945, however, Judge Kirkpatrick entered an order denying the plaintiff's prayer for a special listing of the case for trial by jury and referred the case to a special master "* * * to receive and report evidence only, together with a summary thereof, with the powers and duties specified in Rule 53(c) and (d) * * *." Thereafter the petition for mandamus was filed and we issued a rule thereon, staying all proceedings in the District Court. Judge Kirkpatrick filed an answer. The defendants in the suit 54 F.Supp. 1011 were permitted to intervene in the present proceeding. They have answered also.

There has been argument as to whether the issue of damages requires an accounting in the sense that that term is ordinarily used. It would be fruitless to embark upon a discussion of this question for it cannot be determined in advance of the receipt of pertinent evidence. We note, however, that it is agreed that there must be a reckoning of the receipts of allegedly competing theatres. Such a reckoning would require an audit if not an accounting. This circumstance might or might not be exceptional in the sense that that adjective is employed in Rule 53(b). But any question presented as to the propriety of the order of reference has in effect become moot for in his answer Judge Kirkpatrick has stated: "The respondent understands that the defendants would prefer to have the case heard by the Court without the interposition of a special master and, if the plaintiff also still desires that (provided, of course, it is determined that * * * it is not entitled to a jury trial) the respondent will amend his order by striking out the reference to a special master." This position was reiterated by counsel for the learned District Judge at the argument before this court. Counsel for the intervenors has stated to us that while their clients are divided, some desiring the case to be heard by the court without the interposition of a master, others taking a contrary view, none of them takes any strong position on the question. We think that it would be appropriate for the court below to vacate that portion of the order complained of which referred the case to a master and without the interposition of a master itself to receive the evidence and determine the issue of damages. In view of our suggestion and the attitude of the learned District Judge as well as that of the parties to the proceeding, we conclude that this phase of the case at bar properly may be treated as if moot.

We come therefore to the second question, whether Judge Kirkpatrick's refusal to grant the petitioner a jury trial on the issue of damages constituted an abuse of discretion. In discussing this point we will assume arguendo that the issue of damages was one "triable of right by a jury" within the purview of Rule 38(b); that is to say, that the case in the District Court and, in particular, the issue of damages, is such that if the petitioner had demanded a jury trial within the time specified by Rule 38 it would have been entitled to a jury trial as of right. On this phase of its case the petitioner relies, as it must, on the provisions of Rule 39 (b); viz., "Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by...