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Parmelee Transportation Co. v. Keeshin

June 30, 1961

PARMELEE TRANSPORTATION COMPANY
v.
JOHN L. KEESHIN, RAILROAD TRANSFER SERVICE, INC., HUGH W. CROSS, THE NEW YORK CENTRAL RAILROAD CO., HOWARD E. SIMPSON, PAUL E. FEUCHT, WAYNE A. JOHNSTON, FRED G. GURLEY, THE ATCHISON, TOPEKA AND SANTA FE RAILWAY CO., THE BALTIMORE AND OHIO RAILROAD CO., CHICAGO & NORTHWESTERN RAILWAY CO., ILLINOIS CENTRAL RAILROAD CO. AND THE PENNSYLVANIA RAILROAD CO.



Author: Schnackenberg

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge: Parmelee Transportation Company, a Delaware corporation, plaintiff, has appealed from a judgment of the district court in favor of John L. Keeshin, Railroad Transfer Service, Inc., Hugh W. Cross, The New York Central Railroad Company, Howard E. Simpson, Paul E. Feucht, Wayne A. Johnston, Fred G. Gurley, The Atchison, Topeka and Santa Fe Railway Company, The Baltimore and Ohio Railroad Company, Chicago & Northwestern Railway Company, Illinois Central Railroad Company and The Pennsylvania Railroad Company, defendants. Plaintiff's complaint filed February 16, 1956 alleges a combination and conspiracy in restraint of trade in violation of Sections 1 and 2 of the Sherman Act (15 U.S.C.A. §§ 1 and 2), and prays for treble damages and injunctive relief. The judgment bases a dismissal of the action on, first, a jury's verdict that the public has not been injured, and, second, on the alternative ground that plaintiff failed to establish a violation of § 1 or § 2 of the Sherman Act or any other provision of the antitrust laws and did not state a claim thereunder.*fn1

Plaintiff, prior to September 30, 1955, was engaged in the business of tranferring passengers and their baggage between railroad terminal stations in Chicago and the pickup and delivery of baggage within the Chicago metropolitan area to and from railroad stations.*fn2

The defendants are (a) John L. Keeshin, and his company, Railroad Transfer Service, Inc., herein called Transfer, (b) Hugh W. Cross, former chairman of the Interstate Commerce Commission, and (c) six railroads, constituting a committee chosen by twenty-one railroads having passenger terminals in Chicago and the presidents of four of these six railroads.*fn3

The complaint alleges the matters referred to in the following two paragraphs.

Since prior to March 15, 1955, the defendants have been engaged in a conspiracy to eliminate all competition for contracts or arrangements with the Chicago railroads for the rendition of Chicago station transfer service and baggage pickup and delivery service.

Contrary to his public obligations and acting on behalf of Keeshin, Cross induced the defendant railroad presidents and defendant railroads to foreclose any competition for the transfer business, and to cause the twenty-one railroads comprising the entire market for such services to do business exclusively with a new company to be formed by Keeshin, regardless of whether the cost and terms proposed by Keeshin were less favorable than could be obtained as a result of free competition. Keeshin secured Cross' improper intervention by promises of a valuable consideration. Cross was able to induce the railroads to join the conspiracy by using his position as a member of the Interstate Commerce Commission. The railroads accepted the proposal in order to influence Cross to give favorable consideration to important railroad matters pending before the Commission. As a result, the railroads entered into an exclusive five-year contract with Transfer. The contract, by its terms, foreclosed competition for the Chicago transfer business.

Soon after the suit was commenced, certain defendants filed a motion to dismiss, on the ground that the complaint failed to state a claim upon which relief could be granted and specifically, that there were not sufficient facts alleged to establish public injury. The late Judge Philip L. Sullivan overruled the motions, and defendants filed answers.

Upon the reassignment of the case to Judge Miner, an order was entered separating the issue of public injury for trial, over the objections of both sides.

After the case proceeded to trial, plaintiff's counsel made offers of proof of conspiracy "under our complaint", because, he explained, he believed it necessary in case of an appeal. Subsequently the court permitted these offers of proof to be made but eventually the offers were, according to plaintiff's brief, "stricken from the record by the court."

At the close of plaintiff's case, Judge Miner held that, even if there was a verdict of public injury, "this case does not belong in the family of anti-trust cases under any conditions, from the entire record before me."*fn4 He made it clear that he was disposing of the case upon the allegations of the complaint and all evidence offered by plaintiff and received upon the trial, as well as the facts stated in all offers of proof made by plaintiff, regardless of whether he had ruled adversely to any of said offers. He announced that, viewing said evidence and offers of proof in the light most favorable to plaintiff, and making all reasonable inferences therefrom in its favor, he determined that plaintiff had failed to establish a violation of § 1 or § 2 of the Sherman Act or of any other provisions of the antitrust laws, and that the complaint, as amended, relating to issues other than that of the verdict of the jury, "do not state a claim upon which relief can be granted under Section 1 or Section 2 of the Sherman Act, or any other provision of the antitrust laws; * * *."

The judgment from which appeal has been taken was for defendants on the verdict, ordered and adjudged that plaintiff take nothing by its action, and ordered and decreed that the complaint, as amended, insofar as it sounded in equity, be dismissed for want of equity and judgment be entered for defendants on the equitable issues.

1. Plaintiff contends that Judge Miner erred in overruling Judge Sullivan's decision denying defendants' motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. Plaintiff's counsel speak of Judge Sullivan's opinion as "the law of the case". A reference to that opinion which was filed in 1956 makes it clear that Judge Sullivan considered only the "complaint on its face". The action of Judge Miner was the entry of a summary judgment and involved not merely the complaint*fn5 which was before Judge Sullivan, but also offers of proof and evidence submitted only to Judge Miner.

Regardless of the impact of any law-of-the-case rule, our duty is to determine whether the judgment of Judge Miner is correct. In fact, we should sustain any judgment from which an appeal has been taken if it is supported by the record and the law, regardless of whether the lower court has ruled erroneously or has ruled at all on that ground. Jaffke v. Dunham, 352 U.S. 280, 281. Obviously we cannot be expected to reverse a correct decision by one district judge simply because we find that it is contrary to a prior ruling by another district judge in the same case, i.e . contrary to the "law of the case".

2. This judgment, being based upon the complaint and plaintiff's offered evidence, did not involve a finding of any genuine issue as to any material fact. It is a summary judgment. Rule 56(b) and (c), 28 U.S.C.A. Each answer filed by the defendants asks for dismissal of the complaint. In Repsold v. New York Life Insurance Company, 216 F.2d 479, 483, we said:

"The court is authorized under the plain provisions of this rule to summarily determine whether or not a bona fide issue of fact exists between the parties to the action.A determination by the court that such issue is presented makes the rule inoperative. On the other hand, if the pleadings, and proof in the form of depositions, affidavits and admissions on file, disclose that no real cause of action or defense exists, the court may determine that there is no issue to be tried by a jury and may grant a summary judgment.

"Rule 56 does not provide any method for exactly determining the presence of an issue of fact, and so each case depends upon the facts peculiar to it. Speaking in general terms, the court is not authorized under the rule to try issues of fact but it has the power to penetrate the allegations of fact in the pleadings and look to any evidential source to determine whether there is an issue of fact to be tried."

3. Plaintiff's complaint alleges that it was ready, willing and able, and had offered to continue to engage in the station transfer and pickup and delivery business on terms and conditions favorable to the railroads and to the traveling public, but had been prevented from so doing from and after September 30, 1955 by the conspiracy described. It also alleges that the

"* * * services performed by TRANSFER pursuant to said contract have been and are more costly to said railroads and less extensive and valuable than the services previously performed by plaintiff and which plaintiff had offered to continue to perform."

We are assisted by plaintiff's brief in the following statement of offers of proof which the record shows were made by plaintiff before Judge Miner:*fn6

Plaintiff had rendered satisfactory service to the railroads in Chicago over a period of many years. In 1954, a committee of six railroads (representing each of the six railroad terminals) was appointed by the twenty-one railroads terminating in Chicago, to interview other prospective transfer carriers to see whether the cost to the railroads of providing the station transfer services could be reduced. The memorandum prepared by the committee and submitted to prospective contractors stressed that the cost of service was the committee's only concern in these words:

"We would have it known that the railroads serving Chicago have enjoyed their relationship with the Parmelee Transportation Company, and they feel that the services of each has contributed to the success of the other, notwithstanding the economic conditions are such that the railroads must not undertake to pay a greater fee for the services performed than is necessary, and because the greater portion of the transfer fee paid to the Parmelee Transportation Company is absorbed by the outbound railroad. * * *'

Negotiations were conducted over a period of months and the committee concluded that the proposals received, including one from Keeshin, were unsatisfactory and no change from plaintiff was warranted unless the transfer rate was cut 10 to 20 per coupon from $1.20. The committee report was presented to all of the twenty-one terminal railroads on February 1, 1955, and it was the consensus of opinion that there should be no change from plaintiff. The Santa Fe Railroad representative reported:

"* * * Chicago Terminal Lines were advised that we had received one bid for transfer of passengers and baggage from Keeshin at approximately same rate Parmelee is now charging, and one bid for transfer of baggage only. Chairman Padrick advised lines present that it was the view of the committee studying the transfer arrangements that a change in operators should not be considered unless, say, bid of $1.10 or $1.00 including baggage was submitted by some transfer company."

The Soo Line representative stated:

"* * * The Railway Express Agency made the statement that we were getting a good deal at present and that they would not touch the proposition for anything less than cost plus 15 percent.

"The consensus of the meeting seemed to be there would be no point in disturbing the present relationship unless we could reduce the price to around $1.00 or $1.10."

The B & O Railroad said:

"J. L. Keeshin's proposal not sufficient decrease from present cost to warrant change from Parmelee Co. Railroads worse off if must load and unload trailers."

Plaintiff was then contacted and submitted its proposal of March 15, 1955, which undertook to provide $500,000 of new equipment, reduce the coupon rate from $1.22 to $1.20 and provide for wage and traffic escalator clauses. This proposal was well received. One of the Vice Presidents of the New York Central (the largest transfer railroad, accounting for over 22.9% of the traffic) wrote plaintiff on March 24, 1955, and stated:

"I have read your proposal of March 15th addressed to Mr. Padrick, concerning the transfer service performed by Parmelee Transportation Company at Chicago.

"I see no reason why it should not be adopted by the Chicago terminal lines, as it impresses me as being fair and reasonable."

The committee considered plaintiff's proposal on March 17, 1955, and undertook to reach its decision within thirty days. The interviews were concluded.

Keeshin late in March, 1955, had a meeting with Interstate Commerce Commissioner Hugh W. Cross in Washington, D.C. Keeshin asked Cross to put in a good word for him with the railroads with whom he was negotiating. This Cross did. Cross reported to Keeshin on his talks with the railroad executives and when Keeshin was ...


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