Gerard A. Harrison and Harrison Ranch, Inc., Cross-Appellants v. Carey Prather, Cross-Appellee

erations and Prather cattle business. Lawson, Moore, Harry Fred Jed W. counterclaimed, alleging that Harrison Tex., Woodliff, Houston, George Hei- F. Franks, agree- required to honor should be Jackson, delberg, & Woodliff partnership and to ment dissolve the Greenville, Miss., Douglas Wynn, C. and, partition property; that certain Miss., plaintiffs-appellees. appro- partnership property had been BELL, Before THORNBERRY trial, by priated juryA mak- Harrison.2 Judges. CLARK, Circuit seg- interrogatories use of regate jury’s on the various action Judge: CLARK, Circuit claims, verdict Har- net resulted principal role Reluctant because remittitur, verdict rison. After disputes, must nevertheless end judgment in Harri- embodied was chapter history of a add another appeal Prather and legal son’s favor. that flows bitter internecine war cross-appeal from termination that closest eventuated.3 Harrison ora) process argument court,, During was this served liam Prather Carey pellant Prather indicated that exist- home Louisiana. at his principal place im- Prather ed as William claimed that joined, corporate plaintiff, properly trial court business of Har- served Ranches, Inс., meaning appeal, af- agreed, within this court rison Prather, 1332(e) (1966), might § of 28 U.S.C.A. firmed. Harrison v. Mississippi. be in This court is with- question. out basis to resolve this factual issue below instructed the 3. The court pass Our reference here not intended to farming operations losses claimed upon issue. jury. out of the case submitted assign appearance action as this 2. This is the second of this ac- cross-appeal. appellate suit, The issue tion in the court. The error on his filed, Carey initially against the cause. therefore eliminated brother, Wil- and his William Prather. spawned Among multiplex applica- clined the loan issues because the loan primary donnybrook, incomplete, tion judicial forms weak, controversy financial the real forum focuses statement was states, relating security estate to Harri- was located two Prather’s activities part attempt the Prudential the lands were utilized in cattle son’s obtain operations consequences the a ratio and lands had low and loan in late 1964 the acreage. crops Many of the total of allotments the of declination. Prudential’s relating particular to this material fаcts trial, After its full the rendered a trial, transaction, developed are at the by interrogatories, on verdict syn- following sharp dispute, in the specific findings: which it made that opsis sufficiently frames controver- conjunction personally Prather or in sy. behalf, acting wilfully in and others his granting maliciously interfered with the genesis had its on December suit Prudential; by of a loan Prather’s Harrison and Prather en- 1963 when proximately in contributed agreement creating part- a tered into an nership part Pru- or in to the decision of whole Farms”, “P named H & loan; dential to decline that Harri- commencing year for was January organized last one son losses in connection with incurred partnership 1964. The during part operation the last his cattle farming purpose for the of part in of 1964 the first and Washington County, lands located Mississippi. 86,352 proximately re- amount of dollars During autumn of sulting of interfer- from the acts said Harrison notified Prather desire of his ence; conspiracy inwas that Prather’s partnership a for- terminate the of interstate trade. restraint agreement signed mal by to such effect was February 1, specially parties The also found on in the liable to Harrison Prather was 15, 1964, made On December Harrison wrong- 2,600 for amounts dollars application to for Prudential a loan parts equipment ful removal 1,090,000 dollars. Prudential declined wrongful for the Prather and appropriation dollars 15,1965. January make Har- the loan in connection tools rison asserts that Prudential declined partnership property and the division conspiracy loan because between for was liable Prather that Harrison its Prather and two others which had ap- because Harrison had 900 dollars object credit, destroy there- belonging partnеr- propriated feed to the by making impossible for Harrison findings ship. of these The balance sell obtain loan force him to thus sum in Harrison’s favor struck price. Specifical- his lands a reduced 88,802 ruling that first After dollars. ly, alleges his that Prather and the antitrust not violated Prather had conspirators fellow processing interfered with jury’s refusing to treble laws and application of his to Pru- loan pursuant award loan interference meddling actually dential and that this judge en- U.S.C.A. 15§ principal killed the loan. Harrison’s judgment of Harrison in favor tered tape of his fiscal ambush awas 88,802 for dollars. recording of a conversation between post-judgment motions (secretly party filed Prather Har- Prather and third stay judgment, of execu- envoy) rison’s Prather stated for relief tion, tape original stop leave to withdraw that he knew who could analysis by expert recording proval. taped further conversation alternative, judgment My- notwith- in the tended to establish that one Pickett standing new trial. or a the verdict ers killed Harrison’s loan at Prather’s leave the motion denied Prather introduced witnesses court direction. employed district recording tape and de- who testified to withdraw Prudential for relief they way motions no influenced nied Prather’s judgment notwith- judgment Myers, de- Pickett but rather that ponderance de- verdict, standing his evidence sustained Prudential fendant’s interference caused unless Harrison for a new trial motion 4 However, 43,167 to make the loan ?” accepted dollars— not a remittitur of taking objections allegedly after com- re- of counsel per of the amount cent charge, pleting observed sulting to obtain from the failure language quoted interrogatory protest, con- Har- Without Prudential loan. interrogatory which the district flicted with another filed the rison remittitur provided be affixed judgment in Harri- should entered final “proximately 45,626 con- dollars. Prather took actions in the sum son’s behalf part tributing de- whole or appeal, insists the direct On cision of Com- the Prudential Insurance thir- committed the district court pany the loan. America to decline cross-appeal Harri- errors. In the teen *(cid:127) * * # occurred. three errors son asserts here, ruling conflict between To the clear for our resolve view the basis contributing unnecessary all of the sole cause and to discuss it becomеs statements, pivotal the is standards in these two issue these contentions. change judge proposed former in- to the of the district court the ‍​​‌​‌​​‌​​​‌‌​​​‌​​​​‌‌​​​‌‌​​​‌‌‌​​‌​‌​‌​​​​​​​‍claimed error terrogatory concept his instructing jury to accord with the standard the as to determining the that Prather’s actions need be applied whether be alleged refusal to ren- caused the sole cause of Prudential’s interference Prather’s der him disapproval of loan. Because liable. adopted an

we that the determine attorney objected al- to this Prather’s gauge this critical to mеasure incorrect interrogatory on the basis teration the element the ease must be reversed and it not state correct rule in a did the un- of this issue for a redetermination making claim interference with the rule, stringent it deem der a more we contract, contending plain- of a pass upon propriate other issues two prove tiffs must that the loan would have (a) may upon recur retrial — but interference. the defendant’s profits established com- cattle future judge disagreed. petent proof (b) did the district jury, presence the Back the of the holding an- court err in the federal judge explained the announced and applicable in this titrust laws were change making. He then struck he was case? pen typed with his the word “the” out place “a”. the word inserted its A I. THE PROXIMATE CAUSE vs. declaring: He his remarks concluded PROXIMATE CAUSE changed provide question “I have the cause’, concept prob- ‘proximate It or not whether it was a the abstruse Upon de- comment cause alone that not a sole cause.” able controls but, us, cause, literally, cision in this the is- Before the retired to deliberate. sharpens position or “a” is sue to whether “the” his reasserts guide. proper proper modifier. Even within but test is the semantics, logic apt dubious ju- To if the determine verdict has led to that seldom so little observe ry issue on the contract interference of so much. downfall stand, permitted to should have been charge During judge pass upon ini- the trial must the threshold tally any would instructed the distinction can be real interrogatory required proxi- for, be to answer an or found between the pre- contributing providing: you cause, gauge from a “Do believe mate and the interrogatory typed proximate Pru- When out it ference was the Cause slightly making took different form but with an dential not the loan? meaning: identical you preponderance Do believe from a the evidence that the defendant’s inter- cause, cause, proximate plicable, or a test. Sec- defendant’s do not acts ondly, single exclusively we must determine which test be efficient Finally, apropos injury. prox- in this if there factor cause. which caused the A difference, improper implies imate cause that even if the de- here, used de- standard was we must fendant’s act had never ocсurred least, prejudicial. or, error cide whether event still could have here, interrogatory occurred. The used easily compre- While sometimes not explained by judge, is a correct specific context, hended in a factual stringent embodiment this less fault significant there is a difference between measurement. guidelines long the two law has judg- demanded that ob- It is the difference almost universal value controversy ruling served. The raised ment of coun- courts faced with emphatical- upon sel before us now more claims based interference ly, chang- for, making contract, of the the action language interrogatories cause, proximate of the or the test must be the significance explaining then applied.5 proposition its jury, clearly attest been most fact. stated as follows: cause of It is essential to a action for, The but wrongful with business cause, imposes greater that, appear except it the tor- that for proof upon plaintiff burden of than the defendant, of tious interference the proximate a does an cause instruction. probability that there was a reasonable requires plaintiff prove The former a to plaintiff into entered the would have only event, not an that act an caused * * * profit. a or made a contract that event not the would have occurred parties a entered into the have “When without, for, wrongful or but the act. fixed, contract, of the terms which are Wilkins, Kramer v. Service 184 Miss. only required plaintiff to show is the (1939). 483, 186 So. 625 This stricter and the the malicious interference attempt say not that damage resulting; proximately where- may many there not be an causes ground as, complaint is that of the but, rather, event it declares that unless contract, a he is to make he was about wrong can be shown that the not would go required further show-that not have occurred had it been for the would, to,’ only he was not ‘about particular question, action in then there but for malicious interference the liability. is no Fant Commercial Car v. defendants, into the have entered the riers, 474, (1951). Miss. 887 210 49 So.2d * * * “There must be contract.” The but rule a rule of ex constitutes certainty plaintiff the would some e., clusion, i. it excludes from the ambit gotten contract but for have responsibility all acts and omissions left to surmise cannot be fraud. This producing injury or contributed to Feinberg, speculation.” Goldman damage it unless can be shown that (1944). 355, A.2d 356 Conn. 130 37 wrong happened not would have given An in absence those causes. logic narrow applying this The terrogatory phrased in accordance with in the gauge recovery is be found though specify, alleged. plaintiff The nature the tort many words, expressed not in so seeking re- is not jury could not affix unless something the defendant because ceived found that without acts Pru Prather’s exist- established and has harmed his did approved have the loan. dentiаl would contrary, ing right, but, because hand, received. proximate expected was benefit On the other the a unspoken hypothesis is —I would pathway cause test a broader His establishes agreement I was liability. yardstick is have benefited When (1935). 12 90 A.L.R. phrase judge’s charge, preparing to make if the defendant had of the trial we Thus, disagree courts must did. most as- as he with the defendant’s acted plaintiff in such this error was sertion harmless. have reasoned prov- spectrum In the af- bear the burden wide of decisions an action must fecting sep- proximate cause, de- fоrce which we efficient profit anticipated veloped body him dialectics arated given charges, boilerplate defendant’s tortious interven- us some many logically dis- of which become tion. omission, torted addition or by which we are rule rearrangement single word action, diversity it has in this bound Moreover, proximate phrase. cause Richards, Bailey declared in been concepts one de- the more elusive Miss. So.2d veloped by jurisprudence. phil- our Its majority harmony rule. osophic dif- articulation believing jury was warranted enough jury apply ficult for a em- ex- appellee reasonable had a pirically under circum- best being pectation con- contract’s of the giv- When instead stances. except the influence and summated being conflicting instructions, en first (em- appellants, of the proximate told that more than one added). phasis being may cause exist and then told determining the difference every plaintiff must exclude standards amounted between two proximate in or- other efficient cause bar, case reversible error recover, impossi- it is we think der largely guided recent decision are jury obeyed ble to assume that the Dingwerth, F.2d 378 in Bender v. rejected former and the latter when charge 1970), where negli- the defendant’s found proximate an a cause—sole contained gence proximate cause Bender was conflict. be- death. Bender’s distinction malpractice diver- based medical Texas proximate “a cause” and “sole tween proximate sity cause the a action and legal philologist’s proximate cause” is dealing proper. We are standard was nightmare. hardly expected It could substantially of Bender the converse lay jury comprehend and that a there, confusion could in the sense apply correctly such a distinction great a permitted too burden have conflicting inadequate- the fact of plaintiffs; imposed upon the to be ly by the court. defined instructions case, the court’s em- in the instant imposed phatic too lit- final sum, Mississippi con charge given of the entire A review tlé. majority preponderant curred the con- case at bar reveals that declaring that in con of other forums proximate standards fusion of cause tеst cases the tract interrogatories. not limited to the clearly applied. is to be The case law announced the “but instructions Some recognizes distinction between test; in terms others were worded for” proximate cause criteria. imposing if the defendant’s jury have been instructed should proximate causes action was one apply proper test. Since Therefore, being made. of the not, remand for a we must reverse reasoning harmfulness Bender’s on the new trial. giving an incorrect retired, must be action Because the directly point. guidelinе cause judicial husbandry Goldberg court, indicates Speaking Judge sound for the presented rule now stated: on those issues re- probably recur on such will hopeful which Indulging as we must every parses hypothesis trial. 1174 computation sonable basis for and the LOST PROFITS

II. ESTABLISHING best evidence which obtainable un- Although Mississippi cas- a number of case, der the circumstances of the problem of dam- dealt with the es have which will trier to enable the arrive at ages profits, to lost due approximate a fair estimate of loss ‍​​‌​‌​​‌​​​‌‌​​​‌​​​​‌‌​​​‌‌​​​‌‌‌​​‌​‌​‌​​​​​​​‍is recognized jurisprudence by Mississippi procf. sufficient largely entirely be- clear. The Federal no less strin- standard is Montgomery precedent, of a 1935 gent. Sylvania Products, Inc. Electric v. Hutchinson, 173 Miss. Ward and Co. Flanagan, 1965); (1st 352 F.2d 1005 Cir. 862, (1935), allowing 159 863 So. Alexander, United States 736 recovery prospective profits, where course, if either Of court ruled: standard favored the admission of such Appellant suggestions of sev- offers evidence, it would be admissible. Rule contingencies possibilities eral 43(a), review of Fed.R.Civ.P. Our might happened defeat have record, however, despite indicates that any profits. jurisprudence, Under objections numerous the defendant speculative the rule as damages uncertain rulings court, limiting and several uncertainty apply damage proof did not meet profits to the amount either standard. * * would have been derived *. trial, At Harrison established loss Subsequent cases, apparently while following profits by of future of the use overruling specifically Hut- timorous formula: chinson, freighted certainly bur- plain- imposed type den a Hutchinson Capacity of farms for new speak more These recent cases tiff. during cattle allowing 1964-65.... 3500 head only terms actually bought Cattle dur- profits rea- which are ascertainable with head 1964-65............1276 certainty. g„e. United States sonable See head Cattle 2224 short............. Barber, Finance Co. v. Miss. Customary losses, 68 head death (1963) Mississippi Power %.. So.2d per average Price calf Harrison, lb. 152 So. Co. v. 247 Miss. per pound, plus at 15 cents (1963). In the es- 2d 892 the latter case veterinary, feed, 105.00 etc.......$ quantum proof sential declared to per 147.00 Sale Price fatted calf.... $ and not on be that “based on sound fact per Profit 42.00 fatted calf........$ opinion factual mere support evidence * * cases, profits *. In tort (after deducting Lost Profit remоte, speculative uncer- which are customary loss)... .$86,352.00 death damages tain are neither an element of damages.” nor evidence of using propriety this formula of argued proving damages of was method Mississippi So while has made it length chambers, time the at which perfect clear that the lack of a measure judge expressed concern with his damages preclude of does not proof in such these words: damages, it the most does hold that * * * accurate and reliable evidence available you just say had to required prove anticiрated should be to bought money you * * profits. Koehring Company From cattle, number of of certain head Hyde Company, Construction 254 Miss. bought you and that if could have get 178 So.2d we you kept a cer- herd, it for would have * * * this statement: length and of tain time. * * * * * * you party period could have will not then at a certain prof- permitted escape be a certain to herd because sold the and made * * * like it of perfect the lack of looks to this Court measure of it * * Therefore, speculation. pure a rea- is *.

H75 However, ever Harrison contended that bе- such documentation show that knowledge personal produced. of of his vast fact business, qualified him the cattle which between no inherent conflict There is testimony give expert opinion to the rules best rule evidence personal field, had and because he permit admission which evidence knowledge specifically of what he had testimony. expert true because is This done with the twelve hundred and seventy-six knowledge opinion upon and ex- an perience based pur- to cattle he was able supply to fact not is admissible chase, any spe- he should not be tried reasonably proof For available. which is cific On the basis that show- records. expert although Harrison, considered ing surrounding pur- the facts testify simply field, in the cattle processing hun- chase of the twelve opinion, records his when actual seventy-six dred and tually cattle Harrison ac- purchased happened cattle what period required handled in this very processed lands was on these give in order to a best obtainable evi- unavailable, does not sat- not shown proof, judge dence sus- basis isfy evidence basic tenet of objections the bare tained Prather’s degree highest proof which a case springboard use the formula as a produced. susceptible must be expert opinion. which to launch Green, rule. Storm Notwithstanding objec- these initial (1875); King for Use v. State Miss. 103 ruling, al- Acceptance tions and Harrison was later and Benefit of Murdock testify expert lowed as an to estab- Miss., (1969). Corp., It is 222 So.2d profits, objec- lost lish over a similar Allen v. well. the federal standard as by Prather, on the Co., tion basis Milling F.2d Alfalfa W.H.O. alone, supplying formula records figures (10th Cir. upon which various formula retrial, not should On сosts, as to prices losses only sales unit death opinion, ex to substitute be allowed sup- were based. record though may be, ac pert when plied ledger, of a sheet out was a cogent is avail more facts that are tual used to showed purchase total dollar amount ruling is produced. This able and designat- cattle in 1964 without showing any preclude intended to bought any the number of cattle purchases use or other that other cattle other which substantiated for- facts vari introduced could have funds mula. actually operations he ants the cattle time declared The trial court this are of that sort Decisions conducted. . proffered testimony sufficient was right the discretion committed light to cross- of Prather’s conducting here rule the trial. What facts disclosed examine Harrison on exist, those records that' if basic fact operating records. actual records, opinions to what reasoning thing, But for one been, eviden should form could have reasoning sup- analogous to introducing content tiary their basis ports procedure followed sometimes into this cause. expert approved in summa- which аn RECOVERY. III. ANTITRUST accountant, may ry witness, such an as judge, ain district produce which actual records interrogatory, to the submitted summary then testi- distilled been alleged conspira leaving fy summary of whether alone, cross- to the cy the Prudential probity to interfere with supply that examination to or trade interstate acceptable restraint as was makes his condensation responded affirma However, commerce. an of facts. essential tively. opinion, a In procedure well-reasoned in this cannot be found element conspiracy had that the trial ruled claims that in the at Prather case bar. only interstate on com a residual produced effect these had not been documents merce, and, reason, de subpoena under the rule response duces to a either in damages federal under the judge’s nied treble or the clear tecum -specifically, production, 15 U.S.C.A. and the record fails antitrust laws—

1176 Young, at cross-appeals 308 F.2d 235 (1963). Association v. Harrison 15§ (5th Cir. asserting antitrust 240 point, this plaintiff applicable when laws are alleged en- to have of trade proves restraint an unlawful per gaged any practice se considerеd a agree damages. personal We price fixing, di- e. antitrust violation —i. application of boycotts ty- the lower court group markets, or vision prop- principle of law are, was a matter ing arrangements. These activities erly by and that the court decided more, unreasonable considered recovery. triple correctly denied competition and violations restraints prohibition. become law’s as it has reason The rule of Co. Oil forth in set Standard known was agree We do States, Jersey 221 U.S. v. United of New recovery of treble contention that (1910). It 502, 619 1, 55 L.Ed. 31 S.Ct. upon proving depend does not expounded in approved has been proposition public injury. But the example is A concise numerous cases. possible if an individual following language Northern damages, personal purely does proves Railway States v. United Pacific Co. necessary re element of establish the 4, America, 514 at 1 at 78 S.Ct. 356 U.S. Harrison’s author commerce. straint of (1958): 517-518, 545 2 L.Ed.2d entirely per se violation consist ities ‍​​‌​‌​​‌​​​‌‌​​​‌​​​​‌‌​​​‌‌​​​‌‌‌​​‌​‌​‌​​​​​​​‍designed involving Act or activities eases cases “The Sherman mo comprehensive of econom- had a charter their and character nature be example, tendency. See, liberty preserving nopolistic free at ic aimed Gas, Burners, Peoples competition the rule Inc. v. unfettered Radiant 656, premise Company, Light 364 U.S. It and Coke trade. rests competitive 365, (1961). 358 Such interaction 5 L.Ed.2d unrestrained 81 S.Ct. tendency present yield monopolistic allocation forces the best will resources, the lowest our economic the case at bar. highest prices, quality and the express conclusions are best Our greatest progress, at while material following excerpt from the ed providing an environ- same time opinion: court’s preservation of ment conducive summary the Court does not feel political in- and social our democratic damage statute should the treble premise But even were stitutions. literally un- construed to achieve unequiv- policy open question, Para- reasonable results. competi- ocally Act is laid down Pictures, Inc., al, F.Supp. mount 115 et prohibits And to this end tion. 312, 45, E.D. Penn. S.Ct. [75 * * * contract, ‘Every combination 405, Aff., 211 F.2d L.Ed. 653] conspiracy, or restraint of trade Cert, Nor denied 348 U.S. 828. among commerce the several States.’ acts antitrust the Court feel literally Although prohibition any remedy torts provide and all all-encompassing, con- the courts have may commerce. effect interstate only precluding con- those strued it as Crumboch, 821 at Hunt 325 U.S. ‘unrea- tracts combinations which 267, 826, 1954, 89 L.Ed. 65 S.Ct. sonably’ competition.”' restrain meant antitrust laws were never “The clearly committed to the Circuit wrongs”. panacea all Parme- application principle of of this rule as a Keeshin, Transportation lee Co. v. et law. al, 7 Cir. The Rule of Cert, Construction is the Rule of denied 368 S.Ct. [82 U.S. Reason, requires interpreta- sub In the case 340]. L.Ed.2d light tion public policy of broad judice on residual restraint isolated favoring competition condemning by the con- interstate commerce caused monopoly. The courts are to decide disgruntled spiratorial partner act of significantly conduct significantly inter- has not affected reasonably anticompetitive in charac- commerce, state and has tended ter or effect. North Texas commerce, Producers monopolize any line fall does not within therefore damage statute. bounds of treble Plaintiff, DUNHAM, T. Kenneth Appellant, remand, to the antitrust all reference On be excluded. claims should Jr., al., Defendants, CROSBY, Philip et B.

IV. OTHER ISSUES. Appellees. using spe- again Here the wisdom of 7682. No. interrogatories complex in a fac- cial proven. Judge Appeals, situation is tual See Chief United States Court First Circuit. concurring opinions Brown’s in Horne Georgia Co., Southern & R. R. Fla. Dec. (5th 1970) and Little 421 F.2d 975 Cir. Co., v. Bankers Life and Cas. answers interrogatories concerning all is- than sues the cause other the loan in-

terference matter free from error.

areWe therefore enabled to affirm the

judgment on the various other items of

damage interrogatories covered in these

and eliminate these claims from consid-

eration on remand. We do not reach of whether court’s ac- ‍​​‌​‌​​‌​​​‌‌​​​‌​​​​‌‌​​​‌‌​​​‌‌‌​​‌​‌​‌​​​​​​​‍providing tion in a remittitur as an alter- appealable

native to a new trial was still plaintiffs

after entered their remittitur protest. inappropri- deemWe prior

ate to now comment on the refusal

of the trial court to allow the defendants analyze original tape recording,

except to observe that the matter was

one committed to the court’s discretion. way knowing We have no what fac- may weigh against

tors in favor' of or appraisal

such an piece of this critical

of evidence on remand or even whether analysis again sought. We, will there- fore, leave the initial resolution

issue, arises, if it court without

comment. part, part

Affirmed in reversed in

remanded. REHEARING

ON PETITION FOR

AND REHEAR- PETITION FOR

ING EN BANC

PER CURIAM: Rehearing is denied The Petition Judge panel ‍​​‌​‌​​‌​​​‌‌​​​‌​​​​‌‌​​​‌‌​​​‌‌‌​​‌​‌​‌​​​​​​​‍nor no member of regular Court active service

having polled requested the Court be (Rule rehearing banc, en Federal Procedure; Appellate Local Rules of Rule^l2) the Petition

Fifth Circuit Rehearing Banc is denied. En

Case Details

Case Name: Gerard A. Harrison and Harrison Ranch, Inc., Cross-Appellants v. Carey Prather, Cross-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 9, 1971

Citation: 435 F.2d 1168

Docket Number: 29023_1

Court Abbreviation: 5th Cir.