*1 testified, corre- by dep- losses of business to Curtin and Benjamin Fisher Products, testimony osition, sponding gains by His for Foremost. Scientific company on his their losses were the effect otherwise to show that was limited to Products. practices. caused Products’ competition by Scientific Scientific of Further, practice of Sci- specific only In view disposition issue, of our this brought out as that was Products entific it is unnecessary to appellant’s discuss difficulty was Scientific’s causing Fisher contentions. The is af- on non-exclu- offering price discounts firmed. Fisher did not point, sives. Even on business, loss of specific testify as to merely but stated: it has made
Well, opinion, my opportunity for us to have
difficult needs because serve the customers’ deal, a better total he feels has get he could
including the items that us.
Larry FRY, William Petitioner-Appellant, by such level price has a better [H]e hence, and, we don’t arrangement, an get the business. ESTELLE, Jr., W. J. Director, Texas Department Allen, Corrections, the economic Finally, Dr. John Respondent-Appellee. Foremost, extensive- expert for testified Dr. Allen as to But Curtin’s losses. No. 74-4253. that he admitted on cross-examination United States Appeals, Court of causation; is, testifying was not Fifth Circuit. various could have resulted causes same losses. Feb. 1976. noted, burden As we have Foremost’s in this suit was to substantial illegal practices by Scien
evidence that cause of
tific Products were a material injuries. Corp. Zenith v. Ha
their zeltine, Radio 100, 114, (1969); Terrell v.
Household Goods Carriers’ 1974); Boeing Co. v. (5th
F.2d Cir. (5th 374-75 Cir.
Shipman, 411 F.2d the tri
1969) (en banc). agree with We to do so. We they
al court that failed incumbent on
recognize that it was not alleged prac
Foremost to show that the ex were the
tices Scientific Products losses, only but
clusive cause None cause.4
that theless, were a material
the evidence fatally
on causation is both scarce an having introduced
general. Despite exhibits, Foremost
enormous volume of specific
failed to indicate and document Correspondingly, 4. course, appellee Terrell, appellant’s for the feat cause of action. su- not, itself, show other pra, causes would de- 494 F.2d *2 was af- of conviction judgment the dissenting. con- The
firmed, judges two state the burglary, for viction was a Fry to term of trial court sentenced years. for imprisonment twelve in the criminal evidence admitted The and motion to objection Fry’s trial over items, included, a among suppress in burgla- a taken Band Radio” “Citizens Texas, sev- and some Falls, at Marble ry a burglary in another rings stolen enteen bur- The second thereafter. short time Leaf Leaf Nur- the glary of Green Austin, Texas, January on sery in Presley of Marble J. A. Marshál City in that burglary the Falls, investigating on January town, received information Johnny Yonnie from one house, staying in Yonnie’s been Fry had some of the Yonnie shown and had Ward, Weldon, Tex., Mark S. Staff burglaries, which the “loot” from two Inmates, George Counsel for A. Schar- rings, some radio and included men, II, Inmates, Staff Counsel for placed in the “loot” had been Huntsville, Tex., for petitioner-appellant. automobile Corvair brown back Finnell, Griffin, Merrill John P. Asst. Yonnie also tags. California which bore Tex., Gen., Austin, for Attys. respon- Fry was contem- Presley that informed dent-appellee. burglary a plating sometime “soon” Burnet, in Kuykendale’s Drug Store Mar- showing that There was no Texas. past on had in the relied Presley shal nor from Yonnie information Judge, Before RIVES showing that the information GEE; Judges. Circuit credible, other by Yonnie was furnished acquain- RIVES, that, Judge: judging Circuit than that Yonnie time during tance short appeal This is from the district court’s Falls, Presley con- Marble had lived in prisoner’s denial a state petition for trustworthy. him sidered corpus. habeas The only issue e., at 2:00 whether, i. about circumstances, promptly, under the Presley 24, relayed to Marshal January warrantless search petitioner’s auto- P.M. on Texas, the Burnet, mobile informa- was reasonable. That informa- tion Yonnie. furnished The vel non reasonableness of this sufficient, unless not probably tion was ably same search has been discussed corroborated, for either mar- and until several Judges of the Court of warrant or a obtain an arrest shal to Appeals Criminal of Texas on Fry’s ap- magistrate; a warrant from search peal from the of conviction. a warrant. to obtain no effort was made Texas, 1972, On At about 1:30 original hearing, the search was held A.M. on January 25, unreasonable, reversed, 1970, Shelburn, the judgment Marshal while patrol on Burnet, case in remanded. The State’s observed an automobile fit- denied, first motion for ting description, parked alley rehearing judge dissenting. drug State’s second behind the He store. knew that motion granted rehearing was automobile been had not there at his friend, confederate, previous relative, patrol even about fifteen minutes if earlier. himself had se- Marshal Shelburn called dep- uty, -prior cured his Patrol, release bail to the Highway and Marshal time the Presley have officers could executed the scene. The exits of the alley written affidavit blocked and contacted cars of Mar- magistrate. It should be deputy, Shelburn and his remembered and a con- *3 that the stant incident in question kept surveillance was occurred until all the at approximately officers 1:50 a. Clearly, arrived at about 1:50 m. A.M. Mar- exigent circumstances were approached the vehi- which justified cle would have Fry lying found war- the back seat search, rantless partly being probable covered or covered a blanket. cause to search. car, ordered out of the placed arrest, under charged with violating “If the car placed had been under a Texas statute which was then Article or guard removed impounded at 14.03 Vernon’s Ann.Code of Criminal police station until a search war- Procedure. rant had been procured, then this in- trusion just great would as have been ap- facts of the assessment In our as the warrantless search of the car of the principles of established plication trunk in the alley.” with seizure, agree we search and law of of Pre- opinion following part of person The search of and of the Texas Court of the siding Judge Onion interior of car did not extend beyond Appeals: of Criminal the limits indicated in Chimel v. Califor arrest valid to incident “A search nia, 1969, 752, 2034, 395 U.S. 23 14.03, supra, en Article pursuant L.Ed.2d 685. The warrantless search of a search revealed Such sued. justified the car trunk ples princi as such a radio mounting bracket Maroney, announced in Chambers v. rings ring or sought. A being 1970, 42, 50-52, 1975, 399 at 90 U.S. S.Ct. of such a result as found 419, 26 L.Ed.2d and followed this Cir of in point thisAt search. incidental cuit Soriano, 1974, in United States v. by the related fact every terception, 497 F.2d 147. The case is closer presence informer, except the to' Chambers v. Maroney than to Cool described, ver merchandise stolen idge 1971, v. New Hampshire, 403 U.S. v. Draper United Cf., g., e. ified. 460-464, at 91 29 S.Ct. L.Ed.2d 329, 3 307, 79 S.Ct. States, 358 U.S. 564, and we have not failed to observe State, v. Rangel (1959); 327 L.Ed.2d the warning that “The word ‘automobile’ is not a talisman in Al (Tex.Cr.App.1969); 924 444 S.W.2d presence whose 921 State, S.W.2d mendarez Fourth Amendment away fades and dis cer officers (Tex.Cr.App.1970). appears,” at S.Ct. evi to believe cause tainly had 2035. The in the was concealed of crime dence Affirmed. automobile. Judge (special- R. JOHN before, the juncture, “At this if not concurring): obviously probable had cause officers to search the vehicle for all of all of the result and I concur independent of the property, stolen Judge Rives. I the Court opinion for arrest, provided search incidental record, the basis of think on required by were not law to first by the case given treatment careful the cir- a search under secure warrant Appeals whose of Criminal Texas Court cumstances. embrace, there quote we opinion to this cause no real merit car was left “If the officers had summarily affirmed have been should street or al- public unattended on the on the calendar the case placing without easily moved ley, it could have been argument. by a for oral jurisdiction locality out of the