Vicko GLAVIC, Appellant, v. Charles J. BEECHIE, District Director, et al., Appellees.
No. 21342.
United States Court of Appeals Fifth Circuit.
Dec. 18, 1964.
As a result of the activities described, plaintiff‘s drivers became apprehensive for their safety and ceased working for plaintiff. His trucking business was forced to shut down (he began driving a truck for an interstate motor freight line) and his trucks were repossessed. In the action before us he sought damages for the business loss resulting. The District Court, trying the case without a jury, awarded plaintiff compensatory damages in the sum of $15,000.00 and judgment was entered.
Defendant‘s appeal argues that there is neither warrant in the record for finding that it was responsible for the treatment of plaintiff‘s drivers and their cargoes of coal, nor for the amount of the judgment. The attack upon the judgment is based upon the contentions that plaintiff‘s business profits resulted in part, at least, from his payment of sub-standard wages under the Fair Labor Standards Act,1 combined with the illegal hauling of overweight loads of coal. In addition it is argued that his “equity” in his trucks was overvalued by the District Court.
Upon all of the matters controverted there was conflicting evidence, together with evidence in mitigation and exculpation. The District Judge heard it all, he scrutinized it with care and he rendered his judgment, giving to the various factors in testimony, pro and con, such weight as, in his judgment, they deserved. The fact situation with which we are here confronted does not vary in material principle from others heretofore considered by us. Gilchrist v. United Mine Workers of America, 6 Cir., 290 F.2d 36; White Oak Coal Co. v. United Mine Workers of America, 6 Cir., 318 F.2d 591; Allen v. United Mine Workers of America, 6 Cir., 319 F.2d 594. We have reviewed the record, and we have concluded that the findings of the District Judge were supported by substantial evidence and were not clearly erroneous.
Affirmed.
James R. Gough, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Morton L. Susman, Asst. U. S. Atty., Houston, Tex., for appellees.
Before HUTCHESON, WISDOM and GEWIN, Circuit Judges.
PER CURIAM:
This is an appeal from an opinion and order denying relief under a petition for habeas corpus filed by appellant in the United States District Court for the Southern District of Texas. This opinion, which carefully and correctly states the facts and discusses and decides the questions of law presented for decision there, is reported as Glavic v. Beechie, at 225 F.Supp. pages 24 et seq., and we approve and affirm the findings, conclusions, decision and judgment of the District Court.
In addition to the two questions presented for decision and decided below by the district judge,1 appellant seeks to present as a third question here:
“Whether the fact, if it be a fact, that the apportionment of members of the House of Representatives of the Eighty-Second Congress was in the case of certain states constitutionally defective had the effect of nullifying legislation enacted by that Congress.”
This question, which was not in any manner presented for determination or decision in the District Court, is not on the record before us presented for decision, and we do not consider it.
The judgment is affirmed.
WISDOM, Circuit Judge (concurring):
I concur in the result reached by the Court and in that portion of the Court‘s opinion relating to the first two questions the appellant presented for decision. However, I would decide the third question. I would hold that malapportionment of a part of the House of Representatives of the 87th Congress does not have the effect of nullifying legislation enacted by a Congress that is otherwise both a de facto and de jure legislative body. Texas v. White, 1869, 7 Wall. 700, 74 U.S. 700, 19 L.Ed. 227.
Failure of this Court to consider the appellant‘s third contention will not cause the Halls of Justice to fall or even to shake a little bit. There is just not enough merit to the argument. At stake, however, is an important principle. Judge Hutcheson, for the court, put it in these words:
“[W]here, as here, the case below was tried, not upon any misapprehension of the facts, but upon a misapprehension of the effect of those facts in law, appellant may not be prevented from pressing here for the application, to the proven facts, of the correct principles of law. Especially may it not be where, as here, these principles seem to have undergone a change, or at least, to have been differently stated and applied since the trial of the case below. To hold otherwise would be contrary, we think, to the plainest principles of justice.” Associated Indemnity Corporation v. Scott, 5 Cir. 1939, 103 F.2d 203, 209.
See also Commissioner v. Chase Manhattan, 5 Cir. 1958, 259 F.2d 231, 239.
I would allow either party on appeal to advance a new theory or to change his theory of the case—if: (1) all the relevant evidence is before the Court, (2) the opposing party has had adequate time to brief the point, and (3) the opposing party is not prejudicial by not having introduced evidence below that would have militated against the validity or effect of the new theory. The first and greatest of the rules is that we are a Court “to secure the just determination of every action.”