Petition for Writ of Certiorari — Gulf Oil Corp. v. Lehrman

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

hart esr ,

c.iAar COURT, U. a

IN THE

Supreme Court of the United States

OctTosBerR TERM, 1974

NO 74-765

GULF OIL CORPORATION, Petitioner

KENNETH LEHRMAN, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JOHN E. BAILEY

CATHERINE C. McCCULLEY

Attorneys for Gulf Oil Corporation,

Petitioner

P. O. Box 2100

Houston, Texas 77001

713-226-2141

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

Pave

OPINIONS DELIVERED IN COURTS BELOW ..... ; 2

PURPA PEIN ARs SHANE E vase ccsccensevasenss 2

SPUR WUMIID PUREIOUN EMRE oon aes cescveccccsansncens 2

PRP BUNS BUCTRMVOIED Geb von nb ccc tedecieusbcccenves 3

REASONS RELIED ON FOR ALLOWANCE OF THE

aca Kkade Sah k a 565 SAME GKKS AO NS Chek se b> aa O 8 5

Ee Ser ae ee ee 21

CRE SEER GO URW cite es dvaerensaiiuesans 21

OEE oye cca Gah pw Kudisch ck Ca kak bo ein 23

UE ESN SRWA Kuh ee Kee RKO Rass Nee ae OK ea’ 25

DE aaa a ee ry er ee ee 49

LIST OF AUTHORITIES

CASES Page

Albrecht v. Herald, 452 F.2d 124 (&th Cir. 1971)........ 5,8, 10, 11

Batsell v. United States, 403 F.2d 395, 400 (8th Cir. 1968).

ih. Ah Oe Ae, BO COUOD nance oncsacesaanencss 14

Cape Cod Food Prod, v. Nat} Cranberry Ass'n. 119 F.Supp.

pe AGP RENEE, OR RO Dx cans 1a boew SAG ad SS Kae a 15

Carpa. Inc. et al v. Ward Foods Inc. (W.D. Tex. CLA. No.

Cee AA Ad ak 3a asa ke eA eae OSs ek 15

City of New York v. Sage, 239 U.S. 57 (1915).......... 20

City of San Antonio v. Westinghouse Electric Corporation, °

et al (W.D. Tex., C.A. 3064, Sept. 9, 1964) .......... 15

Farmington Dowel Prod. Co. v. Forster Mfg. Co., 421 F.2d

ek Oe cee kak bane cd ORDA DANA Saka Kes cine 5.10

Fritz v. Pennsylvania Railroad Company, 185 F.2d 31 (7th

oe ADR tit ee Pitas Ck ATES SO ORK eS Ske ew 14

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972)......... 19

In Re Multi District Vehicle Air Pollution 1973 CCH Trade

Cee Re Pee Ce Se. ROE) ace cada sauseacwannees 19

Ithaca Trust Co. v. United States, 279 U.S. 151 (1928)... 20

Labarge Water Well Supply Co. v. United States, 325 F.2d

oe eA ee eee eer ree er ere 14

CASES Page

Maynard vy. United States, 215 F.2d 330, 330 (D.C. Cir

FPR RENN Wh ka ERE Y RV OG ORC Oe Coen: 14

McGinnis Piano & Organ Co. v. Yariaha Int'l. Corp., 480

F.2d 474 (8th Cir. SPEED Sa ceiedekan ince civ tos 5,10

Rea v. Ford Motors Co., 355 F.Supp. 842 (W.D. Pa. 1973) i5

Simpson vy. Union Oil Co. of Calif., 411 F.2d $97 (9th Cir.

sn ind, RE Ee nT ee 5,10, 20

Standard Oil Co. of Calif. v. Moore, 251 F.2d 188 (9th Cir.)

cert. den., 356 US. 975 (1958) ................... 5, 11,19, 20

Terminal Railroad Association of St. Louis vy. Howell, 105

F.2d 135 (8th Cir. 1948) .......................... 14

United Electrical R. & M. Workers v. Oliver Corporation,

Re Wee REO COR OW PRESS oe ck gai se 14

Vandervelde v. Put & Call Brokers & Dealers Ass'n. 344 F.

OA POW CRORE, POPES i iieicsaescenccks cle, 5,10

Viking Theatre Corp. v. Paramount Film Distributing Corp.,

1901 C.C.H. Trade Cases, 70,051 (E.D. Pa. 1900) .... 15

Williams v. United States, 328 F.2d 256 (8th Cir. 1964)... 14

Woods Exploration and Producing Co. v. Aluminum Co. of

America (C.A. No. 14,669 S.D. Tex. Hon Div. Ga)... 15

UNITED STATES STATUTES

bth ORS | BEEPREM AR CM reacties: Surat ienpnt SE den ha 3

picts Ble, <p MOE OE OO RP ae AE Oe tener 2

SUPREME COURT RULES

Rule 19(1)(b) EE ee Pete eee ee ee 2

TEXTS

9 Wright & Miller, Federal Practice and Procedure $2509 at

SOE BONE Vsdabercie i cnres lseeetie oee ae 13,14

MISCELLANEOUS

E. Timberlake, ¥ederal Treble Damage Antitrust Actions,

ROW e ME SU ONENe CRUMOD osc ngs eek ov ene coe he. ca 14

struction of All or Part of a Business” ................ 14

J. Brown, Federal Special Verdicts: The Doubt Eliminator,

ew We OEE anes na canVanna Chchisn ee utes 14

Webster Dictionary, Second College Edition, p. 1139 ...... 8

Supreme Court of the United States

Ocros! R TERM, 1974

Pero enacts centecaan

GULF OIL CORPORATION, Petitioner

KE*INETH LEHRMAN, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

TO THE HONORABLE WARREN E. BURGER,

Chief Justice of the Supreme Court of the United States,

and the Associate Justices of the Supreme Court of the

United States:

This is a petition by Guif Oil Corporation for a writ

of certiorari t» review a judgment of the United States

Court of Appeals for the Fifth Circuit entered in the

above case.

1. Opinions Delivered in Courts Below

The United States District Court for the Western District

of Texas, Waco Division, did not Write an opinion in the

first trial of this case. The opinion of the United States

Court of Appeals for the Fifth Circuit Which affirmed the

trial court’s judgment as to Gulf’s liability and reversed

and remanded such judgment as to the amount of Plain-

tiff's damages is reported in 464 F.2d 26 (A copy of the

pertinent part of that opinion is attached hereto as Ap-

pendix C). Upon retrial of the damage issue pursuant to

the Court of Appeals’ instructions, the United States Dis-

trict Court for the Western District of Texas, Waco Divi-

sion, did not write an opinion. The opinion of the Court

of Appeals affirming trial court's judgment on the damage

issue and is reported in 500 F.2d 659. (A copy is attached

hereto as Appendix B).

2. Jurisdictional Statement

The order by which rehearing was denied is dated

November 5, 1974. and the judgment sought to be

reviewed is dated Septembe: 11, 1974, but it was not

issued until after consideration of the petition for rehear-

ing. (Copies of the order and judgment are attached here-

to as Appendix A). The statutory provision believed to

confer on this Court jurisdiction to review the judgment

in question is Section 1254 of Title 28 of the United States

Code, as well as the provision of Supreme Court Rule

19(1)(b).

3. Questions Presented

a. Whether the court's charge to the jury on the

measure of damages in an antitrust case invited or per-

mitted the jury to make an improper duplicative damage

award.

b. Whether the jury should be informed of the treble

damage feature of the Clayton Act, 15 U.S.C. 15.

¢. Whether an antitrust plaintiff has met his burden

of proof insofar as the measure of his damages is con-

cerned if he does not produce “yardstick type” evidence

as directed by the Court of Appeals in its first opinion.

d. Whether an antitrust plaintiff should be permitted

to testify as to his age, health and desire to stay in business

to evidence the duration of future profits.

e. Whether evidence based upon facts and events

which occurred after an antitrust plaintiff abandons his

business is admissible with regard to that plaintiff's

measure of damages to his business.

4. Statutes Involved

The statute of the United States, the interpretation

and application of which is involved. provides as follows:

“Any person who shall be injured in his business

Or property by reason of anything forbidden in the

antitrust laws may sue therefor in any district court

of the United States in the district in which the

defendant resides or is found or has an agent, without

respect 10 the amount in controversy, and shall

recover threefold the damages by him sustained, and

the cost of suit, including a reasonable attorney's

fee.” (15 U.S.C.A. Sec. 15)

5. Statement of the Case’

During the period from 1959 to 1967, Respondent

Lehrman operated a service station in Mart, Texas, and

1. Footnote references are to a portion of the record below which

has been transmitted to this Court by the Clerk of the Court of Ap-

peals. References to Appendix Vols. I and II will appear as App. Vol.

sold gasoline under the Gulf brand name. After he aban-

doned that station in 1967. he brought an antitrust: suit

against Petitioner Gulf Oil Corporation. In the second

trial in this cause, which was limited to the measure of

damages incurred by Respondent. the jury returned a

verdict for $40,006.00 which was trebled by the court

and judgment was entered in the aniount of $120,000.00.

a. During the course of the trial the jury heard evi-

dence and argument pertaining to future profits, goodwill

value, going concern value, the value of stock and equip-

ment and fair market value as such related to Respondent's

service station business. Over Petitioner’: objections,” the

trial court instructed the jury that

“Our iaw permits the jury to take into account both

any damages which may have been inflicted on exist-

ing property and the damages which may have been

Sustained as a result of being unable to make profit

which may reasonably could have been (sic) antici-

pated and would have been realized if it were not

for the violation of the antitrust laws.”

Gulf believes that this charge has invited and permitted

the jury to :ender an improper and duplicative damage

award.

b. In attempting to prove his measure of damages, the

Respondent did not submit evidence which met the re-

quirements of either of the traditione! theories of damages

in an antitrust case—the “yardstick” or “before and after”

theories. Although respondent sold three grades of gasoline

at his place of business, Respondent simply showed pro-

2. App. Vol. I, pp. 12-19, 42-43.

3. App. Vol. I, p. 35.

Sennen

jected costs and sales volumes. and receipts for two grades

of gasoline.

c. Gulf requested the trial court to instruct the jury

that any damages it awarded would be trebled by the

court.’ Respondent opposed this request and the court

refused, over Guif’s objection, to inform the jury of the

treble damage feature provided for in the antitrust laws.

d. Over Gulf’s objection, Respondent testified as to

his age, health, and desire to stay in business to evidence

the duration of future profits.

e. Over Gulf’s opdjection, Respondent introduced evi-

dence of events and facts which occurred after he aban-

doned his service station business to support his allega-

tions of lost future profits.”

6. Reasons Relied on fer Allowance of the Writ

1. Every other court considering a jury charge sub-

stantially siinilar to the one used by the trial court in

this case, including the Eighth, the First and the Ninth

Circuits and the District Court of the Southern District

of New York. have reached the same conclusion, namely,

that such a charge invites and permits a jury to award

duplicative damages.” Tiie contested portion of the trial

court’s charge reads as follows:

4. App. Vol __. pp. 20-21, 28-43.

5. App. Vol. _, pp. 23-27.

6. Albrecht v. Herald, 452 F.2d 124 (8th Cir. 1971): McGinnis

Piano & Organ Co. v. Yamaha Int'l. Corp., 480 F.2d 474 (8th Cir.

1973): Farmington Dowel Prod. Co. v. Forster Mjg. Co., 421 F.2d 61

(Ist Cir. 1970): Vandervelde v. Put & Call Brokers & Dealers Assn.,

344 F. Supp. 118 (S.D.N.Y. 1972); Simpson v. Union Oil Co. of

Calij., 411 F.2d 897 (9th Cir. 1969); Standard Oil Co. of Calif. v.

Moore 251 F.2d 188 (9th Cir.) cert. denied, 356 U.S. 975 (1958).

“Our law permits the jury to take into account both

any damages which may have teen inflicted on exi-*-

ing property and the damages which may have been

Sustained as a result of being unable to make profit

Which may reasonably could have been (sic) antici-

pated and would have been realized if it were not

for the viclation of the antitrust laws.”

The Court of Appeals has ruled that the above quoted

language does not invite or per ait duplicative damages.

The effect of such a drastic ©. -arture from previous

precedents should not occur without this Court's review.

The stated reasons underlying the Court of Appeals

refusal to hold that the above quoted language was im-

proper are as follows:

(a) Principles of sound judicial administration require

that the charge be affirmed because an earlier

panel of the Fifth Circuit Court of Appeals, in

previously remanding this case, explicitly identified

only one detect in the trial court's charge. “Until

revised by higher authority,” all panels of this

Court should “respect” the quoted charge so that

trial courts can feel secure in following the earlier

panel’s mandate,’

(b) The use of the charge in the second trial was

“appropriate,” presumably as a matter of law. and

“clearly harmless to Gulf” because the appellate

court drew inferences from the evidence which per-

suaded it that the word “property” in the charge

referred only to “tools and equipment,” though the

7. Reierences to the Opinion of the Court. of Appeals appear as

App. B, p.__. See App. B. p. 33.

S. App. B, p. 35.

Court of Appeals while so ruling admitted that,

despite the inferences, a “clarifying definition of

property might have been appropriate.”

Court o. Appeals overlooked the uncertuiniy its

opinion “ili create. ft cverlcoks the reversible error it

invites in the future tricd of antitrust cases. Because of

the admitted constraints placed on it by yi first panel's

“explicit” statement about the “only defect” in the charge.

the Court of Appeals overlocked, sen pr or

ignored the plain, simple. comimon, everyday meaning and

effect of the words “both.” “property” and “and” used

in the above quoted portion of the jury charge.

Unless a jury hearing this charge is given the necessary

clarifying definition of the word “property,” this charge

permits it te award two separate, distinct and independent

items of damage to a Plaintiff, just as certainly as if

Special Interrogutories as to these two matters had bee:

submitted to it. The Court of Appeals recognized this

possivility bui in its effort to observe “principles ef sound

judicial administration” avoided the issue by seeking out

and relying on inferences or innuendoes in the evidence

and argument of counsel to conclude thet the “property”

reference was to “tools and equipment” and thus con-

cluded that Petitioner Gulf suffered no harm on_ this

account. Petitioner subiaits that the Court of Appeals

simply begged the question by resorting to inference or

innuendo to support this jury charge. The question for this

Court to decide is whether the plain. accepted. common.

everyday meaning of the words “both.” “property” and

“and” set out in the charge have th effect of inviting

and —— a double recovery. If they do. giving ue

9. Ibid.

charge constitutes reversible error unless clarifying or

qualifying language be employed to inform the jury that

the word “property” was being used by the court in the

limited sense of meaning “tools or eguipment” only.

Albrecht vy. Herald Co., supra.

The word, “property,” without any Clarifying of limiting

definition, encompasses within its meaning all types of

propertv: real, personal or mixed. Webster Pictionary,

Second College Edition, p. 1139. “Property” is a word

of common and general usage and is used to describe or

include numerous classifications of estates and POssessions.

For example, the term embraces the concept of a home,

a business, inventions, real estate, ranches, tools, equip-

ment, etc., etc. It does not have a restricted or qualified

meaning, and it was not qualified or restricted by the

proof or argument offered during the trial of this cause.

Presumably. because the Court of Appeals felt that it was

“constrained by the strong policy against continuous. re-

litigation™'” and because Principles of sound judicial ad-

ministration required support of that Court's dicta in the

prior appeal.'’ that Court drew unwarranted inferences

that the term “property.” in the context of this record,

meant only loss of value to “tools and equipment.” In so

ruling, the Court of Appeals overlooks or misapprehends

the direct and contradictory testimony and argument of-

fered on both sides of this case. which focused on and

emphasized the damage, if any, to Plaintiff's entire busi-

ness enterprise or property. The issues of market value,

going concern value, value of personal property. value of

his lease, loss of future profit potential. all were contro-

10. App. B. p. 31.

11. App. B, p. 33.

verted and the subject of argument before the jury. Not

only did Gulf’s witnesses testify on these items of damage,

but also the Plaintiffs witnesses, Brown and Simpson,

testified that Plaintiff's business enterprise generally and

his lease in particular had “some” going concern or market

value, although they were unable to put any specific value

on these items.'* The Court’s opinion that no “duplicative

inference” can be drawn from the record is unwarranted

and, frankly, it overlooks this evidence or misapprehends

the impact it had on the jury. This jury, on the basis of

this record, may very well have disagreed with Gulf’s

proof regarding loss of good will or market value and

concurred with witnesses Brown and Simpson and made

its award on that basis.

By stating that the jury charge was “appropriate,”

despite the omission of a clarifying definition of “prop-

erty,” the Court of Appeals reduces further litigants in

antitrust damage cases to a state of utter uncertainty and

confusion as to the proper measure of damages in this

type of case.

Assuming arguendo, that the trial court's failure to give

a clarifying definition of “property” was, in fact or in law,

harmless to Appellant, if, as the Court of Appeals states,

principles of sound judicial administration are to be

forged and honored so that trial courts and, presumably,

trial lawyers can be secure in following the mandates of

appellate courts, the Court of Appeals Opinion, as writ-

ten. should be modified or clarified. Future litigation in

any area of the country cannot be conducted with any

assurance against reversal of the above quoted charge of

the trial court. If trial judges consider this type of charge

12. App.. pp. 268-270 and 451-478.

appropriate, who can predicate whether a jury's verdict,

based thereon, can withstand an appellant's attack. Such

cases Must be appealed to determine: (1) If the evidence

supports a conclusion that no duplicative inference was to

be drawn, (2) If a clarifying definition of “property” was

essential to protect the defendant against a duplicative

award, (3) Whether the failure to request a clarifying

definition of “property” would waive the right to attack a

charge which did not include su’) a definition.

This decision cannot and will not impart the desired

feeling of security. That the Court of Appeals seeks to

achieve by adhering to “an earlier panel's mandate.” When

an acceptabie or reasonable alternative is open and avail-

able. litigants and trial courts must not be left to rely

upon inferences or innuendoes. Should this Court sanction

the continued use of a jury charge which, given the plain

meaning and thrust of words such as “both.” “property”

and “and.” invites and permits a jury to award simul-

taneously two separate, distinct and independent items of

damage. viz.. loss of the business’ market value (including

Value of tools and equipment) and the loss of future net

profits? Courts in other circuits have recognized that the

use of susbtantially similar jury charges constituted rever-

sible error. Albrecht v. Herald, and cases cited in footnote

6, supra. The Court of Appeals opinion is diametrically

opposed to the law announced in Albrecht, McGinnis,

Farmington, Vandervelde and Simpson a course which in-

vites future litigants. jurors. and trial courts into error.

This Court should resolve this conflict and should decide

that such a definition is mandatory and that it does not

depend on the evidence.

To the extent that the Court of Appeal’s comments. in

footnote 21. about the de minimis nature of Gulf’s objec-

tion to the duplicative damage instruction which may have

influenced that Court, Gulf directs this Court's attention

to the following tacts which apparently were overlooked

or ignored by the Court of Appeals. First, two weeks prior

to trial, Gulf prepared, presented and filed with the trial

court a suggested jury charge. Each and every element of

damage that a jury could legally consider was set forth in

plain, concise and unambiguous terms. Each element of

the charge was annotated and supported with the relevant

and extant case authority.'’ Gulf’s suggested charge can-

not reasonably be interpreted as anything but a specific

objection to the charge given in the first trial. Secondly,

immediately at the close of the evidence in the second

trial, the trial court verbally charged the jury and simul-

taneously distributed a typed copy of his charge. Neither

counsel had the opportunity to read or object prior to the

charge being read. After the jury left to deliberate. the

Appellent was permitted to dictate objections to the charge

and stated quite specifically with regard to the duplicative

nature of the charge:

“ .. as far as net profits are . . . concerned. the jury

should not only be instructed that this is a factor to

be considered in estimating what the market value of

a business is . . . Gulf’s suggested charge takes the

approach of Standard Oil of California v. Moore .

and Albrecht v. Herald Co.”"*

Albrecht and Moore were cited to the Court in Gulf’s

suggested charge. These cases are clear holdings that it is

error to invite or permit a jury to grant recovery for dam-

ages to an existing business or property and damages occa-

13. App. pp. 12-21.

14. App. p. 42.

sioned by the loss of future profits. Thirdly, in Gulf’s

Motion for a New Trial, the first ground of error alleged

as the basis for a new trial was the duplicative damage

issue.

Turning to the Court of Appeals’ holding of “harmless

error,” can it be reasonably and fairly held that the trial

court’s omission of a clarifying definition of “property”

was harmless to Gulf. when Gulf prepared the defense on

this case and presented testimony on the total value of

Lehrman’s business enterprise or property? Gulf did not

restrict its evidence to the loss. if any. to the market value

of Lehrman’s tools and equipment. Gulf’s case attacked

the plaintiff's allegation of damage to property of whatever

kind. The reported case law which Gulf cited and

relied upon clearly holds that a Plaintiff cannot recover

both the loss of the market value of his business (which

would include the value of tools and equipment) and the

damage occasioned by the inability to earn future profits.

Under certain circumstances. courts have held that the

loss of future profits may be the only practical way to

measure the damage to a Plaintiff's business within the

meaning of the statute. (Contrary to the Court of Appeals’

statement.’” Gulf did not contend that going concern or

market value was the only measure of damages.) To the

extent that this misapprehension of Culf’s position might

have influenced the Court in its consideration of this ap-

peal, Gulf states and the record supports that it has con-

tended from the day it submitted its suggested jury charge

to the trial court that a Plaintiff in an antitrust suit may

not recover both loss of future profits and loss of market

of going concern value of his business. Since the fair and

15. App. B. p. 31.

clear inference of the above quoted language of the charge

is that duplicative damages were invited by the Court, and

subsequently awarded, Plaintiff's damages were, in effect,

sextupled insteac. of trebled. This is the reason Gul con-

tends that the verdict is improper.

The approval of a charge as the one before this Court

not only invites error for future litigants. but also, it frus-

strates the purpose sought to be attained by this Court, the

establishment and attainment of sound principles of judi-

cial administration in the decision making process.

2. In holding that informing the jury of the treble

damage feature of the Clayton Act, “serves no useful func-

tion” and is “potentially harmful”, the Court of Appeals

has overlooked the fact that jurors are aware of the treble

damage feature and that without appropriate instructions

concerning those damages, jurors will be confused and will

render improper verdicts. It is unrealistic to think that all

jurors are ignorant of the impact of the antitrust laws. For

example, recent stories about the IBM and General Tele-

phone antitrust litigation have covered the front pages of

local as well as national newspapers and periodicals and

have been carried by both the major TV networks and

local TV stations. It is inevitable that at least some of the

jurors are aware of treble damage antitrust litigation be-

fore they are actually chosen for a panel in such a case.

The jury must be told that their function is to determine

only the amount of dze:.ages to a Plaintiff's business or

property and that the Ccurt will treble those damages and

award attorneys fees.

Failure to instruct the jury on the treble damage fea-

ture marks a departure from the modern and enlightened

trend toward fully informing the jury of the law and the

effect of its answers. As stated in 9 WRIGHT & MILLER.

FEDERAL PRACTICE AND PROCEDURE § 2509 at

513 (1971): %

“... an attempt to keep the jury in the dark as to

the effect of its answers, is likely to be unavailing,

and there is always the danger that the jury will guess

wrong about the law... 2""

This Court’s decision effectively blindfolds the jury to an

important and reievant portion of the governing statute.

In other areas of the law, this is not the practice. In cases

pertaining to the Federal Employers Liability Act, the

Labor Management Relations Act, the Federal Criminal

Statutes, and the Internal Revenue Code, the jury is in-

formed of the governing law.'* In cases involving Federal

regulatory statutes, it is not only~sound judicial policy to

inform the jury of the statutory law upon which the action

is based, but it is essential in order to prevent confusion,

16. See also J. BROWN, FEDERAL SPECIAL VERDICTS:

THE DOUBT ELIMINATOR, 44 F.R.D. 338, 341, E. TIMBER-

LAKE, FEDERAL TREBLE DAMAGE ANTITRUST ACTIONS.

$1906 at 281-282 (1965): “Privaie Treble Damage Antitrust Suits:

Measure of Damages for the Destruction of All or Part of a Busi-

ness,” 80 HARV. L. REV. 1566, 1569 n.20> (1967).

17. See Batsell v. United States, 403 F.2d 395. 400 (8th Cir.

1968). cert. denied 393 U.S. 1094 (1969) “*The Court may and

generally should, where the law governing a case is expressed in a

statute, employ the language of the statute in its instruction. ~ Wil-

liams v. United States, 328 F.2d 256 (Sth Cir. 1964): Maynard 2.

United States, 215 F.2d 336, 339 (D.C. Cir. 1954). “Even in crim-

inal cases. it is held as a general rule that where the law governing

a case is expressed in a statute the Court in its gharge should use the

language oi the Statute.” LaBarge Water Well Supply Co. v. United

States, 325 F.2d 798 (Sth Cir. 1963): Terminat Railroad Association

of St. Louis v. Howell, 165 ¥.2d 135 (8th Cir. 1948), “ "It would be

strange indeed if it could be said to be error to lay down the law

in the exact language of the statute upon which the action is based.’ ”

Fritz v. Pennsylvania Railroad Company, 185 F.2d 31 (7th Cir.

1950): United Flectrical R. & M. Workers v. Oliver Corporation,

205 F.2d 376 (8th Cir. 1953).

misunderstanding and the threat of an erroneous and un-

enlightened verdict. Recognizing that the principal pur-

pose of the treble damage provision is to deter antitrust

violations and that such provision is punitive in nature is

all the more reason ti-at the jury should be fully informed

thet it is the duty of the judge, not the jury, to perform

the mandatory trebling, and that the jury only determines

the amount of compensatory daniages. The jury’s purpose

in an antitrust case is not to punish the antitrust violator,

it is siniply to determine the amount of damages to the

plaintiff's business or property.

Because of the division of authority on the question of

giving an instruction on the treble damage provision,

which has been recognized by the Court of Appeals.’

this Court should consider the question of instructing the

jury as to the treble damage feature of the Clayton Act,"”

3. The Court of Appeal: has iiberalized and minimized

an antitrust plaintiff's burden of proof on the damage issue

to an extent not heretofore contemplated or approved by

this Court or by other Circuit Courts. Prior to this deci-

sion, if an antitrust plaintiff was unable to commence his

business enterprise because of the defendant’s antitrust

restraints. or if he was unable to establish a “track record”

18. App. B, p. 37.

i9. Additional authorities favoring informing the jury of the treble

damage provision of the antitrust law include Viking Theatre Corp.

v. Paramount Film Distributing Corp., 1961 C.C.H. Trade Cases.

Aluminum Co. of America (C.A. No. 14,669 S.D. Tex. Hou. Div.

1962): Carpa, Inc., et al v. Ward Foods Inc. (W.D. Tex. C.A. No.

CA-71-CA-19); City of San Antonio v. Westinghouse Electric Cor-

poration, et al (W.D. Tex., C.A. 3064, September 9, 1964): Rea v.

Ford Motor Co., 355 F. Supp. 842 (W.D. Pa., 1973); Cape Cod

Food Prod. v. Nat'l Cranberry Ass'n, 119 F. Supp. 900 (D.C. Mass.

1954).

for his enterprise because he labored under antitrust re-

Straints, courts required him, in the proof of damages, to

present financial data based upon the experience and his-

tory of a business identical or substantially similar to the

plaintiff's type of business. This is the type of evicence

courts have considered “just and relevant estimate. of

dainage.” The Court of Appeals recognized this wha it

said that “our first decision clearly contemplated tie use

of ‘yardstick type’ evidence” by the Plaintiff in «4. second

trial.*”

The only evidence offered by this Plaintiff that may be

considered as “yardstick evidence,” i.e., evidence that con-

cerned an identical or substantially similar business to that

of the Plaintiff was the testimony and exhibits offered by

Plaintiff's bookkeeper.” The Court of Appeals has refused

to decide or give any indication of whether this evidence

was admissible under the rules of evidence which pertain

to the admissibility of “yardstick” type evidence. In side-

stepping this issue, the Court stated:

“We need not decide whether Brown’s station and

Lehrman’s are sufliciently similar to allow collation

of profits because the data from Brown’s station was

not used in that manner.”*”

Nevertheless. the Court went on to analyze and comment

upon the expense data of the Brown service station and

remarked “the precise impact of the Brown expense figures

was not clear.”** The conclusion is inescapable that Plain-

20. App. B, p. 27, 42: App. C, p. 59.

21. App.. Vol. 2. pp. 84-87. Exhibits 36 and 47-A,

22. App. B. p. 43.

23. Ibid.

tiff’s bookkeepers “collation” was not a yardstick of any-

thing; neither of income, expense, nor profit. What, then,

is the measure and thrust of the Court’s mandate that the

Plaintiff use “yardstick” type evidence in his proof at the

second trial? If Brown’s Temple, Texas, service station is

not a proper “yardstick.” where, then, in this record is

evidence of this nature? It cannot be Plaintiff's own past

experience (i. “before and after”) because the Court of

Appeals has «i ° that the Plaintiff's business did not

operate for a suilicient length of time free of antitrust re-

straints to permit a fair assessment of his financial data.

It cannot be “the other stations whose expenses were cor-

related” by Plaintiff's bookkeeper because there was no

predicate laid by the Plaintiff for the introduction of those

businesses’ financial data. No doubt it was the Court of

Appeals realization of the obvious substantial dissimilari-

ties between Plaintiff's and Brown’s business enterprises

and further its realization that the Brown business enter-

prise came into existence many months after Plaintiff

closed his business that mitigated against that Court's de-

ciding specifically that the “yardstick” evidence offered by

the Plaintiff could support the jury verdict.

Even though the Court of Appeals expressly repudiated

the idea that the Plaintiff's bookkeeper’s collated data was

used to project income or profits.** it overlooked the ob-

vious impact that this inadmissible evidence had on the

jurors who heard the testimony and reviewed the exhibits

which were offered in connection with it. nameiy Exhibits

36 and 47-A. This testimony and these exhibits are the

only place in the record where any specific projections of

profit figures are made. As a matter of fact. the impact and

24. App. B, p. 42, footnote 47.

25. See Note 3, supra.

effect of these exhibits was felt by the C. urt of Appeals.

Thus, in the face of the Court of Appeals’ explicit state-

ment that Plaintiffs bookkeeper’s projections “correlated

to Brown's Temple service station . . . were not used to

project profits,” the Court of Appeals specifically relies

on these very profit figures to drive home its point that

“the jury's verdict has a firm basis in Lehrman’s projection

of the lost profits.”*"

If the record is stripped of Lehrman’s bookkeeper’s

testimony and his unwar nted assumptions as to future

income. expense and profit appearing on Exhibits 36 and

47-A, the “just and relevant data” supporting the jury’s

verdict boils down to Plaintiff's testimony and that of his

neighbor. the operator of a self-service station nearby. to

the effect that Plaintiff if tree to price competitively. could

pump a certain volume of gasoline. Neither Plaintiff nor

any other witness attempted to project what margin of

profit. if any. he might enjoy in his effort to attain the

projected volume figures. Further, not a single witness,

except Plaintiff's bookkeeper purported to project the ex-

penses which might be incurred by Plaintiff in the realiza-

tion of the sale of such volumes.

It is true that the courts have adopted an extremely

liberal, generous. and charitable attitude in their review

of an antitrust plaintiff's proof of damage. However. no

court to date has minimized or liberalized that burden to

the extent that the Court of Appeals for the 5th Circuit

bas done in its Opinion in this case. The affirmation of

26. App. B. p. 47, footnote 60. where the Court states. “For

example, according to some of th» evidence, if Lehrman, a man of

thirty-#v: at the time of the second trial, had operated the station

for ten ,ears at a volume of 20,)00 gallons per month with a five

cent dealer margin, his projected profits were estimated to be $77,-

480.” This profit figure is taken directly from Exhibit 47-A which

was prepared by Lehrman’s bookkeeper.

this jury verdict is based solely on the Plaintiff's proof that

he «ould attain a projected sales volume of two grades of

guanine. There ie 2 compete lack. af competent and re-

sponsible financial data concerning the projected business

operations of the Plaintiff. There was no offer of opinion

evidence by any competent financial analyst with respect

to the data that was offered in evidence. There is no oper-

ational or financial data in evidence that can be tied or

related to a “yardstick” business identical or similar to

that of the Plaintiff. In short. there is no legal basis which

supports the jury’s verdict. In affirming this verdict. the

Court of Appeals has unduly liberalized and diluted the

previous Court imposed standards of evidence required of

a plaintiff in an antitrust case. This departure from prior

standards should be reviewed by this Court.

4. Permitting Plaintiff's testimony as to his age, health

and desire to stay in business to evidence the appropriate

duration of future profits in this antitrust case, marks sig-

nificant departur: from established precedent. The Court

of Appeals acknowledges that its holding is direcily con-

trary to Standarc' Oil Company of California v. Moore,

251 F.2d 188 (9th Cir.) cert. denied 356 U.S. 975

(1958).*? In an antitrust case, the measure of damages

is the amount of «lamage to the successful plaintiff's busi-

ness or property.” Damages to “business ur property”

must be and have been distinguished from personal in-

juries, as no recovery for personal injuries is authorized

ky the Clayton Act. A personal injury theory of damages

or evidence relating to personal characteristics of the plain-

27. App. B. p. 46.

28. Hawaii v. Standard Oil Co., 405 U.S. 251 (1972): In Re

Multi District Vehicle Air Pollution 1973 CCH Trade Cases at 74.540

(9th Cir. 1973).

tiff is in no way relevant to the question of damages in

an antitrust case. See Simpson v. Union Oil Company of

California, 411 F.2d 897 (9th Cir. 1969). Permitting

Plaintiff's testimony about his personal characteristics to

support a damage award based on duration of future

profits, truly opens a Pandora’s Box and effectively changes

the law in an antitrust case. The injury, which is com-

pensable in an antitrust case, is to a plaintiff's business

Or property and that measure of damage has no relation-

ship whatsoever to the plaintiff's age, health and desire

to stay in business.

5. All of the evidence offered by plaintiff as to the tu-

ture net profit potential of his business was based on

events, facts and business developments which occurred

after he left his service station business.*" The projections

based on Bill Brown's service station should have been

excluded since that business did not even exist on the date

Plaintiff left his station. This same type of proof was of-

fered and rejected in Standard Oil Co. of Calif. v. Moore.

supra at 221. The Ninth Circuit pointed out that testimony

as to the measure of the injured plaintiff's damages based

“in part upon certain events, facts and business develop-

ments subsequent to” the date Moore's service station busi-

ness was destroyed was inadmissible. See Ithaca Trust Co.

v. United States, 279 U.S. 151 (1928): City of New York

v. Sage, 239 U.S. 57 (1915). The Court of Appeals has

expressly refused to follow the holding in Standard Oil

Co. of Calif. v. Moore and has approved the admission of

evidence of facts and events which occurred after Lehr-

man left his business. This Court should resolve this con-

flict.

29. App. Vol. I, p. 23-27.

30. App. B. p. 45.

CONCLUSION

Wherefore, Gulf Oil Corporation, petitioner, prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit in

the above-entitled case.

Respectfully submitted,

JOHN E. BAILEY

CATHERINE C. MCCULLEY

Attorneys for Gulf Oil Corporation,

Petitioner

i da eoecen Or ee

CERTIFICATE OF SERVICE

1, Catherine C. McCulley, hereby certify that a correct

copy of the foregoing petition for writ of certiorari was

served on counsel for Kenneth Lehrman, Mr. Jack N.

Price, P. O. Box 511, Longview, Texas 75601, by de-

positing a copy of the same, postage prepaid, in the

United States mail this____day of December, 1974.

APPENDIX A

United States Court of Appeals

FOR THE FIFTH CIRCUIT

October Term, 1973

No. 73.2822

D. C. Docket No. C.A-68-4-W

KENNETH LEHRMAN, Plaintiff-Appellee,

versus

GULF OIL CORPORATION, Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

Before GEWIN. THORNBERRY and RONEY. Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Wesiern District of Texas. and was argued by counsel;

ON CONSIDERATION WHEREOF. It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed;

It is further ordered that defendant-appellant pay to

plaintiff-appellee. the costs on appeal to be taxed by the

Clerk of this Court.

September 11, 1974

Issued as Mandate:

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

November 5, 1974

TO ALL COUNSEL OF RECORD

Re: 73-2822

LEHRMAN vy. GULF OIL CORPORATION

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehcaring, and no member of

the panel nor Judge in reg4'a. active service on the Court

having requested that the Court be polled on rehearing

en bane (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied.

See Rule 41. Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

By /s/ ANNE G. PARENT

Deputy Clerk

cc: Mr. John B. McNamara, Jr.

Messrs. W. B. Edwards

John E. Baiiey

Ms. Catherine C. McCulley

Mr. Jack N. Price

Mr. Charles M. McDonald

APPENDIX B

Kenneth LEHRMAN, Plaintiff-Appellee,

GULF OIL CORPORATION, Defendant-Appellant

No. 73-2822

United States Court of Appeals

Fifth Circuit

Sept. 11. :974

A former service station operator brought a treble dam-

age antitrust action against an oil company. A retrial after

a former appeal, 464 F.2d 26, was conducted in the

United States District Court for the Western District of

Texas at Waco, Jack Roberts, J., and resulted in a verdict

for the plaintiff. The defendant appealed. The Court of

Appeals. Gewin. Circuit Judge, held that future profits

were an appropriate measure of damages, that instructions

did not permit duplicative damages to be awarded. that a

treble damage instruction was not necessary, and that

omission of a present value instruction was not a ground

for reversal. Also, plaintiff's evidence was not immaterial.

irrelevant or prejudicial. nor was it unduly speculative or

conjectural, and the jury’s verdict was not excessive.

Affirmed.

Appeal from the United States District Court for the

Western District of Texas.

Before GEWIN, THORNBERRY and RONEY, Circuit

Judges.

GEWIN, Circuit Judge:

This is the second appeal in this case. and we are now

concerned only with the issue of damages. The first appeal

arose out of a treble damage antitrust action filed by Mr.

Kenneth Lelirman under Section 1 of the Sherman Act’

against the Gulf Oil Corporation (Gulf) alleging that

Gulf’s complicated system of setting wholesale prices for

its gasoline was used as a mechanism for fixing the retail

prices at which station operators like Lehrman resold the

gasoline. He alleged that these illegal pricing policies drove

him out of his service station business in Mart. Texas. by

making it impossible for him to compete with the prices

charged by other stations in his area.* After the initial jury

trial a verdict was returned in Lehrman’s favor in the

amount of $60.000 in compensatory damages, but the

district court set aside this verdict, reduced the award. aid

entered a judgment for Lehrman for the sum of $21.000-

$63,000 trebled.

Gulf appealed to this court’ raising the questions of

1. 15 USC. §1.

2. The facts of this controversy have been thoroughly detailed in

an opinion resulting from the prior appeal. and little purpose would

be served by repeating them here. See Lehrman v. Gulf Oil Corp.,

464 F.2d 26, 29 (5th Cir. 1972).

3. Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir. 1972).

jurisdiction and liability. Both parties to the previous ap-

peal complained of the districi court’s treatment of the

damages assessed against Gulf. This court concluded thai

the district court did not lack subject mztier jurisdiction

and that Gulf was indeed liable for an antitrust violation.

We found it necessary, however, to remand the cause for

further proceedings restricied to the question of the proper

measure of Lehrman’s damages. Although our opinion

emphasized the principle that courts are “to take a chari-

table view of the difficulties of proving damages in a case

when a treble-damage plaintiff must try to prove what

would have accrued to him in the absence of the defend-

ant’s anticompetitive practice.” it was concluded that “we

must at least insist upon ‘a just and reasonable estimate

of the damage based on reasonable data.’ ™'

Specificaily, on the first appeal this court found that

there should have been an allowance in the original jury

verdict for mitigation of Lehrman’s damages by tt. emount

of his earnings in his current tine of work.” Moreover, it

was determined thai the district court’s remittitur was inap-

propriate. Without noting any other specific criticism of

the evidence on damages we offered the following obser-

vations in the concluding portion of the opinion:

At the new trial, Lehrman may introduce additional

evidence to provide the jury with a better “yardstick”

to ineasure Lehrman’s losses. There may be addi-

tional evidence to clarify the possible length of Lehr-

man’s future tenure in the station and therefore the

appropriate duration of future profits. Additional

4. Id. at 46 (citation omitted).

5. Jd. at 46. Failure to instruct the jury to include such a deduc-

tion was labeled “the only defect in the lower court's charge to the

jury.” Id. at 47.

evidence will likely be necessary to provide some

measure of the deduction from Lehrman’s damages

which must be attributed to the present and future

earning capacity he now has which he would not

have enjoyed had he continued to look chiefly to the

Station for his income and to devote most of his time

to its operation.

With our former opinion as a guide the case was retried

on the damage issue only. Lehrman attempted to remedy

the specially enumerated defect in his prior proof by intro-

ducing evidence of his alternative sources of income. A

second jury returned a verdict for $40,000 and a treble

damage judgment of $120,000 was entered by the court.

Gulf las appealed again, and today we must decide

Whether Mr, Lehman’s efforts on retrial to prove his dam-

ages comply with standards prescribed by our previous

opinion and by sound precedent. We feel that they do

and affirm.

[1, 2] Before addressing Gulf’s contentions, however.

we should briefly discuss the “law of the case” doctrine

which plays an important role in subsequent appeals. This

laudable and self-imposed" restriction is grounded upon

the sound public policy that litigation must come to an

end. An appellate court court cannot efficiently perform

its duty to provide expeditious justice to all “if a question.

once considered and decided by it were to be litigated

anew in the same case upon any and every subsequent

6. Zarzaur v. United States, 493 F.2d 447. 453-454 (5th Cir.

1974). Although the federal courts generally refuse to reopen issues

that have been previously decided on appeal. it is within their power

to do so. 1B J. Moore, Federal Practice ‘ 0.404 [10], at 573 (2d ed.

1974); 9 J. Moore, Federal Practice © 110.25 [2], at 275 (2d ed.

1973).

appeal.”* Not only does the doctrine promote judicial effi-

ciency but it also discourages “panel shopping” at the

circuit level, for in today’s climate it is most likely that a

different panel will hear subsequent appeals.”

Nevertheless, there are important boundaries to the

scope of the doctrine. In the federal courts, for example,

the law of the case does not carry the same consequences

as the rule of res judicata; it does not preclude a second

review if considerations of substantial justice warrant it.”

More important to the instant case is the limitation that

the doctrine does not include all questions which were

present in a case and which might have been decided but

were not.'” As a general rule if the issues were decided,

either expressly or by necessary implication, those deter-

minations of law will be binding on remand and on a

subsequent appeal.”’

7, White v. Murtha, 377 F.2d 428, 431 (Sth Cir. 1967) recently

cited with approval in Terrell vy. Household Goods Carriers’ Bureau.

494 F.2d 16, 19 (Sth Cir. 1974).

8. Zarzaur v. United States, 493 F.2d 447. n.15 (5th Cir. 1974).

9. Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19

(5th Cir. 1974); 1B J. Moore, Federal Practice © 0.404 |1], at 405-

06 (2d ed. 1974) (not res judicata): 9 J. Moore, Federal Practice

£110.25 [2], at 275 (2d ed. 1973) (Reconsideration may be war-

ranted). Also see note 6, supra.

10. Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 136, 41 S.Ct.

276, 65 L.Ed. 549 (1921): ‘Terrell v. Household Goods Carriers’

Bureau, 494 F.2d 16, 19 (Sth Cir. 1974); Connett v. City of Jersey-

ville, 110 F.2d 1015, 1018 (7th Cir. 1940): 1B J. Moore, Federal

Practice £ 0.404 [10], at 573 (2d ed. 1974).

11. Diplomat Electric, Inc. v. Westinghouse Electric Supply Co..

430 F.2d 38, 48 (Sth Cir. 1970). Of course if as Diplomat Electric

points out, a subsequent panel considers the legal decision clearly

erreneous then reconsideration may be warranted as explained in the

text accompanying note 9, supra. Also see Terrell v. Household Goods

Carriers Bureau, 494 F.2d 16 (5th Cir. 1974); 1B J. Moore, Federal

Practice £ 0.404 [10]. at 573 (2d ed. 1974).

Ill

Gulf has massed a repetitive and caustic assault upon

Lehrman’s case, but its contentions can be distilled into

three broad categories: (1) improper jury instructions:

(2) the admission of allegedly improper evidence, par-

ticularly “yardstick” evidence; (3) the allegedly undue

speculation on which the jury verdict is based. The jury

instructions are asserted to be deficient in four respects:

(1) going concern value should be the only measure of

damages, not future profits; (2) the jury should be in-

structed on the present value comept; (3) the charge

allowed the jury to award duplicative damages; (4) an

instruction on treble damages should have been given.

[3] The first of these assertions—inappropriateness of

future profits as a measure of damages—is clearly without

merit. Initially, we feel that the law of the case has been

clearly established here. Gulf objected to the use of future

profits on the first appeal but we rejected the challenge and

stated:

Gulf raises several objections to the damage calcula-

tion. First, it objects to the use of future profits as a

measure of Lehrman’s damages because, it contends

that allowing Lehrman to recover for future profits

would enable a proprietor who has been the victim

of a single anticompetitive practice to walk away

from his business and collect damages for future pro-

fits despite the possibility that the business might still

be operated successfully. Gulf stresses that the cases

which have allowed future profits as a measure of

antitrust damages have been cases involving refusals

to deal, or cancellation of leases, both of which prac-

tices rendered it inpossible for the proprietor who

had been damaged to continue in business.

We do not accept Gulf’s restrictive application of

the principle of future profits as antitrust damages.

(footnote omitted )'*

Indeed, Lehrman is cited in Terrell v. Household Goods

Carriers’ Bureau’* as support for the proposition that lost

future profits are an appropriate measure of damages.

[4, 5] Even if we did not feel constrained by the strong

policy against continuous relitigation we would still reject

Guif’s contention on the merits. Clearly, going concern

value and lost future profits are each viable alternative

measures of antitrust damages.'’ Future profits cannot be

condemned as inordinately more speculative than the go-

ing concern value since the former is a crucial component

of the latter. In addition going concern or goodwill value

may present difficult problems of proof if the lessor of a

particular station Places restrictive conditions on the trans-

fer of the lease.’” Finally, future profits ac >ompanied by

12. 464 F.2d 26, 44-45 (Sth Cir. 1972).

13. 494 F.2d 16,n.12 (5th Cir. 1974).

14. Jd.; Note, Private Treble Damage Antitrust Suits: Measure

of Damages for Destruction of All or Part of a business, 80 Harv.L.

Rev. 1566, 1577 (1967). We. of course. realize that because future

profit potential is a principal element of a firm's going concern value

an award should not include both. Albrecht v. Herald Co., 452 F.2d

124 (8th Cir. 1971). Also see the discussion at p. 7632, infra.

15. Cf. Frank Coulson, Inc.—Buick v. General Motors Corp., 488

F.2d 202 (5th Cir. 1974). Restrictions might include approval of

future transferees and attempts to influence transfer price. /d.

The evidence indicates that Lehrman’s lease was of the “evergreen”

variety, so designated because they are customarily renewed from year

to year. Upon this record the jury could easily conclude that though

there was a theoretical possibility of early termination by Gulf, in

the practical business context it would be much more likely that the

lease would be continuously renewed throughout his career. See Note,

Private Treble Damage Antitrust Suits. supra note 14, at 1578.

an ~~ard for any decline in asset values will often more

fully compensate a businessman by measuring his lost

earnings, not just what it is worth to someone else to

reach for those earnings.’® :

[6] Gulf also claims that the jury should have been in-

structed to award only the uae’ ae of Jost future pro-

fits, and we agree that this would be the better practice.

But we do not find this issue raised in Gulf’s objection to

the court’s charge. Even assuming the matter is properly

preserved we find the error harmless in light of the com-

plex proof.

[7-9] Pointing to the following instruction, Gulf assigns

as a third defect the contention that the court permitted

the jury to award duplicative damages:

Our law permits the jury to take into account both

any damages which may have been inflicted on ex-

isting property and the damages which may have

been sustained as a result of being unable to make

profit which may reasonably could have been (sic)

anticipated and would have been realized if it were

not for the violation of the antitrust laws.

Of course, 15 U.S.C. §15 provides that “[a]ny person who

shall be injured in his business or property by reason of

anything forbidden in the antitrust laws may sue therefor.

16. See Note, Private Treble Damage Antitrust Suits, supra note

14, at 1581. Gulf asserts that personal factors are clearly inappro-

priate for consideration here just as they are in eminent domain pro-

ceedings. This analogy, however, ignores the different public policies

at work in eminent domain and in antitrust suits. Factors which are

speculative and appeal to sympathy are excluded in eminent domain

proceedings to avoid an undue drain on the public treasury. Arguably

in the private enforcement of our antitrust laws a more liberal test

of damages should apply. /d. at n. 80.

... But Gulf contends that the above quoted instruction

by the district court permits the jury to award damages

for both lost future profits and going concern value. Courts

have recognized that future profits are a principal element

in going concern value.'’ Thus, it is clear that an award

including both is inappropriately duplicitous.

Before examining the instruction to see whether it per-

mits such duplication we should consider the possible ap-

plication of the law of the case. The allegedly duplicative

and defective instruction was quoted at length by this

court on the first appeal.'" Our decision expressly stated

that the only error in the charge was the failure to instruct

the jury to deduct a reasonable amount attributable to

Lehrman’s earnings after leaving the gas station business.””

Since we decided to reverse because the instructions did

not include that mitigating factor our conclusion as to the

absence of other defects may not have been absolutely

necessary, but it was explicit.*”

Principles of sound judicial administration require that

when a Court of Appeals identifies the only defect in a

trial court’s charge, the trial court should feel secure in

following that mandate. confident that until revised by

higher authority it will be respected by all panels. Never-

theless. Gulf maintains that a re-trial on damages is an

entirely new “ball game.” Second. it suggests that the

court’s statement is of little importance because Gulf did

17. Albrecht v. Times Herald, 452 F.2d 124, 129 (8th Cir. 1971).

18. Lehrman v. Gulf Oil Corp.. 464 F.2d 26, n.14 (Sth Cir. 1972).

19. Jd. at 47.

20. Sce text accompanying note 11, supra.

not specifically direct the court’s attention to the language

awarding duplicative damages."

Gulf’s position that a re-trial on damages wipes the slate

clean is clearly inaccurate as to matters of law as we have

previously explained. Gulf’s second argument presents a

closer question. As noted, the doctrine of the law of the

case applies only to the issues decided, not to all those

presented for decision but left unanswered.?? A strong

argument can be made that this court's express statement

decided the present jury instruction issue even though it

was not argued or briefed. Even if we should agree, how-

ever, that the court's explicit pronouncement on the trial

court's instruction was premature and should not be Strictly

followed because argument was not presented, it would

not change the result here because we find the instruction

appropriate.

The instruction does not allow duplicative daimages if

property loss is taken to mean loss on tools and equip-

ment.** Although Lehrman indicated he was “satisfied”

with the sales price he received for his tools there is some

evidence that they might have been worth more.*! Only if

21. Not only did Gulf fail to raise the issue on the first appeal

but in its brief on the first appeal it was intimated that the court

correctly charged the jury that injury may be to business or property.

Furthermore, Gulf again failed to specifically object to this portion of

the charge at the second trial. While we are aware that legal issues

rarely permit instant analysis we feel that the timing of this objection

gives some indication of its de minimis nature.

22. See note 10, supra.

23. See Story Parchment Co. v. Paterson Parchment Paper Co.,

282 U.S. 555, 567, 51 S.Ct. 248, 75 L.Ed. 544 (1931).

24. Lehrman allegedly received less than the depreciated tax value

on the tools. Also there is no indication that his equipment was not

in proper functioning order.

property~” is considered to be inclusive of the going con-

cern value of the station would the instruction permit a

duplicative award. Going concern value, of course, is

drawn heavily from the business community’s estimate of

future profit potential. But it is clear here that no dupli-

cative inference was to be drawn. In light of the entire

instruction and counsel’s argument it is clear that lost

profit was virtually the exclusive element of damage. Lehr-

man opposed references to going concern value at every

turn. Given this particular phrasing a clarifying definition

of prope-ty*" might have been appropriate, but its omission

here was clearly harmless to Gulf.

The fourth objection to the instructions is that the court

commitied reversible error when it refused to instruct the

jury that any jury verdict would be trebled by the court

under section 4 of the Clayton Act.”? Gulf contends that

the instruction is necessary because “the jury should know

what the law is.” Defendants generally desire such an in-

struction hoping it will tend to lower the verdict.?” Plain-

25. For a discussion of the definition of business or property under

the antitrust statutes see Martin v. Phillips Petroleum Co., 365 F.2d

629 (Sth Cir. 1966).

26. See Cape Cod Food Products vy. National Cranberry Ass’n,

119 F.Supp. 900, 911 (D. Mass. 1954) where almost identical Jan-

guage was used in the damage instruction. The court endeavored,

however, to further explain the phrase.

27. 15 U.S.C. $15 provides, “|a]ny person who shall be injured

in his business or property by reason of anything forbidden in the

antitrust laws may sue therefor in any district court of the United

States in the district in which the defendant resides or is found or

has an agent, without respect to the amount in controversy, and shall

recover threefold the damages by him sustained, and the cost of suit,

including a reasonable attorney's fee.”

28. In fact it has been argued that the mandatory nature of treble

dama zs results in some unfortunate and counterproductive resistance

to priv.i* antitrust actions. Note, Private Treble Damage Antitrust

Suits, supre note 14, at 1569.

tiffs naturally fear just such a result. Gulf argues that this

circuit has given its tacit approval to a treble damage in-

struction by quoting in a footnote in North Texas Pro-

ducers Ass’n v. Young” an instruction including such

language. Although the charge in North Texas informed

the jury of the treble damage provision, the judgment was

for the plaintiff. The plaintiff-appellee was apparently sat-

isfied with his verdict, and the defendant-appellant had

little reason to object. Thus the court had no reason to

scrutinize the charge for items that would arguably harm

the plaintiff and aid the defendant. This issue was not

presented to the court for review.

[10] In the present case by contrast, the treble damage

instruction was not given, and had it been given it would

arguably aid the losing party, Gulf. Yet the only defect in

the damage instruction identified by our previous opinion

was the failure to allow for the mitigation of damages by

the amount of Lehri-.an’s earnings after he left the station.

As with the question of duplicative damages Gulf reasons

that the failure of the court to specifically address the

question on the first appeal gives the court's approval of

the instruction a limited effect.*” Similarly, we again em-

phasize that instructions once approved on appeal generally

should be given with confidence on remand:*' but to so

hold is unnecessary because assuming it is appropriate to

reach the merits of the treble damage argument, we re-

ject it.

29. 308 F.2d 235, n.5 (5th Cir. 1962),

30. Like the duplicative damages contention this treble damage

issue was not raised in the first appeal. Unlike the duplicative award

argument, however, the absence of a treble damage charge drew Gulf’s

specific objection in the second trial. See note 21, supra.

31. See p. 7632, supra.

We are aware of the fact that there is a division of

authority on the wisdom of giving an instruction on treble

damages.** Indeed, a divergence of opinion developed

within a single district.“ One suggestion to resolve the

issue is to inform the jury of the provisions of 15 U.S.C.

$15 followed by an instruction to disregard the treble

damage provision in their deliberations.”' Like many such

cautionary instructions the primary result of this sugges-

32, Distinguished authorities that favor informing the jury of the

treble damages provision in the antitrust law include 2 FE. Devitt and

C. Blackmar, Federal Jury Practice and Instructions $85.28, at 265

(2d ed. 1970) and their predecessor W. Mathes. Jury Instructions

and Forms for Federal Civil Cases, 28 F.R.D. 401, 467 (1961). Cases

approving such an instruction are Bordonaro Bros. Theatres v. Para-

mount Pictures, 203 F.2d 676 (2d Cir. 1953) and Cape Cod Food

Products v. National Cranberry Ass'n, 119 F.Supp. 900 (D. Mass.

1954). One commentator has suggested that whether or not the jury

is explicitly informed of the provision’s existence, it is unreasonable

to assume they will not learn of it during the trial. Note, Private

Treble Damage Antitrust Suits, supra note 14, at 1569, n.20.

Cases disapproving such an instruction include the following: Stand-

ard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220 (10th Cir.

1973) (Error to give such an instruction but harmless): Semke v.

Enid Auto Dealers Ass'n, 456 F.2d 5361, 1370 (10th Cir. 3972):

Sablosky v. Paramount Filra Distributing Corp., 137 F.Supp. 929, 942

(E.D. Pa. 1955) and Webster Motor Car Co. v. Packard Motor Car

Co., 135 F.Supp. 4, 11 (D.D.C. 1955), rev’d on other grounds, 100

US. App. D.C. 161, 243 F.2d 418 (1957). See also Richfield Oil

Corp. v. Karseal Corp.. 271 F.2d 709 (9th Cir. 1959). Although the

issue is not explicitly discussed in Richfield Oil, a damage instruction

without a treble damage provision is labeled as fair. accurate and

presenting fully the applicable law. In Richfield Oil the verdict was

for the plaintiff and the defendant appealed. Pending release of this

opinion, anoiver pznel of this court reached the same conclusion that

we reach. See Pollcck & Riley, Inc .v. Pearl Brewing (o., 498 F.2d

1240 (5th Cir. 197-4).

33. Prior to Pollock & Riley, Inc. y. Pearl Brewing Co., supra

note 32, some Judges in the Western District of Texas seemed to

favor informing the jury of the treble damage provision while others

did not.

34. Sce W. Mathew, supra note 33, at 467.

tion may be to emphasize the provision in the jury’s

miad;*’ thus we find it unsatisfactory to accept this solu-

tion without an analysis of the need for the underlying

treble damage instruction.

[11] Although the treble damage provision may be

partially justifiable on compensatory grounds.” its prin-

cipal purpose is to deter antitrust violations.** The pros-

pect of a damage award multiplied three-fold should pro-

vide an incentive for private parties to instigate costly and

uncertain litigation. thus supplementing Governmental

enforcement.** If, as everyone seems to assume. mention-

ing the trebling provisions would lower jury verdicts then

the very purposes for which the provision is designed may

be frustrated. While we cannot know with certainty what

effect such an instruction will have on a particular jury or

even juries in general, it is clear that it is the duty of the

judge. not the jury, to perform the mandatory trebling.

The jury only determines the amount of compensatory

damages.

[12] We agree with the Tenth Circuit’s statement in

Semke v. Enid Auto Dealers Ass’n.“” that “it serves no

35. Although we are not aware of any empirical data to support

this supposition, its validity or invalidity seems capable of resolution

by social science research techniques. See generally J. Weinstein, Hanz

Zeisel’s Contributions to the Administration of Justice and the So-

ciology of Law, 41 U.Chi.L.Rev. 213 (1973).

36. The provision may be necessary because an antitrust violation

often involves numerous intangible economic harms which the jury's

verdict may not adequately reflect. Note, Private Treble Damage

Antitrust Suits. supra note 14, at 1566.

37. See Semke v. Enid Auto Dealers Ass'n, 456 F.2d 1361, 1370

(10th Cir. 1972).

38. Kinnear-Weed Corp. v. Humble Oil and Refining Co., 214 F.

2d 891, 893 (5th Cir. 1954).

39. 456 F.2d 1361, 1370 (Sth Cir. 1972).

useful function to communicate this information to the

jury and it is potentially harmful, . .. .” In Semke the

district court had given the instruction and this was deter-

mined to be error, but harmless error.*” Thus we conclude

that the fuilure to give an instruction on treble damages is

not reversible error.

[13] Next we turn to Gulf’s protest of Lehrman’s

method of proof. particularly his alleged use of “yard-

stick” evidence. There are two generally recognized meth-

ods of proving lost profits: (1} the before and after

theory: and (2) the yardstick test. The before and after

theory compares the plaintiff's profit record prior to the

violation with that subsequent to it. The before and after

theory is not easily adaptable to a plaintiff who is driven

out of business before he is able to compile an earnings

record sufficient to allow estimation of lost profits. There-

fore. the yardstick test is sometimes employed. It consists

of a study of the profits of business operations that are

closely comparable to the plaintiff's. Although allowances

can be made for differences between the firms. the business

used as a standard must be as nearly identical to the

plaintiff's as possible.

Lehrman’s method of proof encompassed elements of

both the before and after theory and the yardstick theory.

but it was not a classic example of cither.*’ His expert

accountant relying on the history of the station and testi-

mony from witnesses prepared a schedule representing

40. Semke was followed by the Tenth Circuit in Standard Indus-

tries, Inc. v. Mobil Oil Corp.. 475 F.2d 220, 223 (1973).

41. The two damage theories were used in conjunction in Bigelow

v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed.

652 (1946).

sales volumes of fifteen, twenty and thirty thousand gallons

per month. In the station’s best previous month only fifteen

thousand gallons had been sold, but Lehrman believed he

could sell more and one of Lehrman’s competitors testified

that if Lehrman had been able to post competitive prices

consistently he could have sold twenty-five thousand gal-

lons per month. For each volume level, profits were com-

puted by using margins of three, four and five cents per

gallon, and tie margin assumptions were adequately based

on the station’s past experience. The margins included

rent expense under the station’s lease agreement with Gulf,

but a schedule of other expenses was prepared in order to

forecast the potential for net profit. Rather than relying

exclusively on Lehrman’s past expenses the expert ac-

countant correlated his station expense data with that of

three others with whict the expert was familiar in order

to establish average monthly expense data for service sta-

tions. No attempt was made to correlate volume. margin

or profit from the other stations; only the expense figures

were used. Thus Lehrman’s method of proof was not a

traditional model of the yardstick theory.”

[14-16] Reliance upon past volumes, margins and ex-

penses in order to forecast future profits without emphasis

on pe~* profits is not the usual before and after method

either. Just because Lehrman’s method of proof is specially

tailored to fit his case, however, does not render it un-

acceptable. Indeed, this court has recognized that the task

of proving sales never made as a means of calculating

damages is a difficult one.** Thus, “while the damages may

42. For a good example of the yardstick method sce Richfield Oil

Corp. v. Karseal Corp., 271 F.2d 709 (9th Cir. 1959). cert. denied,

361 U.S. 961, 80 S.Ct. 590, 4 L.Ed.2d 543 (1960).

43. Terrell vy. Household Goods Carriers’ Bureau. 494 F.2d 16.

23 (5th Cir. 1973).

not be determined by mere speculation or guess, it wiil be

enough if the evidence show|s] the extent of the damages

as a matter of just and reasonable inference, although the

result be only approximate.’* The proof may be indirect

and it may include estimates based on aasmmptions, so

long as the assumptions rest on adequate data.** Lehr-

man’s expert’s estimates of lost future profits were based

on assmptions regarding volume of gasoline sold, margin

and station expense. These assumptions were unquestion-

ably open to challenge and Gulf did challenge them before

the jury. Evidentiary support for the assumptions, also

exists, and we perceive the resolution of the conflicting

claims as the traditional responsibility of the jury.

[17] Notwithstanding the foregoing principles Gulf vig-

orously protests the admission of Lehrman’s evidence

labeling it immaterial, irrelevant and prejudicial. First it

contends that if future profits are appropriate for consid-

eration. a point it does not concede,*" it should only be

44. Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 552,

563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931).

45. Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16. 24

(Sth Cir. 1974); Hobart Brothers Co. v. Malcolm T. Gilliland, Inc.,

471 F.2d 894, 902 (Sth Cir. 1973); Locklin v. Day-Glo Color Corp.,

429 F.2d 873, 879 (7th Cir. 1970), cert. denied, 400 U.S. 1020, 91

S.Ct. 584, 27 L.£d.2d 632: Herman Schwabe, Inc. v. United Shoe

Machinery Corp., 297 F.2d 906 (2d Cir. 1962). cert. denied 369 US.

865, 82 S.Ct. 1031, 8 L.Ed.2d 85.

46. Gulf does not abardon the position it took in regard to the

instruction: future profit is only relevant as a component of oing

concern value. Gulf continues to maintain that although Lehrman was

forced out of a station he had operated for eight years, he suffered

no damage because the station had enjoyed only meager success, and

after its closure he was freed to pv’sue other more profitable enter-

prises. We feel this contention has been adequately answered by our

discussion of the i.struction on future profits and the previous opinion

of this court.

under a before and after model, not a yardstick theory.

Since before and after evidence is available and allegedly

much more reliable than yardstick evidence Gulf feels it

should be the exclusive method of proof. It asserts that

Lehrman’s station had been in existence long enough to

establish a reliable track record from which to determine

whether or not his business would have made future net

Profits absent Gulf’s violation of the anti-trust laws, As

Gulf is undoubtedly aware this latter assertion is in direct

conflict with the conclusion reached on the first appeal.*’

Moreover, our first decision clearly contemplates the use

of “yardstick type” evidence.’ Although our initial opin-

ion is most likely sufficient to rebut Gulf’s argument thet

only before and after evidence is appropriaic. the meritless

nature of the claim seems self-evident. The assertion is

actually a variation on the theme tha: a firm that failed to

Prosper under the weigit of an antitrust violation is en-

titled to no damages because there was no substantial pro-

fit record. Judge Goldbers’s comment in Terrell v. House-

hold Goods Carriers’ Burea.\** is a Particularly appropri-

ate rebuttal.

To deny recovery to a businessman who has struggled

to establish a business in the face of wrongful conduct

47. We clearly stated:

“Particularly is the calculation of damages difficult when the

future profits of an enterprise as young as Lehrman’s must be

determined, since there is no reliable track record to look hack

on. But uncertainty cannot end the efforts of the federal courts

to redress the harm caused Proprietors by violations of the free-

dom of the marketplace. The wrongdoer must bear the risk of

the uncertainty in measuring the harm he causes.” 464 F.2d at

48. 464 F.2d at 48.

49. 494 F.2d 16, n.12 (5th Cir. 1974).

by a competitor simply because he never managed to

escape from the quicksand of red ink to the dry land of

profitable enterprise would make a mockery of the private

antitrust remedy.

[18] Second, Gulf maintains that even if yardstick evi-

dence is generally appropriate in this case, Lehrman’s

yardstick evidence was improper because the other stations

whose expenses were correlated were not nearly identical

or even closely comparable to the Lehrman Gulf station.

The one station specifically identified by Lehrman’s ac-

countant was Bill Brown’s Gulf Station in Temple, Texas.””

Gulf asserts that Temple is a growing community of

approximately 30.000 population while Mart, where

~Lehrman’s station was located, has a population of only

2,000. Furthermore, Brown's station is alleged to have

sold only two grades of gasoline, regular and premium,

while Lehrman sold three. We need not decide whether

50. In its opening brief Gulf correctly informs us that “Bill

Brown's station was not a true ‘yardstick’: in that the only figures

taken from the station on which to base projected profits were ex-

pense figures and not the actual gallonage. margin, profit or grades

of gasoline sold ratios.” (Emphasis in original). Lehrman makes al-

most identical observations in his brief; the crux of the method being

profit comparisons. In its reply brief. however, Gulf apparently dis-

avows its former position and vigorously challenges Lehrman for

implying there was no yardstick and for adopting a “no name” theory

of damages. Gulf states, “‘|nJothing could be farther from the truth.

Despige Lehrman’s protestations to contrary, the record clearly shows

that appellee's evidence of projected future net profits was in fact

based on a yardstick, Bill Brown’s Temple Gulf station.” We do not

regard the foregoing semantic controversy as the crucial focus in the

case. Rather, the inquiry should more appropriately center on whether

Lehrman’s method of proof, regardless of the label attached is “a just

and reasonable estimate of the damage based on relevant data.” Big-

elow v. RKO Pictures, Inc., 327 U.S. 251, 264. 66 S.Ct. 574, 580,

90 L.Ed. 652 (1946): Lehrman v. Gulf Oil Corp.. 464 F.2d 26, 46

(Sth Cir. 1972): Poster Exchange, Inc. vy. National Screen Service

Corp., 431 F.2d 334. 340 (5th Cir. 1970).

Brown’s station and Lehrman’s are sufficiently similar to

allow collation of profits because the data from Brown’s

station was not used in that manner. Since only Brown’s

expense data was utilized by Lehrman’s expert we cannot

perceive how Gulf was injured by the enumerated differ-

ences between the two stations.

Although the precise impact of the Brown expense

figures is not clear,”’ it may well be that their use arosc

from an abundance of caution by Lehrman and inured

to the benefit of Gulf. Expenses in a growing community

of 30,000 population may exceed those in a rural area.

In fact, Lehrman asserts and Gulf does not contest the

fact that Brown’s expenses were about $5,000 a year

more than Lehrman’s. It is probably safe to assume, there-

fore, that the Brown data had an inflationary effect on

the expense calculations. Similarly, there is no indication

that Brown’s expenses were significantly lowered by selling

two grades of gasoline instead of three.”

[19] Third, Gulf complains that “[a]/l the evidence

offered by plaintiff as to the future net profit potential of

his business was based on events, facts and business de-

velopments which occurred after Lehrman left his service

station business.” Such evidence is alleged to be inadmis-

sible under Standard Oil Co. of Cal. v. Moore.” Initially

we note, as Gulf is surely aware, that the jury was fully

51. The expert’s testimony is merely to the effect that the expense

data was correlated to arrive at average figures.

52. Assuming for the moment that the margin data was compared

as well as expense, the number of grades of gasoline sold still seems

irrelevant since Gulf’s own witness testified that the dealer’s margin

is the same on all grades.

$3. 251 F.2d 188, 221 (9th Cir. 1957), cert. denied, 356 U.S. 975,

78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958).

‘ t

informed of the station’s history under Lehrman’s opera-

tion. The real thrust of Gulf’s contention is that expense

figures drawn from Brown's station were incurred after

Lehrman’s station had closed. Guif has not shown that

this factor in any way deflated the expense figures and

thus raised the projected profits. As we have just noted

the opposite result ‘; more probable.*' Moreover, the

station had been in eaistence for a substantial period of

time prior to Brow..s operation.

Standard Oil is inapposite here because in that case

going concern value not future profits was the measure

of damages. The plaintiff, Moore, sought to establish the

market value of his goodwill as of August 15, 1952;

in that context opinions based on events, facts and busi-

ness developments occurring subsequent to that date may

indeed be irrelevant. But we do not understand that

holding to extend to estimates of expenses used to compute

future profits.” If we did we would expressly disagree.

[20,21] In addition to the contention that Lehrman’s

evidence was immaterial, irrelevant and prejudicial, it is

also claimed that it was unduly speculative and conjectural

resulting in an excessive verdict. Much of what has been

said in the foregoing paragraphs about Lehrman’s method

of proof applies with equal force to this additional con-

54. An additional factor present here is that in the economic

climate of the past decade it would be most surprising if expenses

had decreased with the passage of time.

55. See Twentieth Century-Fox Film Corp. v. Brookside Theatre

Corp., 194 F.2d 846, 855 (8th Cir.), cert. denied, 343 U.S. 942, 72

S.Ct. 1935, 96 L.Ed. 1348 (1952); Note, Private Treble Damage

Antitrust Suits, supra note 14, at n.79.

tention. Little purpose would be served in unduly lengthen-

ing this opinion by retracing that discussion and respond-

ing to each one of Gulf’s vitriolic attacks. We have pre-

viously outlined how Lehrman projected future earnings

by estimating saies volume, dealer margin and’ expense.

Lehrman testified as to his age. health and desire to stay

in the business in order to give some indication of the

appropriate duration of future prcfits.”” The specific short-

coming in the damage evidence identified on the first

appeal was corrected by the introduction of evidence con-

cerning Lehrman’s earning capacity after he left the sta-

tion.*’ Rather than characterize Lehrman’s evidence as

“rank speculation and utter guesswork” we believe it

presents a just and reasonable estimate of damages under

56. The first decision in this case clearly reserved the determina-

tion of the duration of future profits to the jury. 464 F.2d at 47.

Gulf argues that Lehrman’s age, health and personal desires are ir-

relevant under Standard Oil Co. of California y. Moore, 251 F.2d

188, 219 (9th Cir. 1957). Standard Oil, however, only held t’1ese

factors irrelevant to going concern value not to the duration of future

profits.

57. Although the verdict was reversed and remanded for a new

trial on damages for failure to consider the mitigating factor of Lehr-

man’s new earnings, the court addressed one of the specific conten-

tions that Gulf raises here.

Gulf also protests the “speculative” testimony of Ernest Brown

[appellant’s expert accountant] and urges us to hold this testi-

mony an inadequate basis for assessing Lehrman’s damages. But

Gulf me.ely protests application of the familiar rule that a

wrongdoer is responsible for uncertainty in calculating the dam-

ages proximately caused by his own wreugdoing. On the facts of

the present case, there was evidence from which a jury might

conclude that Gulf’s decision to punish Lehrman by means of its

TCA system for failure to abide by Gulf’s system of “suggested”

prices caused the demise of Lehrman’s station. Once it is apparent

that damages must be assessed so as to approximate the future

profits of a business, a court and jury necessarily enter into the

realm of the imprecise and the uncertain.

464 F.2d at 45.

difficult circumstances based on relevant data. As. this

court stated in Terrell v. Household Goods Carriers’

Bureau,” “the expert on damages need not be armed on

the right hand with a slide rule, on the left hand with a

computer. He 18 allowed’ some economic imagination so

long as it does not become fantasy.”

[22] In regard to the alleged excessiveness of the ver-

dict it is likely that Gulf would consider any amount ex-

cessive because it contends that the station had no going

concern value. This argument requires no further response.

Furthermore, we feel that the $40,000 verdict is wel!

within the jury’s province’” even though arguably generous.

There is no indication that the jury had any bias or

prejudice against Gulf, and it was specifically instructed

not to guess or speculate on its deliberations. The jury s

verdict has a firm basis in Lehrman’s projections of lost

profits.” Interestingly, the verdicts of the two juries who

heard this evidence are reasonably consistent. The first

jury returned a verdict for Lerman of $60,000. Upon

retrial the jury was instructed to deduct from its verdict

a reasonable amount attributable to Lehrman’s earnings

after leaving the gas siation business. Accordingly, the

58. 494 F.2d 16, 25 (Sth Cir. 1974).

59. See Lenz v. Southern Pacific Co., 493 F.2d 471, 472 (5th Cir.

1974). The power of an appellate court to review the excessiveness

of a verdict is extremely limited. Ross v. Newsome, 289 F.2d 209,

210-211 (Sth Cir. 1961). Great caution should be exercised before

the appellate courts interfere. St. Louis Southwestern Ry. Co. v. Wil-

liams, 397 F.2d 147, 152 (5th Cir. 1968).

60. For example, according to some of the evidence, if Lehrman,

a man of thirty-five at the time of the second trial, had operated the

station for ten years at a volume of 20,000 gallons per month with

a five cent dealer margin, his projected profits were estimated to be

$77,480.

second jury returned a verdict of $40,000. From all

appearances this jury seems to have weighed the conflict-

ing and complex evidence and performed as fact finders

in the best sense of the Anglo-American tradition.

To briefly summarize our holding, we conclude that the

instructions in this case do not require another reversal

for the following reasons: (1) future profits are an ap-

propriate measure of damages; (2) the instructions did

not permit duplicative damages to be awarded; (3) a

treble damage instruction was not necessary: (4) although

the better practice would be to include a present value

instruction, its omission here is not a ground for reversal.

Additionally, Lehrman’s evidence should not have been

excluded on the ground that it was immaterial, irrelevant

Or prejudicial; nor was it unduly speculative or conjectural,

Finaily, we have determined that the jury’s verdict was not

excessive.

Gulf has been adjudicated liable for an antitrust viola-

tion. Two juries, a district judge and now six appellate

judges have attempted to arrive at a fair damage award

within the bounds of sound precedent. Further delay would

not serve the cause of justice. Accordingly, the judgment

of the district court is affirmed.

Affirmed.

APPENDIX C

Kenneth LEHRMAN, Plaintiff-Appellee

GULF OIL CORPORATION, Defendant-Appellant

No. 29908

United States Court of Appeals

Fifth Circuit

March 15, 1972

As Modified on Denial of Rehearing and

Rehearing En Banc June 26, 1972

Action for treble damages, under Sherman Act, brought

by plaintiff contending that he had been denied price sup-

port when he refused to follow defendant's suggested retail

minimum prices on gasoline. The United States District

Court for the Western District of Texas, at Waco, Jack

Roberts, J., rendered judgment for plaintiff, and defendant

appealed. The Court of Appeals, Wisdom. Circuit Judge,

held that it was error to fail to instruct jury to make allow-

ance for piaintiff’s earnings after being forced out of busi-

ness by defendant's anti-competitive practice.

Judgment as to liability affirmed: judgment as to amount

of damages reversed and cause remanded with directions.

Before WISDOM and COLEMAN, Circuit J udges,

and BOYLE,* District Judge.

WISDOM, Circuit Judge:

(The following is the portion of the first Court of Ap-

peals opinion pertaining to the damage issue. That portion

of the opinion found at 464 F.2d 26-43 has been deleted. )

*Hon. Edward J. Boyle, Sr., U. S. District Judge. sitting by

designation,

DAMAGES

Also at issue on this appeal is the method used by the

trial court in calculating the damages to be awarded Lehr-

man. Tlie jury was asked to determine, from a general

instruction,'* the quantum of damage sustained by Lehr-

14. “In determining the damages, if any, that the Plaintiff sus-

tained as a result of a violation, if any, of the Antitrust Law, you

are to be governed by the following instructions:

The terms “business” and “property,” as used in the Antitrust

Laws, signifies that which habitually busies or engages time, attention

or labor as a principal serious concern or interest. Our law permits

the jury to take into account both any damages which may have been

inflicted on existing property and the damages which may have been

sustained as a result of being unable to make profit which reasonably

could have been anticipated and would have been realized if it were

not for the viclation of the Antitrust Laws, if any such viviation

occurred. But you are instructed that it must first be determined that

any conspiracy which may or may not have existed was a substantial,

identifiable cause of the damage, if any, to the Plaintiff.

In a suit alleging a violation of the Antitrust Laws, in order for

the Plaintiff to recover, he must prove that the violation was an

identifiable, direct and substantial cause of the damage which he sus-

tained. The Plaintiff then must satisfy you that the damage, if any,

which he suffered, was as a fact attributable to the conspiracy, if any

there existed. But while the Plaintiff has the burden of showing that

any damage which he may have sustained was the result of the vio-

lation, he would not have to prove with exact mechanical accuracy

the extent of the damages; however, the damages alleged must be

established by a preponderance of the evidence as a direct and iden-

tifiable result of a violation of the Antitrust Laws. In other words,

the Plaintiff must satisfy you th:: the damages, if any, would not

have occurred but for the viols:ion, if any.

In this case you are instructed that you cannot award any dam-

ages, if any, that may have occurred prior to March 1, 1964.

In considering the element of future profits in determining what

damages, if any, were sustained by Plaintiff, you are instructed that

if because of a conspiracy the Plaintiff was unable to earn net profits

which would in reasonable probabiiity have accrued to him but for

the conspiracy, then, Plaintiff was in fact damaged. Future profits

man as a result of the anticompetitive practices of Gulf.

The jury was authorized to find that Lehrman was dam-

aged by the amount of any future net profits which did

not accrue to him but which would have accrued to him

but which would have accrued to him in reasonable prob-

ability but for the conspiracy of which Lehrman com-

plained. The trial court cautioned the jury not to base any

calculation of future profits upon speculation or “shee:

guesswork”, but only upon “a just and reasonable esti-

mate of damage based on the relevant evidence.” The rele-

vant evidence, according to the trial judge's charge, in-

cluded “the past history and net profits of the business,

the experience and competence of ihe plaintiff in the filling

Station business, the competition which the plaintiff would

have had in and around Mart, Texas, and the general

market conditions in that area.” The jury returned a ver-

dict of $60,000 in Lehrman’s favor, and when asked. the

foreman explained that the $60.000 sum was intended to

cover a ten-year period. The district court set aside this

verdict and entered judgment for Lehrman in the amount

of $21.000 trebled ($63.C00) plus costs and interest. In

so doing. the court explained that it was reducing Lehr-

man’s damages from a period of ten years’ duration to one

of only three and a half years—the period from 1964 to

mean net projits, and are determined by subtracting the cost and

expense of a business from its gross revenue.

You afe instructed that you may consider in determining whether

or not any part of Plaintiff's damages constitute future net profits

the past history and net profits of the business, the experience and

competence of the Plaintiff in the filling station business, the com-

petition which the Plaintiff would have had in and around Mart.

Texas, and the general market conditions in that area. You may not

base any findings of damages on sheer guesswork, but must make a

just and reasonable estimate of damage based on the relevant evi-

dence.”

my 4

1967 during which Lehrman operated his Gulf station

as a lessee.*”

Gulf raises several objections to the damage calcula-

tion. First, it objects to the use of future profits as a

measure of Lehrman’s damages because, it contends

that allowing Lehrman to recover for future profits would

enable the proprietor who has been the victim of a single

anti-competitive practice to walk away from his business

and collect damages for future profits despite the possi-

bility that the business might still be operated successfully.

Gulf stresses that the cases which have allowed future

profits as a measure of antitrust damages have been cases

involving refusals to deal, or cancellation of leases, both

of which practices rendered it impossible for the proprietor

who had been damaged to continue in business.’*

[21] We do not accept Gulf’s restrictive application of

the principle of future profits as antitrust damages. When

a practice condemned by the Sherman Act puts a small

operator out of business, we do not think it matters

whether the antitrust violator directly closes down the

15. THE COURT: The Judgment is ordered in the amount of—

ordered for the Plaintiff in the amount of $21,000.00. The jury, you

will recall, stated in their findings that they based the computation

of the damages under the charge at a rae of $6,000.00 per year. The

evidence showed that the actual tenure-—and if I am wrong about

this, you gentlemen correct me—the actual time that the Defendant—

that the Plaintiff spent in the station as lessee-dealer, or whatever

he is, was three and a half years; is that correct. three and a half

years?

MR. PRICE: That is as I recall it, Your Honor.

THE COURT: All right. That is why the judgment is entered in

the amount of $21.000.00. Motion for modification or for judgment

n. o. v.. that is not a correct motion, either, that is, in response to

the motion n. o. v., but the damages are modified to that extent,

$21,000.00.

16. E.x.. Lessig v. Tidewater Oil Co., 9 Cir. 1964, 327 F.2d 459,

465: Osborn v. Sinclair Refining Co., 4 Cir. 1963, 324 F.2d 566.

small proprietor or whether he takes anti-competitive steps

which foreseeably will result in the proprietor’s demise if

carried on for a sufficient amount of time. Nor are we

persuaded by Gult’s prediction that the awarding of future

profits in this context licenses the victims of single anti-

trust violations to abandon their still-thriving businesses in

order to cash in on the bonanza of a future profits judg-

ment. The facts of the present case give no hint that Lehr-

man abandoned a successful gas station in the hopes of

securing a large judgment in his favor. After 1965, Lehr-

man struggled along until finally it was clear that the sta-

tion was not worth his while."*

17. The record reveals the following key statistics for Lehrman’s

business.

GASOLINE GALLONAGE

1960 102,219

1961 100,524

1962 106,444

1963 107,404

1964 128,750

1965 103,107

1966 81.417

1967* 62,727 *(nine and one-half months)

TOTAL SALES (rounded to next dollar)

1960 $41.344

1961 39,103

1962 39,345

1963 43.831

1964 48,985

1965 46.338

1966 38.301

1967* 28,480 *(nine and one-half months)

NET PROFIT jor (LOSS) |

1960 (31015)

1961 690

1962 ( 2971)

1963 ( 78)

1964 1376

1965 1105

1966 1295

1967* ( 2322) *(nine and one-half months)

[22, 23] Gulf also protests the “speculative” testimony

of Ernest Brown and urges us to hold this testimony an

inadequate basis for assessing Lehrman’s damages. But

Gulf merely protests application of the familiar rule that

a wrongdoer is responsible for uncertainty in calculating

the damages proximately caused by his own wrongdoing.

On the facts of the present case, there was evidence from

which a jury might conclude that Gulf’s decision to punish

Lehrman by means of its TCA system for his failure to

abide by Gulf’s system of “suggested” prices caused the

demise of Lehrman’s station. Once it is apparent that dam-

ages must be assessed so as to approximate the future pro-

fits of a business, a court and jury necessarily enter into

the realm of the imprecise and the uncertain. Particularly

is the calculation of damages difficult when the future pro-

fits of an enterprise as young as Lehrman’s must be de-

termined, since there is no reliable track record t» look

back on. But uncertainty cannot end the efforts of the

federal courts to redress the harm caused proprietors by

violations of the freedom of the marketplace. The wrong-

doer must bear the risk of the uncertainty in measuring

the harm he causes. Bigelow v. RKO Radio Pictures. Inc..

1946, 327 U.S. 251. 265, 66 S.Ct. 574. 90 L.Ed. 652:

Story Parchment Co. v. Patterson Parchment Paper Co..

1931. 282 U.S. 555. 566, 51 S.Ct. 248. 75 L.Ed. 544.

The Supreme Court has recently reminded us that “[t)rial

and appellate courts alike must also observe the practical

limits of the burden of proof which may be demanded of

a treble-damage plaintiff who seeks recovery for injuries

from a partial or total exclusion from a market; damage

issues in these cases are rarely susceptible for the kind of

concrete. detailed proof of injury which is available in

other contexts.” Zenith Radio Corp. v. Hazeltine Research.

Inc.. 1969, 395 U.S. 100, 123. 89 S.Ct. 1562, 1576, 23

L.Ed.2d 129, 148.

In characteristically forthright language, Mr. Justice

Black addressed himself to the very problem before us

when the Simpson case found its way back to the Supreme

Court, after remand, on the issue of damages. We quote

Mr. Justice Black’s explication of the Bigelow rule:

Antitrust damages such as those involved here are

bound to be “speculative” and “conjectural” to some

extent. When a person wrongfully takes government

bonds worth $10,000 on the market, the damages

can be precisely measured. But when as here a young

man’s business is wiped out root and branch by a

wrongdoer. the measurement of the victim’s damages

is not so simple a matter. This is true because no one

can infallibly predict how long that business would

have continued to grow and flourish or precisely how

much the business would have been worth to him in

25 years. But certainly a fair and just legal system is

not required by difficulties of proof to throw up its

hands in despair and leave the sufferer’s damage to

be borne by him while the person who did the wrong

goes scot free. This Court has refused under such

circu:nstances to hold that our system of justice is so

helpless to do justice. In this very antitrust field our

Court has specifically and pointedly refused to per-

mit antitrust violators to escape liability for their

wrongs on the argument that damages must not be

awarded because they are uncertain and speculative.

Simpson v. Union Oil Co., 1969, 396 U.S. 13, 16, 90

S.Ct. 30, 32, 24 L.Ed.2d 13, 16 (Black, J., concurri>g

and dissenting).

[24. 25] In short, the law is clear: the courts are to

take a charitable view of the difficulties of proving dam-

ages in a case when a treble-damage plaintiff must try to

prove what would have accrued to him in the absence of

the defendant's anticompetitive practice. Cherokee Labor-

atories, Inc. v. Rotary Drilling Services, Inc., 5 Cir. 1967,

383 F.2d 97, 106. But this tolerant view is limited by our

responsibility not to allow damages to be determined by

“guess-work” or “speculation”; we must at least insist upon

“a just and reasonable estimate of the damage based on

relevant data.” Bigelow, supra, 2t 327 U.S. 264, 66 S.Ct.

at 580, 90 L.Ed. 652; Poster Exchange, Inc. v. National

Screen Service Corp., 5 Cir. 1970, 431 F.2d 334, 338.

We must continue to be sure that damage awards of the

kind involved in the present case meet the basic require-

ments of coherency and consistency which any lawyer ex-

pects of an ordinary recovery on, say, contractual expec-

tations, perhaps the most analogous problem of damage

calculation to the one before us today. We are unable to

find the requisite degree of coherence in the damage award

before us. and we remand the cause for further proceed-

ings restricted to the question of the proper measure of

Lehrman’s damages.

To begin wiih, so far as we have been able to discern

from the record. there was no allowance in the original

jury verdict for mitigation of Lehrman’s damages by the

amount of his earnings in his current line of work. The

income tax returns in the record indicate that Lehrman’s

salary expenses of running his gas station was not incurred

as salary payments to himself; consequently, there seems

to be no possibility that Lehrman’s earnings above the net

profits of the station (in the form of a salary paid to him

by the station) might have been properly included in the

measure of his damages. Rather. it appears that when

Lehrman’s gas business folded, he was freed for other pay-

ing forms of work, and that Lehrman could be damaged

only by the excess of any lost future net profits over his

actual earnings in alternative employment. Thus, from the

outset, the $60,000 for ten years, or $6000 per year, figure

which underlay the jury verdict was based upon too broad

a conception of the damages caused Lehrman by Gulf’s

punitive withdrawal of TCAs.

Failure to instruct the jury to deduct a reasonable

amount attributable to Lehrman’s earnings after leaving

the gas station business was the only defect in the !ower

court’s charge to the jury. In light of this error in the

underlying damage calculation of $6000 per year, the

appropriateness of the didtrict court's “remittitur” is not

strictly at stake on this appeal. But we have several diffi-

culties with the court's remittitur, and think it best to

elaborate those difficulties at this point rather than to awaii

the possibility of further confusiun. error, and delay.

[26] It is not clear whether the trial court’s decision to

enter judgment for Lehrman in the amended amount of

$6,000 times three and a-half years, in lieu of the jury

determination of $6,000 times ten years, (both sun: tre-

bled). constituted a determination of law or a determina-

tion of fact. If the district court meant to hold that the

duration of the plaintiff's harm was, as a matter of fact,

only three and a-haif years. it was improper for the court

to ailow the jury to make a factual determination of ten

years and then to overrule the jury's finding of fact by

entering judgment contrary to it. The district court gave

the plaintiff no chance to decide whether he wished to

remit a portion of his damages or face the possibility of a

new trial. Instead. when there was factual uncertainty over

the amount and duration of plaintiff's harm. the court

simply took a different view from the jury’s and entered

judgment accordingly. In so doing, if that is what the

court was doing, the trial court violated the command of

the Seventh Amendment, which prohibits re-examination

of the facts found by a jury. Prochot v. Drew, 7 Cir. 1960,

283 F.2d 904, 905; see 6A Moore’s Federal Practice

#59.05 [3] n. 36.

{[27, 28] On the other hand, if the district court’s “re-

mittitur” was truly intended as a ruling that, as a matter

of law, damages incurred dy reason of an unlawful con-

spiracy to fix resale prices must be limited to the actual

years of business operation, that proposition of law can-

not stand. In cases involving refusal to deal, it is clear

that damages cannot be limited to losses sustained before

the plaintiff is unlawfully cut off from his -zpplier. E.g.,

Osborn v. Sinclair Refining Co.. 4 Cir. 1963, 324 F.2d

566. Whether a man’s business is intentionally and imme-

diately snuffed out. as by a refusal to deal, or whether it

is slowly but surely forced under by anti-competitiv:

wholesale pricing. the proper standard of measuring dam-

ages when a business is forced under by anti-competitive

activity is the same: what financial advantage would the

plaintiff have gained but for the actions of the defendant?

The duration of the period during which the plaintiff

might be expected to profit will vary from case to case:

it is susceptible of no precise formulation, and must be

left to the processes of the jury informed by the presenta-

tion of conflicting evidence. Of course. the court might

properly instruct the jury that it may consider as one fac-

tor in its deliberations the length of time which the plain-

tiff had been in business as of the time of the defendant’s

anti-competitive actions; but the youth of a business, like

the precise manner of its doing-in. will never alone be

enough to justify severe restrictions upon the duration of

damages. ‘The court may condition a new trial on remit-

titur if it feels strongly that the jury verdict is excessive.

But it is arbitrary and improper to limit damages as a

matter of law to the precise period of the plaintiff's busi-

ness operations if the reason for that limitation is either

the means used to drive the plaintiff out of business or the

relatively short history of his business before its demise.

We remand the cause to the district court for a new trial

only on the issue of damages. At the new trial, Lehrman

may introduce additional evidence to provide the jury

with a better “yardstick” to measure Lehrman’s losses.

There may be additional evidence to clarify the possible

length of Lehrman’s future tenure in the station and there-

fore the appropriate duration of future profits. Additional

evidence will likely be necessary to provide some measure

of the deduction from Lehrman’s damages which must be

attributed to the present and future earning capacity he

now has which he would not have enjoyed had he con-

tinued to look chiefly to the station for his income and to

devote most of his time to its operation.

The judgment of the district court as to Gulf’s liability

is affirmed; but that court’s judgment as to the amount of

the plaintiff's damages is reversed and the cause remanded

for further proceedings consistent with this opinion.

RESPONDENTS.

BRIEF

Supreme Court of the United States

October Term 1974

Gur On. CoRPORATION,

a ‘etitioner.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS

Page

AUTHORITIES AND CASES CITED i

TEXTS CITED ii, iii

PRELIMINARY STATEMENT 1

REASONS FOR REFUSING THE WRIT 3

1. Appellant Failed to Object to the Claimed

Defects in the Court’s Charge. 3

2. The Court’s Charge Did Not Allow the Jury

to Award Duplicative Damages. 4

3. The Court Did Not Err in Refusing to In-

struct the Jury That Any Damages Found

Would be Trebled and That Attorney’s Fees

Would be Awarded. 7

4. The Evidence Clearly Supports the Jury’s

Assessment of Damages. 8

5. There was no Improper “Yardstick” Evidence. 12

6. There was no Error in Allowing Lehrman to

Testify to Age, Health, and Desire to Stay

in Business. ioe ae

7. The Court Did Not Err in Permitting the

Introduction of Evidence of Facts Occurring

After Lehrman Ceased Operating the Sta-

tion. 15

CONCLUSION 17

: ii Authorities and Cases Cited

Page

Atlantic City Electric Co. v. General Electric Co.,

226 F. Supp. 59 (S.D.N.Y. 1964) 5-6

Bigelow v. R.K.O. Radio Pictures, Inc.,

327 U.S. 251, 66, S. Ct. 574,

90 L. Ed. 652 (1946) 13

Cape Cod Food Products v. National Cranberry

Association, 119 F. Supp. 900 ene

Clapper v. Original Tractor Cab Company,

165 F. Supp. 6

Flintkote Co. v. Lysfjord, 246 F. 2d 358,

389-390 (9 Cir.) , cert. den. 355 U.S. 835, 78 S. Ct. 54,

2 L. Ed. 2d 46 (1957) 6

State of Minnesota v. United States Steel

Corporation, 299 F. Supp. 596 (1969 U.S.D.C.,

D. Minn. 5

Richfield Oil Corporation v. Karseal Corporation,

271 F. 2d 709, cert. den. 13

Sablosky v. Paramount Film Distributing Corporation,

137, F. Supp. 929, (E.D. Pa. 1955) 7

Standard Oil of California v. Moore 15

Webster Motor Car Company v. Packard Motor Car

Company, 135 F. Supp. 4 (D.D.C. 1955) 7

William Goldman Theaters, Inc. v. Loews, Inc.,

69 F. Supp. 103 i 13

Texts Cited

Federal Jury Practice and Instructions,

Sec. 85.28 (1970) 7

Harvard Law Review, Vol. 80, p. 1566 7

Harvard Law Review, Vol. 80, 1566, 1569,

note 20 (1967) 7

Harvard Law Review, Vol. 80, p. 1575 13

Moore’s Federal Practice, Vol. 5A,

Sec. 51.04, p. 2507 4

Moore’s Federal Practice, Vol. 7,

Sec. 61.09, p. 61-33 eee: 4

No.

In the

Supreme Court of the United States

October Term 1974

KENNETH LEHRMAN,

Respondent,

Vv.

Gur O1L CorporaTION,

Petitioner.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

To The Honorable Supreme Court of the United States:

PRELIMINARY STATEMENT

The factual history of the case is well stated in the opin-

ion of this Court rendered March 15, 1972.

The first trial resulted in a decree finding Gulf guilty of

antitrust violations and assessing damages. The Fifth Cir-

cuit Court affirmed on the issue of liability, and the fact of

damages, stating “ * * * (Lehrman) could not compete with

the Waco stations and still pay the wholesale prices de-

manded of him by Gulf. In 1967, upon sustaining a sizeable

net loss, Lehrman went out of business.” The Court re-

versed for retrial on the issue of the “quantum” of damage

sustained by Lehrman as a result of the anti-competitive

practices of Gulf.

* See concluding portion of the first section of the Court’s opinion;

this is a refutation of the allegation at page 4 of the Petition that

Lehrman “abandoned” the station.

To a large degree, the opinion of March 15, 1972, (issued in

the first appeal) controls the resolution of present issues.

The basis for the remand on amount of damages was that

“* * * there was no allowance in the original jury verdict for

mitigation of Lehrman’s damages by the amount of his earn-

ings in his current line of work.” It was noted:

“Failure to instruct the jury to deduct a reasonable

amount attributable to Lehrman’s earnings after leav-

ing the gas station business was the only defect in the

lower court's charge to the jury.” (Emphasis supplied)

The Court made no other specific criticism of the evidence

relating to damages, but did, in the concluding portion of

the opinion, offer these observations:

“At the new trial, Lehrman may introduce additional

evidence to provide the jury with a better ‘yardstick’

to measure Lehrman’s losses. There may be additional

evidence to clarify the possible length of Lehrman’s

future tenure in the station, and therefore the appro-

priate duration of future profits. Additional evidence

will likely be necessary to provide some measure of

the deduction from Lehrman’s damages which must be

attributei to the present and future earning capacity

he now nas which he would not have enjoyed had he

continued to look chiefly to the station for his income

and to devote most of his time to its operation.”

On retrial, the “only defect” in the trial court’s charge was

corrected by including an instruction to the jury to deduct

“such amount of money as he [Lehrman] was reasonably

able to earn after the closing of his station from alternative

sources of income as 4 result of being freed to pursue such

alterr.stive sources of income by virtue of no longer being

required to devote labor and time to operation of the

station.” The Plaintiff introduced evidence regarding (1) the

* No objection was made to this portion of the charge, ard no

contention regarding it is made in the Petition for Certiorari.

3 a

possible length of Lehrrnan’s future tenure in the station and

(2) the deductions from Lehrman’s damages which must be

attributed to the present and future earning capacity which

he would not have enjoyed had he looked chiefly to the

station for his income. Furthermore, Plaintiff introduced

evidence regarding the amount ordinarily paid for services

of a station manager so that the picture of profits from the

operation of the station would not be distorted by failing

to take into account all expense items. In this regard the

Court instructed the jury: “that in considering the lost

profits accrued as 0? the time of closing the station, if any,

you must offset all expenses, including a reasonable amount

for Plaintiff's services as manager of the station.”

Thus, the evidence supplied the deficiencies noted in

the earlier opinion. Tested against the criteria of the opinion

and the law of damages in antitrust cases, the points raised

in this petition are revealed to be totally without merit,

In fact, certain of the points were not even properly pre-

served for review on appeal. The ensuing discussion illu-

strates both these propositions.

KEASONS FOR REFUSING THE WRIT

1. Appellant Failed to Object to the Claimed Defects in

the Court's Charge

At the conclusion of the reading of the Court’s charge to

the jury (a copy of which had previously been delivered to

counsel), Petitioner made certain objections. App. Vol. I.

42-43. There was no reference whatsoever to the claimed de-

fects aseerted in this petition.

Rule 51, F. R. C. P. provides, in pertinent part:

“No party may assign as error the giving or failure to

give an instruction unless he objects thereto before the

jury retires to consider its verdict, stating distinctly

the matter to which he objects and the grounds of his

objection. Opportunity shall be given to make the ob-

jection out of the hearing of the jury.”

Moore’s Federal Practice, Vol. 5A, Sec. 51.04, p. 2507,

points out that in the absence of objection, the Court’s

instructions ti the jury are not reviewable. It is noted that

an appellate court may in its discretion consider grounds of

error in spite of failure to object where it is apparent on

the face of the record that a miscarriage of justice may

occur; in other words, the court may review so-called “plain

error”. Obviously, this is not suck a case. Even if the

strained construction of the Court’s charge advocated by

Petitioner be adopted, the instructions assailed are innoc-

uous when considered in light of the charge as a whole, the

evidence, and the arguments to the jury. This is particularly

true when consideration is given to Rule 61, F. R. C. P., the

so-called “harmless error” rule, which is applicable to alleged

errors in the Court’s charge. See: Moore’s Vol. 7, Sec. 61.09,

p. 61-33.

Accordingly, it is clear that even if the Court’s charge

contained an erroneous instruction, the error has not been

preserved for review by this Court. The following discussion

demonstrates that no such error exists.

2. The Court's Charge Did Not Aliow the Jury to Award

Duplicative Damages.

The primary point raised by the Petitioner is that the

charge contained an erroneous instruction which allowed

the jury to award “duplicative” damages. The exact wording

of the instruction under attack is as follows: (App. Vol. I,

p. 35:)

“Our law permits the jury to take into account both any

damages which may have been inflicted on existing

property and the damages which may have been sus-

tained as a result of being unable to make profit which

may reasunably could (sic.) have been anticipated and

would have been realized if it were not for the violation

of the antitrust laws.”

Petitioner fails to note that preceding this language were

these instructions (App. Vol. I p. 34-35): ‘

“The Law provides that damages may be awarded to

any person whose business or property is injured as a

result of a violation of the antitrust laws. The term

‘business or property’ is used in the ordinary sense

and denotes a commercial venture or enterprise. You

may award damages only on the basis of proven injury

to Plaintiff's business or property.” (Emphasis, sup-

plied)

Obviously, these instructions eliminate any possible in-

vitation to award duplicate damages.

Exactly the same instructions were contained in the

Court’s charge to the jury in the first trial. (See p. 28,

slip opinion) Petitioner attacked the charge on damages,

and the testimony on which it was based, in the first ap-

peal, but the Fifth Circuit held:

“Failure to instruct the jury to deduct a reasonable

amount attributable to Lehrman’s earnings after leaving

the gas station business was the only defect in the lower

court’s cha:ge <0 the jury.” (Emphasis supplied)

The instructions assailed are merely declarative of the

applicable lav’ Title 15, U.S.C.A. Sec. 15, provides that any

person inju.e: in “his business or property” by reason of

anything forbidden in the antitrust laws may bring suit

for recovery. The thrust of Petitioner’s contention is to inter-

pret the phrase “business or property” as being mutually

exclusive. The law is clearly to the contrary. In the case

of the State of Minnesota v. United States Steel Corporation,

299 F. Supp. 569 (1969) U.S.D.C., D. Minn. the Court stated

at page 604:

“* * * a party suing for treble damages is entitled

generally to recover for (1) loss of profits, (2) decrease

in the value of investment, and (3) increased cost of

business actually transacted. Atlantic City Electric

Co. v. General Electric Co., 226 F. Supp. 59, 61

(S.D.N.Y. 1964).” (Emphasis supplied)

Atlantic City Electric Co. v. General Electric Co., 226 F.

Supp. 59 (S.D.N.Y. 1964) puts to rest any notion that a

plaintiff is not entiled to recover both lost profits and

injury to property. (See page 61 of the opinion).

Cape Cod Food Products v. National Cranberry Associa-

tion, 119 F. Supp. 900, is directly on point and could have

served as a model for the instruction in question. It holds

that in determining damages in an antitrust action, the jury

may take iniv account both the damages which were in-

flicted on existing property and the damages which were

sustained by being unable to make profits which reasonably

could be anticipated, and which would have been realize:!

by Plaintiff had it not been for the wrongdoing of the

Defendant.

Flintkote Co. v. Lysfjord, 246 F. 2d 368, cert. den. 78

S. Ct. 54, 355 U.S. 835, 2 L. Ed. 2d 46, is even more ex-

plicit. It holds that in an antitrust action out-of-pocket

expenses incurred in establishing business in another city,

out-of-pocket expenses resulting from increased cost of prod-

uct caused by Plaintiff's inability to purchase supplies, and

less of profits from inability to acquire product on a direct

basis were all recoverable in the same action, and not all or

any two were mutually exclusive. In this connection, see also

Clapper v. Original Tractor Cab Company, 165 F. Supp.,

affirmed in part and reversed in part, 270 F. 2d 616, cert. den.

361 U.S. 967.

It is cleai, therefore, that the Trial Court’s general instruc-

tions to the jury are correct, and in fact taken directly from

the text of settled authorities. The basic misconception in

the Petition is the equation of the term “existing property”

as used in the trial court’s charge, and the term “market

value”. Since the term “market value” is nowhere mentioned

in the charge, Petitioner translates “existing property” into

“market value” in order to argue that the charge allows

duplication of damages. The terms cbviously do not mean

the same thing. Petitioner’s argument fails for lack of a

valid premise, and authorities indicating that a treble dam-

age Plaintiff may not recover for decrease in market value

and loss of future profits, as senarate items, are inapplicable.

3. The Court Did not Err in Refusing to Instruct the

Jury That Any Damages Found Would be Trebled and

That Attorney's Fees Would be Awarded.

The Fifth Circuit has now determined that it is better

practice to refuse the treble damage instruction. However, to

date, no reversible error has been found in a trial court's

instruction that any awarded damages will be trebled or

that attorneys fees may also be recovered, nor for the trial

court’s refusal to do so. It has been argued that “it is unres-

sonable to assume that they [the jury] will not learn of it

anyway during the trial.” 80 Harvard Law Review 1566,

1569 note 20 (1967). Submission has been favored by Judge

Wyzanski and has received the imprimatur of Devitt and

Blackmar, Federal Jury Practice and Instructions, Sec. 85.28

(1970). But in Webster Motor Car Company v. Packard

Motor Car Company, 135 F. Supp. 4 (D.D.C. 1955) Ju-ige

Holtzoff rejected such instruction stating that there was no

reason for informing the jury that whatever damages they

would allow would be trebled, because this is a matter solely

for the Court. Sablosky v. Paramount Film Distributing

(‘crporation, 137 F. Supp. 929 (E.D. Pa. 1955) is to the same

effect.

It is only logical that an instruction to the jury informing

them that any amount awarded for damages is to be multi-

plied by three would tend to reduce the jury’s award, make

it more difficult for a plaintiff to receive actuai damages,

and thus defeat the purpose of the trebling provision. This

has been recognized by the Fifth Circuit in the present case

and in Pollock & Riley v. Pearl Brewing Co., 498 F. 2d 1240

(Fifth Circuit 1974). It has also been recognized in the

10th Circuit. See: Semke v. Enid Auto Dealers Ass’n,

456 F. 2d 1361, 1370 (10th Cir. 1972). These decisions con-

stitute the “weight of better reasoned authority” and should

be followed.

4. The Evidence Clearly Supports the Jury’s Assessment

of Damage.

Respondent introduced ali facts reasonably available for the

jury to take into account in making its damage determi-

nation. Records were introduced whi. showed the actual

expenses of and income from the siaion for the entire

period that it was in existence. See P. Ex’s 2-12, 13-15, 16-25,

35 and 46A-F. Mr. Lehrman testified that if 4< had been able

to post competitive prices he easily could have so!d at least

20,000 gallons of gasoline per month. (App. Vol. I, p. 87-88;

no objection was made to this testimony). Mr. Durst, the

Cape station representative, stated that, given competitive

prices, Lehrman cou'd have sold as high as 30,000 gallons

per month. App. Vol. I, p. 222. This testimony was cor-

roborated by the witness Jones, who detailed actual ex-

perience with stations that he owned in Mart and at Harri-

son Switch, which latter station sold at “Waco prices”. The

Harrison Switch station sold an average of more than

300,000 gallons per month, about twice the amount of gaso-

line sold by the Mart station, during the period that Lebr-

man was in operation. Later, after prices in Mart became

more competitive, (and Lehrman was out of business) the

volume of the Mart station increased to 10,000 gallons more

per month than the Harrison Switch station.

It was undisputed that, as per Gulf’s “TCA” practice, the

minimum gross margin of profit on every gallon of gasoline

was 4.5¢ per gallon and the maximum 5.8¢ per gallon depend-

ing on amount of “price support” in effect. App. Vol. I, p. 82.

By far the greatest percentage of the gasoline sold by Lehr-

man was at the top or maximum gross margin. App. 496-497.

With the exception of the year 1964, very little “price sup-

port” was in effect. App. Vol. I, p. 496-497. Deducted from the

gross margin is the rent charged to the station operator

which, in Lehrman’s case,,was one and one-quarter cent per

gallon sold at the station, ufto a maximum of $150.00 per

month. This means that the net margin, i.e. after payment

of rent, ranged’ from 3.25¢ per gallon to 455¢ per galt. Tihs

applied only on Gulftane. Lehrman always received the top

margin cn “regular” and “No-nox”. He sold approxirnately

57,000 galions of Gulftane in 1964, but there is no record avail-

able to determine how much of it was sold to farmers cz '!.ow

much of it was sold at less than the dealers margin corre-

sponding to the price support in effect. However, Mr. Lehr-

man testified as to the amount of gasoline sold at the differ-

ent dealer margins in effect for a period of time pi ‘or to 1964,

P. Ex. 53, on which he realized a net (after rei.t) margin

of approximately .4¢. Records to give a complete picture

for all years of operation were not available to Mr. Lehzman

(although Gulf undoubtedly had them). App. Vol. I, p.

496-500. Mr. Lehrman did, however, testify that in all the

years of operation the majority of the gasoline that he sold

was with the maximum dealer margin in effect, and that the

maximum dealer margin was in effect at all times after the

year 1964. App. 495-500. The testimony, therefore, indicates

that the average net dealer margin, after payment of rent,

on all gasoline sold at Lehrman’s siation was at least four

cents per gallon.

Based on this evidence an incorme analysis was made by

Mr. Ernest L. Brown. Mr. Brown was furnished with Lehr-

man’s tax returns for 1959 through 1967. App. Vol. I, p.

233-236. His analysis took inte account standard expense

items incwred by a “model” Gulf station, which were cor-

' However, since the maximum rent was $150.00 per month, the

rent per gallon would decrease when the volume exceeded 12.000

gallons per month. Thus, when sales equalled 15,000 gallons per

month, the rent was only le¢ per gallon; at 20,000 gallons per month

the rent was .75¢ per gallon; and at 30,000 gallons per month the

rent became .5¢ per gallon. This is important when considering

Mr. Brown’s income and profit analysis, for it increases the “net”

(after rent) dealer margin (as established by the Gulf T.C.A.

schedule) from a minimum range of 3.5¢ to 4.8¢, to a maximum

range of A¢ to 5.3¢.

related to Lehrman’s actual expenses and to expenses in-

curred by other stations for which Mr. Brown kept records.

App. Vol. I, p. 238-239. Income items, other than gasoline

sales income, were similarly correlated. App. Vol. I, p.

238-239. Mr. Brown’s analysis assumed gasoline sales of

15,000, 20,000 and 30,000 gallons per month, at dealer mar-

gins of three-, four-, and five-cents per gallon.’ No other

assumptions were made.

Projection periods were 10 and 20 years, corresponding

to claims for future damages. Separately analyzed was a

two and a half years term, corresponding to the “past dam-

age” period, ie., from the cutoff date contained in the

Court’s charge through the cessation of business by Lehr-

man. P. Ex. 47B, App. Vol. II, p. 88. After deducting for the

salary of a station manager, and based on margins which

take into account payment of rent, the projection for sales

of 15,000 gallons per month at .3¢ margin shows a small net

loss ($36.00 per month); see P. Ex. 47A. However, every

other projection shows a clear profit, and most show profits

cver the projection periods far exceeding the amount of

damage awarded — e.g., profit on 20,000 gallons per month

for 10 years would be $53,480.00. (See P. Ex. 47A) Further-

more, it must be remembered that the expenses used to make

the analysis were higher than those actually incurred by

Mr. Lehrman, (this was done in order to insure a fair

estimate of net profits and allow for increased expenses of

operation) by about $5,000 per year. App. Vol. I, p. 391-416.

Considering Mr. Lehrman’s actual expenses, a substantial

net profit at the lowest projected level of sales of 15,000

gallons per month at a .3¢ margin. This profit is further

increased when it is considered that, since rent was a maxi-

mum of $150.00 per month, the margin, after rent, would

be a minimum of 3.5¢ per gallon on sales of 15,000 gallons

per month.

In addition, Mr. Lehrman testified that he received far

less for the inventory and equipment when he was required

* The projection exhibits refer to retail sales prices of two grades

of gasoline, but Mr. Brown testified that these were simply retail

prices corresponding to the three-, four-, and five-cent margins,

which margins are the same regardless of grade.

tc sell than he had criginally paid for comparable inventcry

and the same equipment, to which he had added approxi-

mately $2,000.00 worth of additional equipment. The cquin-

ment had been depreciated fer income tax purpcses, but

Mr. Lehrman said that it would still “do the same job”. and,

even at the depreciated figures, there was a loss in value

(though admittedly small) of the equipment and invenicry.

App. Vol. I, p. 95-97; 124.

Thus, the evidence clearly demcnstrates loss of “preperty”

and “business” for which recovery may be made. No at-

tempt was made to evaluate so-called “market-value” or

“good will” value by taking into account, in “lump” fashion,

the value of property and business intangibles (including

profits). Mr. Lehrman did not sell his “business” to Mr. Law-

rence, and could not have done so, since Gulf retained the

right to designate the station’s dealer. As a practical mat-

ter, because of the inherent nature of the arrangement be-

tween Gulf and the dealer (which type of arrangement

has been characterized as “economic serfdom”,) the dealer

is not in position to acquire “market” or “good will’ value.

This is made abundantly clear by the cross-examination

of the Gulf witnesses Lander, App. 306 et. seq., and Kiesling,

app. 336, et. seq. :

The matter of the so-called “market value” of the station

was thoroughly aired during trial. The jury was instructed

by argument from Respondent’s counsel that there was no

practical way to evaluate market value, and therefore dam-

ages were to be measured by what would be, in effect, only

one constituent element of market value, i.e., the lost profits.

(There was no appreciable effort to argue the other con-

stituent element in evidence, i.e., loss inflicted upon existing

property). Likewise, the point was heavily argued ‘vy Gulf’s

attorney, who told the jury that the only proper measure

of damages was loss of market value, and that there was no

such loss.

Accordingly, it is clear that the damage award is well

supported by the evidence, and the contention that the

Court’s charge led to duplication of damages is without

merit.

5. There was no Improper “Yardstick” Evidence.

Petitioner’s assault upon the evidence embodies the

contention that the Trial Court allowed the Respondent

to introduce evidence of a confused “yardstick” theory, in

which the “model” station was not “closely comparable”

or “nearly identical” to Respondent’s station. Because of

this, Petitioner contends, the Court erred in allowing in-

treduction of evidence relating to the “yardstick”, which

was irrelevant and immaterial.

To fortify the argument, the Petitioner assails the testi-

mony of Mr. Brown that expenses included in his pro-

jection were based upon those of a Gulf station in Temple,

Texas. Petitioner ignores the testimony that the expenses

in the projection were not “exactly” those of the Temple

station, but were correlated to expenses of Lehrman’s station

as well as other stations. See: App. Vol. I, p. 237. These ex-

pense items were used in order that a fair estimate of the

cost of operating over the period of projection could be

ascertained. Income was determined by gasoline sales of

certain volumes (for which there was evidentiary support)

at fixed margins (which correlated to the margins estab-

lished by Gulf’s TCA system, after deduction of rent) and

by oil and TBA sales and mechanic work correlated to the

volume of gasoline sold (testimony as to ordinary mark-up

on oil and TBA, and the correlation betwecn gasoline sales

and oil and TBA sales and mechanic was introduced through

Lehrman and Brown without objection.)

Petitioner does not make a specific attack upon the fig-

ures employed, but simply challenges the use of figures in

any way relating to a station other than Lehrman’s. How-

ever, it appears that the Petitioner has waived any possible

error by failure to object to the evidence when it was of-

fered during the trial. Mr. Brown’s analysis and projections,

based upon the figures the use of which is now challenged,

are embodied in Exhibits No. 36, 47-A, and 47-B. The testi-

mony qualifying these exhibits is reproduced in the margin

at pgs. 23-28 of Appellees brief, and at App. p. 236, line 12,

p. 242, line 23. At the conclusion of the qualification and

upon offer of the Exhibits, Mr. Bailey, Attorney for the

Petitioner stated “No objection”. App. Vol. I, p. 242.

This should dispose of the point. However, a complete

answer to Petitioner’s argument will be made to demonstrate

that there was, in fact, no error.

Respondent did not employ a “yardstick” thee ‘y of dam-

ages. This theory is explained in Vol. 86 ’ arvard Law

Review, p. 1566, at page 1575:

“A second theory of damages, the “yardstick” test,

which consists of studies of the profits of firms closely

comparable to Plaintiff’s, is necessary because the “be-

fore and after” theory is not available to a plaintiff

who is driven out of business by an antitrust violation

before he is able to compile an earnings record sufficient

to allow estimation of lost profits. But the two theories

are not mutually exclusive and have been used to-

gether ... [citing Bigelow v. k.K.O. Radio Pictures, Inc.,

322 U.S. 251, (1946). The fundamental limitation on the

yardstick test is that the business used as a standard

must be as nearly identical to the plaintiff as possible,

but unharmed by the violation, so that it can be con-

cluded that plaintiff’s profit record would have peralleled

the other firms had the violation not intervened .. . (Cit-

ing William Goldman Theaters, Inc. v. Loews, Inc., 69

F. Supp. 103) Allowances can be made for differences

between the firms .. . [Citing Richfield Oil Corpora-

tion v. Karseal Corporation, 271 F. 2d 709, cert. den.,

which is referred to as one of the best examples of use

of the yardstick test]. Sometimes the only available

yardstick is the Defendant’s own business. Here the

problem of estimating compensatcry damages is aggra-

vated by the need to isolate the amount by which the

Defendant’s protits were increased over a competitive

level by his violation.” (Emphasis supplied )

Obviously, therefore, there was no “yardstick” theory

employed because there is no reference in the testimony

to “profit” of the so-called “model” station. There was no

effort to compare profits, which is the crux of the “yard-

stick” method. Respondent simply went to the best avail-

able sources, including his own records, to authoritatively

document and establish the types and amounts of expenses

ordinarily incurred in service station operations in order to

fairly estimate net profit resulting from different levels of

gasoline sales.

Even if this could be considered application of the “vard-

stick” theory, it is clear from the above quotation that there

is nothing improper in the evidence. The “yardstick” and

the actual figures from Lehrman’s operation are in evidence,

and “yardstick” is not exclusive of other methods of measur-

ing lost profits. Furthermore, allowance can be made for

the differences between yardstick firms, and certainly the

Petitioner went to lengths to establish the differences in

cross-examination of Mr. Brown, independent testimony ad-

duced before the jury, and jury argument.

In fact, the same differences urged upon the jury are the

ones relied upon by Gulf in advancing the contention that

the evidence was inadmissible. Petitioner says that Temple,

Texas, is larger than Mart, Texas —a point not in dispute.

But the only pertinent factor is whether the evidence shows

that Lehrman’s station, in the absence of the antitrust

violation, could have sold gasoline at any of the levels com-

prehended by the projection (i.e. from 15,000-30,000 gallons

a month). There is evidence that he could (and did, i.e.,

he sold 15,000 gallons one month when he had competitive

prices).

The authorities cited by Petitioner dealing with the

“yardstick” theory have no application. The Respondent

made no attempt to analyze profits from the Temple station

or to employ a “yardstick” to measure loss. No case cited

by Petitioner holds that the type of evidence here involved

is inadmissible, or that its introduction requires reversal.

It is clear that this point is wholly without merit.

6. There Was No Error in Allowing Lehrman to Testify

to Age, Health, and Desire to Stay in Business.

Petitioner argues that allowing testimony as to hea!th,

age, and desire to stay in business, was improper. Contrary

to the statement that the Fifth Circuit recognized this to

be in direct conflict with Standard Oil Co. v. Moore, 251 F. 2d

188, (9th Cir. 1957) the lower court correctly disposed of

this contention in the following passage (footnote 56):

“The first decision in this case clearly reserved the

determination of the duration of future profits to the

jury. 464 F. 2d at 47. Gulf argues that Lehrman’s age,

health and personal d sires are irrelevant under Stand-

ard Oil of California v. Moore, 251 F. 2d 188, 219 (9th

Cir. 1957). Standard Oil, however, only held these fac-

tors irrelevant to going concern value not to the du-

ration of future profits.”

This point is without merit.

7. The Court Did Not Err in Permitting the Introduction

of Evidence of Facts Occurring After Lehrman Ceased

Operating the Station.

Petitioner makes the statement that all of the evidence

of future net profit potential was based on “events, facts,

and business developments” which occurred after Lehrman

ceased operating the station. By “events, facts, and business

developments” it appears that Petitioner means evidence

of expenses relating to the Temple station.

Even if Petitioner’s assessment was literally correct it

would hardly constitute a valid objection. To the contrary,

when loss of “future” net profits are measured, the most

pertinent evidence is that of expense figures, etc. occurring

during the projected period ie., after the business closes

(if such are available). But it is not correct. Mr. Brown

testified that expense figures taken from the Temple station

were not used exactly, but correlated with Mr. Lehrman’s

figures and with figures from other stations with which he

had dealings. Mr. Brown took ordinary expense items, on

an annual basis, and divided by 12, in order to get a monthly

average to use as a basis for the projection. App. Vol. I,

p. 254.”

Gulf states that the Temple station, identified as “Bill

Brown's Gulf Service Station Business”, did not even come

into existence until February of 1968. There is testimony

from Mr. C. D. Brown, a retired Gulf distributor, that the

station opened operations under Bill Brown in February

1968, but he also testified on cross examination that the sta-

tion had been in existence long prior to that time, and had

three previous dealers. It is apparent that since these figures

were correlated to Mr. Lehrman’s actual expense figures, and

the actual expense figures are in the record, there could be

no possible error in allowing their use in the projection.

Petitioner cites Standard Oil of California v. Moore,

supra for the holding that testimony as to damages was

inadmissible when it was based “in part upon certain events,

facts, and business developments subsequent to” the date

Moore’s service station business was destroyed. However,

Petitioner does not discuss the “facts, events and business

developments” considered in Moore. When the opinion is

examined it is apparent that it has no bearing upon this

case.

This point likewise has no merit.

*Mr. Brown first testified to the basic projection figures in

the first trial. Mr. Lehrman went out of business in late 1967.

fgg te er bey applies hy _ ania

ter opera a very i

immediately after Lehrman left the station.

CONCLUSION

For the reasons set forth above, the Petition for writ of

certiorari should be denied.

Respectfully submitted,

fj . PRE ,

feck Ti. fAtec

‘Jack N. PRICE,

Price, FisHer, PATTON

& McLemore,

P. O. Box 511,

Longview, Texas 75t,)1,

CuarLes M. McDona _p,

McLaucHLIn, CLARK, FISHER,

Gorin & McDona.p,

505 Alico Center,

Waco, Texas 81701,

Attorneys for

Plaintiff-A ppellee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.