Hal FULENWIDER, Jr., and Marion Fulenwider, individually and as co-partners d/b/a Easy Glitter Wax Co., Appellants, v. Elmer WHEELER, Appellee, 262 F.2d 97

HUTCHESON, Chief Judge. Appellants Fulenwider appeal from a judgment for $25,000, rendered upon ■jury verdict by the court below in favor of appellee Wheeler for breach of a contract of employment for one year beginning February 1, 1955. The contract called for the payment of $50,000, and appellants had paid appellee $10,908.

Appellants raised questions concerning whether appellee was properly performing his contract and, on August 24th, directed a lengthy letter to appellee calling upon him to perform detailed services over a period of five or six months, which they contended were embraced in and required by the contract.

After an exchange of letters, lengthy records, and one or more telephone conversations, which were read into evidence, appellants wrote appellee August 31, 1955, stating: “In view of your failure to perform under our agreement we have no alternative but to conclude that you have terminated our agreement * * * I have reluctantly turned the matter over to our attorney for study and advice with respect to losses suffered by us due to your failure to perform our agreement.” The matter comes here in this way.

Alleging: that on January 27, 1955, plaintiff was a highly specialized and widely known national adviser-consultant in the conception, initiation, designing, implementation, guidance and management of sales programs and promotions, and that on that day he and defendants entered into a contract that between February 1, 1955, and February 1, 1956, plaintiff would work with defendants in an effort to increase defendants’ sale program, policies, organization and technique, for which defendants agreed to pay plaintiff $50,000; and further alleging: that immediately thereafter plaintiff entered upon the performance of, and performed, the contract until August 31, 1955, when defendants, wrongfully repudiating and breaching it, discharged plaintiff from their employ and prevented his further performing; plaintiff brought this suit to recover his damages.

The defendants answered, denying plaintiff’s charge and, alleging by counter claim, which was later abandoned, that it was plaintiff who had breached his contract and the defendants who were damaged, sought judgment for $60,000.

The cause coming on for a jury trial on the issues thus joined on plaintiff’s demand, and, evidence abundantly sustaining plaintiff’s claims, indeed admitting of no reasonable view to the contrary having been offered, the cause was sent to the jury on a charge, which was fully discussed with the court and agreed to by the parties, and to which no objection or exception was taken, and there was a verdict and judgment for plaintiff.

Conceding, as they must, that the evidence fully supports, if indeed it does not demand, the verdict for plaintiff, appellants present three specifications of error ******and seek a reversal based on rulings which rested largely in the sound discretion of the court and which, under the evidence in this case, where the verdict and judgment are clearly in accord with the truth and right of it, may be made the basis for reversal only where it is made to appear not merely that the ruling might have been the other way but that, as made, there was a grave and serious abuse of discretion and substantial injury resulting therefrom, and this is not shown here.

Examining each of the specifications in turn, in the light of the record, we are of the clear opinion that not one of them presents a reason for reversal of the judgment, and it must be affirmed. Of the first, the denial of defendants’ request to require production of plaintiff’s income tax returns, it is sufficient to say that the whole matter of discovery is one resting within the sound discretion of the trial court, that there is no showing made on this record, there could not be, that the court below abused its discretion, none that if there was error, it was, or could be, prejudicial.

The second specification is no better taken. The conversation between Koonce and Barge, to which Barge testified by deposition, only a brief part of which was offered, occurred just after the writing by Koonce of the crucial letter to Wheeler, in which he made the wholly unwarranted, indeed fantastic demands on him, which as the jury found, the defendants intended and hoped Wheeler would refuse, giving them grounds, as they thought, for discharging him.

Under the undisputed evidence in this case, Koonce was not merely the sales manager, a highly placed and responsible officer in defendants’ organization but, as testified to by Fulenwider, he was a real part of it, and had a working interest in it, in that, instead of drawing his money out, he had put it in the business.

It was Koonce, too, who in collaboration with Fulenwider, wrote the letter which, considering Wheeler’s equipment, accomplishments, and activities, the nature of his business and the circumstances of his employment, including the large compensation agreed to be paid him, made wholly unreasonable demands upon him. These included a demand that he absent himself from his office for five or six months and travel about the country with Koonce from filling station to filling station when Fulenwider, himself, testified that it had been agreed that Wheeler was not to be absent from his own office for a lengthy period.

In these circumstances, with Koonce’s letter the storm center of the whole case, there is, we think, no basis for the claim that statements made by him as sales manager and general factotum, shortly after writing the letter and while the scheme for getting rid of Wheeler was still under way, are not admissible as a part of the res gestae of the whole transaction and as showing the state of mind of those responsible for the campaign. Under the undisputed evidence, the contention of appellants that, when this conversation with Barge was had, Koonce was performing no duties for defendants, is clearly without merit.

The plan had been formed, the stage had been set, and it was only a question of a day or so before it would be known with what effect. We are, therefore, of the clear opinion that the judge was right in admitting the testimony and no error was shown. We are further of the opinion that, taking the record in this case as a whole, if there was error, it was not prejudicial but harmless error because the facts conclusively established the making and carrying out of the scheme to force appellee out. Cf. Patterson v. Pennsylvania R. R. Co., 6 Cir., 238 F.2d 645; Community Natural Gas Co. v.

Henley, 5 Cir., 54 F.2d 59, at page 61; Kilmer v. Gustafson, 5 Cir., 211 F.2d 781; F.R.C.P. Rule 61, Harmless Error, 28 U.S.C.A. We come, then, to the third specification, Barge’s recantation affidavit, to say of it that the district judge not only acted with discretion in refusing the motion for new trial under Rule 60(

b) Rules of Civil Procedure, but that it would have been an abuse of his discretion to act otherwise.

For, as the authorities, collected in 28 U.S.C.A. and Supplements in the notes under Rules 59 and 60, Rules of Civil Procedure, uniformly declare, it is in the absence of a clear abuse of discretion for the trial judge and not the appellate judges to say whether the case is one for setting aside the verdict, and the district judge should not set aside a verdict on such a motion unless it appears to him that the tendered evidence is of such a nature that if offered on a new trial, it would probably change the outcome. English v. Mattson, 5 Cir., 214 F.2d 406, Ferrell v.

Trailmobile, Inc., 5 Cir., 223 F.2d 697, Newman v. United States, 5 Cir., 238 F.2d 861, Tomley v. United States, 5 Cir., 260 F.2d 468, and many other cases which are cited in the notes to the rules show that only in extreme and unusual cases will a court of appeals be justified in interfering with the action of the district judge, and the undisputed evidence shows that this is not such a case.

In plaintiff’s answering affidavit, he not only categorically refutes Barge’s statements tendered in recantation, that he perjured himself in some respects on the trial, but supports the refutation by attaching a letter to the plaintiff written by Barge before the suit was filed, which, asking Wheeler to join a claim for him in his suit against the defendants, is entirely consistent with his deposition testimony and wholly inconsistent with his recanting.

In denying the motion “without prejudice to the defendants to proceed by independent action as otherwise provided by rule or statute”, the district judge acted well within his discretion. The judgment was right. It is affirmed. . These are:

(1) The Court erred in denying defendants’ motion to require the production of plaintiff’s income tax returns for the several years, 1958, 1954, 1955, and 1956.

(2) The Court erred in admitting into evidence over objection of counsel for the defendants, testimony from the deposition of Claude Rarge with reference to conversations between himself and Jack Koonce.

(3) The Court erred in denying the defendants’ motion to vacate judgment on the grounds specified in Rule 60(

b) of the Federal Rules of Civil Procedure, and for new trial. . To questions asked Mm by deposition, Fulenwider testified: “Q. Exactly what was it that Elmer Wheeler was supposed to do for Easy Glitter under the agreement as you claim it existed? A. He was to prepare and help prepare material to be put in printed form to aid our sales organization. He was to be at various locations to conduct training sessions of these men in how to use these sales training aids.

He was also to appear at various locations with a program specifically designed for the service station operator so that he could conduct these little meetings to where the men running the service stations could come from a radius of about fifty miles that care to come and attend them, and pick up whatever pointers they might be able to pick up.” “Q. Did you contemplate at the time the agreement was negotiated and entered into in January of 1955 that Mr. Wheeler would be required to leave Texas and be on the road for as much as six months at a time? A. No.” . Braswell v.

United States, 5 Cir., 200 F.2d 597; Carantzas v. Iowa Mutual Ins. Co., 5 Cir., 235 F.2d 193; Garford Trucking Corp. v. Mann, 1 Cir., 163 F.2d 71, certiorari denied 332 U.S. 810, 68 S.Ct. 112, 92 L.Ed. 388; Jacksonville Paper Co. v. N. L. R. B., 5 Cir., 137 F.2d 148; Johnson v. J. H. Yost Lumber Co., 8 Cir., 117 F.2d 53; Mattox v. News Snydicate Co., 2 Cir., 176 F.2d 897, 12 A.L.R.2d 988, certiorari denied 338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 525; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801.