a defense of payment arising from the prior settlement because a plaintiff who has recovered any item of damages from one co-conspirator may not again recover the same item from another co-conspirator. 401 U.S. at 348, 91 S. Ct. at 811, 28 L. Ed. 2d at 97. See also Wainwright v. Kraftco Corporation, 58 F.R.D. 9, 11-12 (N.D.Ga.1973).
Likewise, in the present case Wilson cannot claim that it was covered by the joint-tortfeasor release because the plaintiff expressly reserved all his rights against Wilson. (Trans. No. 1 at page 5). According to Zenith, however, the remaining defendant is entitled to a defense of payment to the extent that the $60,000 settlement with Cooper-Jarrett and Matlack covers items of damages included in the $75,000 judgment against Wilson. The problem, therefore, is to determine the overlap between the settlement amount and the judgment against Wilson.
Wilson argues that the $60,000 settlement amount should be deducted in full from the $75,000 judgment, citing Essaness Theatres Corporation v. Balaban & Katz Corporation, Trade Reg.Rep. (1955 Trade Cases) P 68,152, at 70,735 (N.D.Ill.1955). In Essaness Theatres the plaintiff brought a civil antitrust action against numerous defendants alleging a conspiracy to establish minimum admission prices at Chicago movie theaters, but because the statute of limitations had been tolled for most but not all of the defendants, the damage period was considerably shorter for two of the joint defendants. The district court stated that because joint tortfeasors are jointly and severably liable, there can be no apportionment of damages between them. The court concluded that since a judgment against joint tortfeasors must be entered in a single sum against all defendants, it follows that there must be a damage period common to all. The court, therefore, held that if the plaintiff wished to hold in the two defendants for whom the statute of limitations had not been tolled, the damage period for all defendants would be limited to the shorter period applying to these two defendants.
Wilson argues that under Essaness Theatres, the damage period as to Cooper-Jarrett and Matlack in the present case would have been restricted to the time from which Wilson joined the existing conspiracy and, therefore, the settlement amount covers only those items of damages which provided the basis for the judgment against Wilson. This analysis would require the full settlement amount to be deducted from plaintiff's judgment. We decline, however, to apply the reasoning of Essaness Theatres to the present case. Unlike that case in which a judgment might have been entered against more than one defendant, the plaintiff in our case has obtained a judgment against a single defendant, Wilson Freight Company. The district court's concern in Essaness Theatres -- that under Illinois law, separate executions in different amounts may not issue against joint tortfeasors who are bound by the same judgment -- does not exist in the present case. Moreover, if Cooper-Jarrett and Matlack had elected to proceed to trial, it is not clear that their liability would have been limited to the period after Wilson had joined the conspiracy. The general rule appears to be that one who joins an on-going conspiracy is equally culpable with the original members and is responsible for all that has previously been done pursuant to the conspiracy. See, e.g., United States v. Lester, 282 F.2d 750 (3d Cir. 1960), cert. denied, 364 U.S. 937, 81 S. Ct. 385, 5 L. Ed. 2d 368 (1961); Lefco v. United States, 74 F.2d 66 (3d Cir. 1934); Ratner v. Scientific Resources Corp., 53 F.R.D. 325 (S.D.Fla.1971), appeal dismissed, 462 F.2d 616 (5th Cir. 1972); Rubenstein v. Columbia Pictures Corp., 154 F. Supp. 216 (D.Minn.1957); Walder v. Paramount Publix Corp., 132 F. Supp. 912 (S.D.N.Y.1955); 16 Am.Jur.2d, Conspiracy § 15 (1964). Wilson, therefore, may have been jointly liable for damages caused by the other two conspirators prior to its own entry into the existing conspiracy.
We find, however, that the settlement amount paid by Cooper-Jarrett and Matlack did include items of damages which were not part of the judgment against Wilson and, therefore, the defendant is not entitled to a deduction of the full settlement amount. At the close of all the evidence in the case, counsel met with the court in chambers to discuss the charge to the jury. With respect to the proper measure of damages, the defendant suggested that Wilson would be liable only for damages arising after it joined the conspiracy, rather than from the inception of the conspiracy, and the plaintiff agreed to that instruction. (Trans. No. 2 at p. 399). Accordingly, the court charged that if Wilson were found to have joined a conspiracy to blacklist the plaintiff, Wilson would be liable only for damages from the date on which it entered the conspiracy -- August 24, 1971, the date when the plaintiff filed his application for employment. (Trans. No. 1 at p. 329). In this it may well be that Wilson got a better instruction than it was entitled to. Neither party, however, made timely objection to this instruction requested by Wilson and under Rule 51 of the Federal Rules of Civil Procedure, it may not now be assigned as error.
While the judgment against Wilson includes damages incurred only after August 24, 1971, the $60,000 settlement includes items of damages which arose before that date as well as after. The evidence in this case tended to show that Cooper-Jarrett had recruited Matlack in its efforts to blacklist the plaintiff prior to the time that Wilson joined the conspiracy. The Zenith rule prohibiting double recovery by a plaintiff, therefore, does not require the whole settlement amount to be deducted from the judgment. Only that portion of the settlement amount which covers items of damages arising after August 24, 1971 must be deducted from the judgment pursuant to the Zenith rule.
The first step in arriving at the appropriate portion of the settlement amount to be deducted from the judgment is to determine the total damages suffered by the plaintiff as a result of the conspiracy. Pursuant to the court's instructions, the jury found that the plaintiff incurred $25,000 in damages subsequent to August 24, 1971. We must, therefore, determine the amount of damages arising during the period between the inception of the conspiracy and August 24, 1971. Although Cooper-Jarrett may have intended to enlist other trucking companies to blacklist the plaintiff immediately after firing him on October 23, 1970, a conspiracy requires two or more parties. See Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S. Ct. 783, 97 L. Ed. 1356 (1953). Evidence in the record tends to show that the earliest date on which a conspiracy was in existence was February 1971, when the plaintiff applied for work at Matlack, but was turned down because "the word was out from Cooper-Jarrett". (Trans. No. 1 at p. 133; Trans. No. 2 at pp. 120, 222).
During the course of the trial both parties spent a considerable amount of time in an effort to show the proper measure of plaintiff's damages. The court permitted the plaintiff to introduce evidence of past earnings as an indication of what he might have earned if he had not been the target of the alleged conspiracy, and the defendant conducted an extensive cross-examination as to these earnings and introduced evidence to mitigate the claimed damages. This evidence provides a sufficient basis for the court to determine damages arising between February 1971 and August 24, 1971 -- a period of about six months. Damages in a case such as this are seldom capable of precise determination, but the best evidence in the record of plaintiff's lost earnings between February 1971 and August 24, 1971 can be derived from the 1971 Wage and Tax Statement (Form W-2) of Richard Conley, another Cooper-Jarrett over-the-road truck driver with less seniority than the plaintiff, which was admitted into evidence as Plaintiff's Exhibit 11. (Trans. No. 1 at p. 127). This Form W-2 shows that Conley earned $17,963.24 during 1971 which is approximately $1500 per month. Applying this measure of damages to the plaintiff, plaintiff's lost earnings would equal $9,000 over the six-month period in question.
In mitigation of these damages, we must subtract any wages earned by the plaintiff between February 1971 and August 24, 1971. The plaintiff testified that after being fired by Cooper-Jarrett on October 23, 1970, the first employment he found was with International Cold Storage. (Trans. No. 1 at pp. 62-63). The evidence further shows that the plaintiff worked for International Cold Storage from April 14, 1971 to December 6, 1971 -- a period of about eight months. (Trans. No. 1 at p. 88). Plaintiff's 1971 Individual Income Tax Return, admitted into evidence as Defendant's Exhibit D, reveals that the plaintiff earned $7,588.98 while working for International Cold Storage which is approximately $950 per month. During the period between February 1971 and August 24, 1971, the plaintiff worked approximately four months for International Cold Storage earning some $3800. When we subtract this amount from plaintiff's lost earnings of $9000, we arrive at net damages of $5200 for the period between the inception of the conspiracy and August 24, 1971. By adding this $5200 amount to the $25,000 damage figure which the jury found for the period after August 24, 1971, we conclude that the plaintiff suffered total damages of $30,200 as a result of the conspiracy.
Since the $60,000 payment by Cooper-Jarrett and Matlack was in settlement of all plaintiff's damages arising from the antitrust claim, once total damages are found the next step is to determine the percentage of these total damages which were incurred after August 24, 1971. This approach will give a fair indication of the percentage of the settlement amount which covered the same items providing the basis for the jury's verdict. By dividing the total damages into $25,000, we find that about 83 percent of the total damages were suffered after August 24, 1971, and 83 percent of the settlement amount equals $49,800. This amount constitutes double damages for which Wilson may present the defense of payment according to the Zenith rule. Under Flintkote Co. v. Lysfjord, 246 F.2d 368 (9th Cir.), cert. denied, 355 U.S. 835, 78 S. Ct. 54, 2 L. Ed. 2d 46 (1957), the jury's verdict must be trebled before the appropriate amount of the settlement may be deducted. The judgment against Wilson, therefore, should be reduced from $75,000 to $25,200.
In conclusion, the plaintiff may recover only once for the same items of damages. Since the jury's verdict was based only on damages incurred after August 24, 1971, while the settlement amount covered damages suffered both before and after that date, Wilson is entitled to a deduction of only that portion of the settlement which covered damages after August 24, 1971. The plaintiff's argument that the jury found damages only against Wilson and that none of the settlement amount paid by its alleged co-conspirators may be deducted is not convincing. A conspiracy in violation of the Sherman Act requires two or more partes who become jointly and severably liable for the resulting damages. By finding for the plaintiff in this antitrust case, the jury by implication found that Wilson was not the only culpable party. An amount paid in settlement by one conspirator, therefore, may provide a defense of payment for a co-conspirator under the Zenith rule if it covers the same items of damages.