author: HUYETT, District Judge.

text:
    Bessie H. WISE, for herself and as administratrix of the estate of Robert H. Wise, Deceased, et al., Appellant, v. GEORGE C. ROTHWELL, INC. and William B. Harrington, Appellees.
    No. 73-1671.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 12, 1974.
    Decided April 23, 1974.

      Richard L. Polin, Philadelphia, Pa., John Merwin Bader, Bader Dorsey & Kreshtool, Wilmington, Del., for appellant.
    F. Alton Tybout, Wilmington, Del., for appellees.
    Before VAN DUSEN and ADAMS, Circuit Judges, and HUYETT, District Judge.
   OPINION OF THE COURT

HUYETT, District Judge.

Appellant seeks reversal of the district court judgment, entered after trial without a jury, finding the appellee not negligent in the operation of a tractor trailer truck while proceeding from a private road onto a through highway. Because we consider the district court to have applied an erroneous standard of care under Delaware law in determining the question of appellees’ negligence and because we are unable to find on the record before us that appellant’s decedent was contributorily negligent as a matter of law, we vacate the judgment of the district court and remand for consideration in accordance with our opinion.

Delaware Route 24 is a two-lane highway running east-west at the point where the vehicular accident giving rise to this action occurred. The plant complex of Townsend, Inc. (Townsend) is located on Route 24 two miles east of Millsboro, Delaware. A private road leading from the Townsend plant forms a T-intersection from the south with Route 24. For a mile west of the Townsend plant Route 24 is a straight road.

At about 10:45 P.M. on October 23, 1969, appellant’s decedent, Robert H. Wise, was traveling, eastward on Route 24. There is conflicting evidence in the record concerning the number of vehicles in front of the decedent’s car as he approached the area of the Townsend plant. It is clear that there was at least one vehicle, a car driven by Ann Norwood, in front of the decedent’s car. The district court found that there was also a truck operated by Paul Wothers between the decedent’s car and the Nor-wood car traveling east toward the Townsend plant. Norwood testified that she saw the headlights of a vehicle behind her as she turned a curve a little ; more than a mile before the Townsend plant. She was unable to determine, however, whether the vehicle behind her was a car or a truck; nor was she able to estimate the distance the vehicle behind her was from her car other than that the vehicle was no more than a half mile behind her car.

Appellee, Harrington, was at the time of the accident operating a tractor trailer owned by Rothwell. As the Norwood car, traveling on Route 24, approached the private roadway on the Townsend property, appellee’s truck was either standing in the private roadway at the edge of Route 24 or just approaching Route 24 preparing to make a left turn onto Route 24. Having allowed the Nor-wood car to pass him on Route 24, Harrington pulled out onto Route 24 intending to turn left.

Harrington testified that he looked west after the Norwood car had passed him and saw a set of headlights. It was Harrington’s testimony that when he pulled out from the private road the approaching vehicle was about a half mile away. He also testified that he was 10 to 15 seconds into his turn when the impact of decedent’s car with the truck occurred. The left side of Wise’s vehicle collided with the Rothwell truck at a point just in front of the rear tandem wheels of the trailer.

After analyzing the evidence in the record and after considering the credibility of the witnesses who had testified, the district court determined that sufficient time existed to allow Harrington to make a left turn onto Route 24 without creating an “immediate hazard” to the traffic approaching the private Townsend road. Largely crediting Harrington’s testimony the district court found that at least ten seconds elapsed from the time Harrington began to cross Route 24 and the time the impact occurred. Ten seconds was considered sufficient time to allow a vehicle traveling east at a reasonable speed to slow down so as to prevent a collision with a vehicle crossing Route 24 from the private road.

The Delaware statute governing the conduct of a person proceeding from a private road onto a through highway-states :

The driver of a vehicle about to enter or cross a highway from a private road or driveway or from a crossover on a divided highway shall yield the right of way to all vehicles approaching on the highway.

We must determine the standard of care this statute imposes on a person proceeding from a private road onto a through highway. In making this determination we are bound to apply the standard of care the Delaware Supreme Court would apply were that court faced with the issue now before us. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). And when there is “no decision by [the State’s highest court] then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, it may be said to be, in effect, sitting as a state court. Bernhardt v. Polygraphic Co., 350 U.S. 198 [, 76 S. Ct. 273, 100 L.Ed. 199] (1956).” Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. at 465, 87 S.Ct. at 1783, supra. See also Quinones v. United States, 492 F.2d 1269 (3 Cir. filed March 6, 1974); In re Royal Electrotype Corporation, 485 F.2d 394 (3 Cir. 1973).

The Delaware Supreme Court has not addressed itself to the standard of care imposed by 21 Del.Code § 4133(a). In Malone Freight Lines, Inc. v. Johnson Motor Lines, Inc., 1 Storey 504, 148 A.2d 770 (Del.Supreme Ct. 1959), however, the court considered whether a driver of a truck was contributorily negligent in proceeding from a private road across the southbound lanes of a four-lane highway. The truck had proceeded safely across the two southbound lanes and had come to rest in a grassy crossover area between the north and southbound lanes. No part of the truck was then in the southbound lanes. While resting in the crossover area for the purpose of making a left turn onto the northbound lanes, the truck was hit by a truck traveling south. The southbound truck had veered off the highway onto the grassy area separating the south and northbound lanes attempting to pass a truck identified in the record only as the “X” truck which was also traveling south. The defendants, the owner and driver of the southbound truck, argued that plaintiff failed to look to his left as he crossed the southbound lanes and failed to yield the right of way. The court observed, however, that the accident did not occur on the highway but on the crossover area. Plaintiff was not expected to anticipate the use by an oncoming vehicle of an island or grass plot dividing two portions of a highway. The Court continued:

If the accident had happened on the traveled portion of the highway a wholly different question would be presented. The cases cited by defendants involve accidents of that kind. A driver of a vehicle entering a public highway from a private road must yield the right of way to vehicles “approaching on such public highway”. 21 Del.C. § 4139(a). [now codified at 21 Del.C. § 4133(a)] As defendants correctly say, his duty is somewhat similar to the duties of a driver approaching a “stop” sign. Cf. Williams v. Chittick, Del. [1 Storey 122], 139 A.2d 375 [Del.Supreme Ct.1959]. But in this case there was testimony from which the trial court could reasonably find that the blocking of both southbound lanes by the “X” truck, barely moving across the highway, made it safe for Bray [the operator of plaintiff’s truck] to cross the southbound lanes.

Malone Freight Lines, Inc. v. Johnson Motor Lines, Inc., 148 A.2d, at 772, supra. We consider this statement to indicate that the Delaware Supreme Court would apply the same standard of care to conduct governed by § 4133 as to conduct governed by the Delaware stop sign statute, 21 Del.C. § 4164(c).

In DiSabatino v. Ellis, 184 A.2d 469 (Del.Supreme Ct.1962) the court distinguished between the standard of care required by the stop sign statute and that required by a City of Wilmington regulation. The stop sign statute “makes stopping mandatory and then commands the driver to ‘not enter into, upon or across, such highway or street until such movement can be made in safety.’ * * * The regulation, on the other hand, obliges the driver to stop and then yield to other vehicles ‘within the intersection or approaching so closely * * * as to constitute an immediate hazard’; but having yielded to those whose proximity makes them ‘an immediate hazard’, the driver may then proceed under a right to have others yield to him. * * * [T]he statute imposes a higher duty upon the driver controlled by the stop sign than does the regulation; under the latter he must yield only to those close enough to be an ‘immediate hazard’, while under the statute he may not go until he can do so ‘in safety’ ”. DiSabatino v. Ellis, 184 A.2d at 471-472, supra.

Rumble v. Lingo, 1 Storey 417, 147 A. 2d 511 (Del.Superior Ct.1958), cited approvingly by the DiSabatino court, formulated the following standard of care governing a person’s conduct after stopping for a stop sign:

[A]n operator of a motor vehicle in this State who in obedience to a stop sign has stopped at an intersection prior to traversing the same against a traffic flow is specifically charged under the provisions of Section 4143(b) [now codified at 21 Del.C. § 4146(c)] aforesaid to refrain from negotiating the intersection until he can do so with safety, and this embraces placing the burden on said operator to maintain a continual vigilance and such control over his vehicle that he may avoid immediate hazards of approaching traffic while crossing the favored highway. The fact that a plaintiff operator does enter an intersection and is involved in a collision within the danger area thereof with a motor vehicle travelling in the favored traffic pattern raises a conclusive presumption of contributory negligence on his part except (1) where the evidence discloses the occurrence of an unforeseeable circumstance which is beyond the control of the operator, or (2) where the plaintiff has pleaded the last clear chance doctrine and the evidence is sufficient to admit the same.

Rumble v. Lingo, 147 A.2d at 513, supra. In Rich v. Dean, 261 A.2d 522 (Del.Supreme Ct.1969) the court amplified the conclusive presumption language of Rumble in holding that a violation of the stop sign statute constitutes negligence per se. See also, Stearrett v. Syva, 285 A.2d 816 (Del.Superior Ct. 1971).

We find these Delaware court cases conclusive in determining the standard of care the Delaware Supreme Court would apply to the conduct of a person regulated by the private road statute. Cf. Neiderman v. Smith, 199 A.2d 324 (Del.Superior Ct.1964) (court applied Rumble analysis to Delaware statute governing duty of driver of parked vehicle entering from curb into the flow of traffic).

A review of the lower court’s findings of fact in this case convinces us that an erroneous standard of care was applied to defendant’s conduct in proceeding from the private road of the Townsend plant. Of course, the mere use by the lower court of the term “immediate hazard” is not persuasive of the standard applied. In applying the evidenee before it, however, the court concluded that the time estimate of eight seconds by plaintiff’s expert and ten seconds by Harrington for the appellee’s truck to proceed from the edge of Route 24 to the point in the highway at which the impact occurred was “ample to have allowed the decedent to adjust his speed or alter his course to avoid a collision had he been traveling at a reasonable speed.” This conclusion assumes that Harrington would not be negligent so long as he could travel across Route 24 leaving enough distance between his truck and any approaching vehicles so that the approaching vehicle could slow down or stop in time to avoid a collision. DiSabatino as applied to § 4133 requires, however, that Harrington leave enough distance between his vehicle and any approaching traffic so that the approaching traffic is not in any way impeded. The rule is subject to the exceptions noted by Judge Terry in Rumble. The district court on remand should reassess the evidence in the record in light of the standard of care we find to be controlling.

Appellee argues that we should affirm the district court based on the evidence in the record of the plaintiff’s contributory negligence. Appellee in the court below offered evidence that appellant’s decedent was speeding and that he was driving while under the influence of alcohol. The district court made no findings of fact or conclusions of law in respect to the evidence of contributory negligence. The court’s findings of fact make no reference to the evidence of intoxication and only passing references to the evidence of speeding. At one point the district court states that all witnesses, except a discredited witness, testified that the decedent had been traveling at least 45 miles an hour at the time of the accident. While a traffic sign posted some distance west of the Townsend plant recommended a speed of 40 miles an hour, the regulation speed limit was 50 miles an hour. In addition, there is no clear indication in the district court’s opinion whether decedent’s conduct, if contributorily negligent, was a proximate cause of the accident. Fed.R.Civ. P. 52(a) requires a specific finding of fact by the district court. No such finding has been made in regard to the evidence of plaintiff’s contributory negligence.

Furthermore, the record does not establish as a matter of law the existence of contributory negligence. The witnesses at the trial offered conflicting estimates of decedent’s speed. Some of these witnesses testified as experts and based their estimates on the length of skid marks left by decedent’s car, the damage to the vehicles involved and other factors. Other witnesses were in the area of the Townsend plant at the time of the accident and based their opinion on estimates of the speed of decedent’s car a few moments before the accident. No witness, however, actually saw the accident occur. Likewise, the evidence concerning intoxication was not undisputed. The quantity of alcohol consumed, the time when the alcohol was consumed, whether decedent had consumed food before having alcohol are all factors which the trial court must consider in the first instance. The question of contributory negligence will depend upon the probative value the trial court gives these factors. It is not our province to make such determinations.

Since we are remanding this case to the district court and there is a possibility of a new trial, we will consider Appellant’s challenge to the court’s allowance of testimony by an expert for Appellee. The state trooper who had investigated the accident was permitted to testify as an expert witness for Appellee. The trooper opined that the decedent was traveling at a speed of 75 miles an hour just prior to application of the car brakes. The opinion of decedent’s speed was based on the length of the skid marks left by decedent’s car, damage done to the vehicles involved, distance traveled by decedent’s car after impact and the statement of witnesses. It was established by Appellee that the trooper had been on the police force at the time of the accident for three and one-half years during which time he was assigned to the Traffic Division and had investigated four or five accidents a week. In addition, the trooper had 60 hours of advance accident training at the Delaware State Police Training Academy and had been instructed about the proper manner of examining damage to vehicles, location of damage to vehicles, determining points of impact and learning about skid marks.

Appellant does not question that the subject matter about which the trooper testified is an area susceptible to testimony by an expert — the area testified to is beyond the ken of the average layman. See 7 Wigmore, Evidence §§ 1923, 1925 (3rd ed. 1940); McCormick, Evidence § 13 (2d ed. 1972). Nor does Appellant challenge as hearsay the table relied upon by the trooper for his estimates of speed as correlated to the length of skid marks and the co-efficient of friction of the roadway upon which the accident occurred. Compare Jamison v. Kline, 454 F.2d 1256 (3 Cir. 1972). Rather, the question before us arises from Appellant’s challenge to the qualifications of the trooper to testify in regard to decedent’s speed at the time of braking.

On cross-examination Appellant demonstrated that the trooper could not give estimates of speed without the use of a table correlating speed with the length of skid marks and the co-efficient of friction of the roadway. Nor was the trooper familiar with the concept of the co-efficient of friction and its relevance to determining speed from skid marks. In addition, the trooper could not estimate the speed of a ear leaving 96 feet of skid marks when there had been no impact with another object, did not know whether the table took into consideration four wheels skidding equally .or only one wheel skidding and stated that he took into consideration in his estimate only the length of the longest skid mark.

The generally accepted rule which is followed by Delaware is that the qualifications of an expert witness shall be determined by the trial judge. Cf. Robelen Piano Company v. DiFonzo, 3 Storey 346, 169 A.2d 240 (Del.Supreme Ct.1961); South Atlantic S. S. Co. of Delaware v. Munkacsy, 7 W.W. Harr. 580, 187 A. 600 (Del.Supreme Ct. 1936). Such rule has been articulated by this court on a number of occasions. See Hickey v. United States, 208 F.2d 269, 278 (3 Cir. 1953), cert. denied, 347 U.S. 919, 74 S.Ct. 519, 98 L.Ed. 1074 (1954); Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 (3 Cir. 1951).

We cannot say that the trial court was in error in allowing the trooper to testify with respect to decedent’s speed. The trooper’s opinion was not based simply on the length of the skid mark, but was also based on the damage to the vehicles involved, the location of the vehicles after impact and the areas of impact. The trooper testified from experience gained in this type of work over a three-year period and from the knowledge he gained at the Police Academy. Although Appellant’s cross-examination demonstrated the trooper’s weaknesses as an expert, these matters properly affect the weight the trial court should give this testimony. There has been no showing by Appellant of a complete lack of probative value which would constitute manifest abuse of discretion in allowing the trooper’s testimony in evidence.

The judgment of the district court will be vacated and this case will be remanded with instructions to proceed in accordance with our opinion.

      . Jurisdiction in the district court was based on diversity of citizenship. 28 U.S.C. § 1332(a) (U (1970).

      . The district court found that the Wothers’ truck was pulling off onto the shoulder of Route 24 as decedent’s car made a passing maneuver around the Wothers’ truck. The Wothers’ truck joined a line of trucks waiting on the south side of Route 24 to enter the Townsend plant. Townsend was in its busy season with trucks entering and leaving the plant frequently. Wise was an employee of Townsend and was familiar with the amount of traffic generated during this season.

      . On direct examination Norwood testified that she thought the vehicle behind her was a police car and therefore she decreased her speed. On cross-examination, however, she stated that she wasn’t sure whether the vehicle behind her was a car or a truck.

      . Both the front and rear tandem wheels are towards the rear of the trailer.

      . An expert for appellant testified that it would take a truck such as that driven by Harrington 6.8 to a maximum of 8 seconds to reach the point of impact testified to by Harrington.

      . 21 Del.C. § 4133(a).

      . The district court opinion also states that 60 miles an hour would be an estimate of decedent’s speed which would be “in the neighborhood of the several estimates of the speed of the Wise automobile that were made at trial.” The range of speed estimates made at the trial was from a low of 20 miles an hour to a high of 75 miles an hour. The 60 miles an hour estimate by the trial court was made in reference to the court’s calculation of the distance Wise’s vehicle was from the Appellee’s truck when Harrington began to pull out. The district court rejected Harrington’s testimony that the approaching vehicle along Route 24 was one-half mile away. If this estimate of distance were correct, Wise’s vehicle would have to have been traveling at a speed of 120 miles an hour to reach the Townsend plant in 15 seconds. Thus, the district court concluded that in order for Harrington’s estímate of 10 to 15 seconds of time in which it took the Wise vehicle to reach the Townsend plant to be correct, Harrington’s estimate of the distance the Wise car was from the Townsend plant must have been in error and should more realistically have been one-quarter of a mile. Given the wide divergence of evidence concerning the speed of the Wise vehicle, we consider an explicit finding by the trial court of the speed at which Wise’s vehicle was traveling absolutely necessary in order to make a proper evaluation of the evidence supporting such a finding.

      . 21 Del.G. § 4169(a)(2)(a). We make no determination concerning the effect of a suggested safe speed on the question of the negligence of a person found to have exceeded the suggested safe speed. See 21 Del.O. § 4169(b).

      . Whether in the light of this Opinion the district court grants a new trial or makes further findings based upon the present record is a determination for the district court.

      . The general admissibility of expert testimony on the question of speed estimates was expressly left open by the Delaware Supreme Court in Fioretti v. State, 245 A.2d 170 (Del.Supreme Ct.1968). See also, 29 A.L.R.3d 248.

      . We look to Delaware law to determine the admissibility of the trooper’s testimony as an expert witness since we are not aware of any federal statute or equity rule in favor of admissibility. Fed.R.Civ.P. 43(a) ; Galbraith v. Hartford Fire Insurance Co., 464 F.2d 225, 227 n. 1 (3 Cir. 1972) ; 5 Moore’s Federal Practice H 43.02 [4], at 1318 (2d ed. 1974).

      . Wigmore would not allow for appellate review at all of the question of the qualifications of an expert witness. 2 Wigmore, Evidence § 561 (3d ed. 1940).


source: Caselaw Access Project

author: CRAVEN, Circuit Judge:

license: Public Domain

text:
    GREENVILLE PUBLISHING COMPANY, INC., Appellant, v. The DAILY REFLECTOR, INCORPORATED, et al., Appellees.
    No. 73-2323.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1974.
    Decided May 1, 1974.

      R. Kennedy Bridwell, Raleigh, N. C. (Richard E. Thigpen, Jr., C. Wells Hall, Thigpen & Hines, P. A., Charlotte, N. C., on brief), for appellant.
    William C. Lassiter, Raleigh, N. C. (Lassiter & Walker, Raleigh, N. C., Louis W. Gaylord, Jr., Gaylord & Singleton, Greenville, N. C., on brief), for appellees.

      Jonathan T. Howe, Robert A. Garrett, Jenner & Block, Chicago, 111., on brief for amici curiae, National Assn, of Advertising Publishers and Publishers Distribution Institute.
    Before CRAVEN and WIDENER, Circuit Judges, and WARD, District Judge.

       Sitting by designation.

   CRAVEN, Circuit Judge:

The parties in this antitrust suit are competitors in the business of local advertising in Greenville, North Carolina. Both plaintiff and defendants publish shoppers guides, free weekly tabloids composed almost entirely of advertising. Defendants also publish the only daily newspaper in Greenville. Plaintiff charged defendants with setting their shopper’s advertising rates below cost in order to regain the monopoly they enjoyed before plaintiff entered the market. The district court entered summary judgment for defendants. On appeal the major issues are the sufficiency of the parties’ connection with interstate commerce and the legality of defendants’ pricing policies under the Sherman Act. We reverse and remand for trial.

Plaintiff, the Greenville Publishing Company, was organized in 1970 to publish a shoppers guide in Greenville. The organizers were apparently unaware that the publishers of the Greenville Daily Reflector had just finished modernizing and expanding their facilities with an eye toward publication of their own shoppers guide. Upon learning of the newcomer’s plans, the Reflector’s management decided to accelerate their schedule. Thus the first issue of the Reflector Shoppers Guide and the first issue of plaintiff’s Advocate appeared on the same day.

Plaintiff distributes The Advocate to substantially all the households in Pitt County. The Reflector Shoppers Guide has had a smaller circulation. Because management regards it as an adjunct to the Daily Reflector, they have distributed it only to households that do not subscribe to the newspaper. They have also offered a combination advertising rate: advertisements that appear in the Daily Reflector can be rerun in the Shoppers Guide at half price. The Shoppers Guide advertising rates are otherwise equal to rates charged by the Daily Reflector.

After operating the Reflector Shoppers Guide at a loss for the first year, defendants decided to reduce it from standard newspaper size to tabloid size. A reduction in costs and an increase in revenue followed, and as of February 1973 defendants claimed that their Shoppers Guide was turning a slight profit. The Advocate, whose larger revenue has been consistently absorbed by larger publishing costs, had sustained a $70,000 operating loss by the end of 1972. This lawsuit was the consequence.

The complaint alleges that defendants have deliberately set their advertising rates below cost and have made deceptive statements about their circulation figures in an attempt to eliminate The Advocate from competition. It charges that defendants have entered into a combination and a conspiracy, and have solicited contracts, in restraint of trade under section 1 of the Sherman Act, 15 U.S.C. § 1, and that they are guilty of monopolization and an attempt to monopolize in violation of section 2 of the Sherman Act, 15 U.S.C. § 2. The complaint alleges that these practices have caused plaintiff’s inability to publish the Advocate at a profit, asking for treble damages and injunctive relief.

After the parties had spent about a year in discovery, defendants asked for summary judgment, both on the merits and on the ground that the connection with interstate commerce was too tenuous to sustain a cause of action under the Sherman Act. The district court granted the motion and filed a memorandum opinion. Although the district judge was satisfied that the interstate commerce requirement was lacking, he proceeded to the merits, “construing interstate commerce principles liberally.” He concluded that there was no material factual issue on any of plaintiff’s allegations and that defendants had established they were entitled to judgment as a matter of law.

Interstate Commerce

The evidence on the interstate commerce issue is meager, perhaps because defendants did not raise the argument until just before the deadline'for discovery. Nonetheless, there is enough uncontroverted evidence to prohibit entry of summary judgment on this ground.

The complaint alleges that the Daily Reflector and both shoppers guides carry advertising for local affiliates of national sales organizations such as Ford Motor Company, A & P Food Stores, International Harvester, RCA, and others. Defendants’ answer effectively admits these allegations. The deposition of Lauren Spence Riddick, the Daily Reflector’s “National Advertising Manager,” includes testimony that the newspaper carries an unspecified volume of national advertising furnished by an agency in Atlanta. Mrs. Riddick also testified that the Daily Reflector had notified the Atlanta agency that advertising space was available in the Shoppers Guide, though none had yet been sold. The deposition of Donald Eugene Evans, an advertising salesman for the Daily Reflector, describes the practice of “cooperative advertising.” Mr. Evans testified that national manufacturers sometimes reimburse their local affiliates for advertising campaigns. The record contains no information about the volume or frequency of cooperative advertising carried by the Daily Reflector and no indication whether the Shoppers Guide has sold advertising on a similar basis.

An antitrust plaintiff may establish the necessary connection with interstate commerce in either of two ways: by demonstrating that the alleged anticompetitive conduct occurred in interstate commerce, or by showing that the conduct, though wholly intrastate, had a substantial effect on interstate commerce. Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967); Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341 (9th Cir. 1969). In Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L. Ed. 162 (1951), the Supreme Court applied the “in commerce” test to a small-town Ohio newspaper. After cataloging the many interstate contacts of both the newspaper and the competing radio station, the Supreme Court settled on a narrow ground of decision. It held:

The distribution within Lorain of the news and advertisements transmitted to Lorain in interstate commerce for the sole purpose of immediate and profitable reproduction and distribution to the reading public is an inseparable part of the flow of the interstate commerce involved.

Id. at 152. The uncontroverted facts on this record demonstrate that the advertising market in Greenville may likewise be a part of interstate commerce for the purpose of the Sherman Act. The only factor that remains to be established is the relative volume of interstate advertising in the Daily Reflector’s business or in the Greenville market. While a “substantial quantity” of national advertising is apparently enough to satisfy the “in commerce” test, Lorain Journal, supra at 146-147, isolated and infrequent sales of interstate advertising might not suffice to transform a small-town newspaper into an interstate business. See Rasmussen v. American Dairy Ass’n, 472 F.2d 517, 524 (9th Cir. 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3014, 37 L.Ed.2d 1003 (1973); United States v. Pennsylvania Refuse Removal Ass’n, 357 F.2d 806 (3d Cir.), cert. denied, 384 U.S. 961, 86 S.Ct. 1588, 16 L.Ed.2d 674 (1966); Page v. Work, 290 F.2d 323, 328, 332 (9th Cir.), cert. denied, 368 U. S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76 (1961). Without speculating on the amount of national advertising that would serve this purpose, we note that the issue must be resolved in the context of the Supreme Court’s declaration that the Sherman Act exercises all of Congress’s constitutional power over commerce. E. g., United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 553-559, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944).

Defendants argue, however, that Lorain Journal does not apply to this case because there is no evidence that The Advocate has published any interstate advertising. Fastening on the Supreme Court’s description in Lorain Journal of the radio station’s interstate business and its statement that the newspaper intended to destroy WEOL altogether, defendants urge us to hold that the only relevant inquiry is the victim’s involvement in interstate commerce. We think it clear that the Supreme Court has not endorsed this theory. The district court opinion in Lorain Journal is consistent with defendants’ narrow view of the Sherman Act. The district court focused exclusively on the radio station, holding that radio broadcasting in general was interstate commerce and therefore entitled to the protection of the Sherman Act. The Supreme Court affirmed on a different theory, adding extensive factual discussion of the newspaper’s interstate activities, holding that local dissemination of interstate advertising was part of interstate commerce, and characterizing the newspaper’s scheme as “an attempt to monopolize interstate commerce,” 342 U.S. at 149, as well as an attempt to destroy the radio station. The Supreme Court’s approach strongly implies that the Sherman Act protects the market as well as the victim. See also Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). Defendants’theory would undermine that protection. It would allow an interstate trader to destroy local competitors as long as it acted before they captured any of the interstate trade. To avoid such a result, we hold that the Sherman Act applies to the alleged monopolization of an interstate market even though the immediate victim may not be engaged in interstate commerce. Cf. Moore v. Mead’s Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954).

Monopolization and Attempt to Monopolize

Plaintiff’s basic contention is that defendants sold advertisements in the Shoppers Guide below cost to drive the Advocate out of Greenville. This line of reasoning adequately describes a violation of section 2 of the Sherman Act. Deliberate below-cost pricing is generally considered a severely anticompetitive practice. Ovitron Corp. v. General Motors Corp., 295 F.Supp. 373, 378 (S.D.N.Y.1969) (denying summary judgment motion), 364 F.Supp. 944 (1973) (dismissed on merits for failure to prove injury); Mt. Lebanon Motors, Inc. v. Chrysler Corp., 283 F.Supp. 453, 459-460 (W.D.Pa.1968), aff’d, 417 F.2d 622 (3d Cir. 1969); Bergjans Farm Dairy Co. v. Sanitary Milk Producers, 241 F.Supp. 476, 485 (E.D.Mo.1965), aff’d, 368 F.2d 679 (8th Cir. 1966). Although it may not be illegal in itself, it can furnish evidence of either the specific intent required to prove an illegal attempt to monopolize or the general intent which, accompanied by monopoly power, constitutes the offense of monopolization. Schine Chain Theatres, Inc. v. United States, 334 U.S. 100, 120-121, 68 S.Ct. 947, 92 L.Ed. 1245 (1948); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931).

Defendants have suggested that Greenville is a natural newspaper monopoly and that we should apply a more lenient standard under the Sherman Act. The record contains no evidence that the Greenville market cannot accommodate the Daily Reflector and both shoppers guides, but even if we proceeded on the assumption that one of the shoppers guides must fail, deliberate exclusionary conduct would still support a charge of attempted monopoly. The characteristics of a natural monopoly make it inappropriate to apply the usual rule that success in driving competitors from the market is evidence of illegal monopolization. See United States v. Griffith, 334 U.S. 100, 105-107, 68 S.Ct. 941, 92 L.Ed. 1236 (1948). This variance allows businesses to compete fairly for a natural monopoly market, with assurance that the winner will not be penalized. John Wright & Associates, Inc. v. Ullrich, 328 F.2d 474 (8th Cir. 1964); American Football League v. National Football League, 323 F.2d 124, 131 (4th Cir. 1963). But the antitrust laws need not tolerate exclusionary conduct whenever it appears that only one competitor can survive the preliminary bout. A charge of attempted monopolization may still rest on proof that one of the competitors has engaged in exclusionary practices with the intent of hastening the other’s demise. Union Leader Corp. v. Newspapers of New England, Inc., 284 F.2d 582 (1st Cir. 1960), cert. denied, 365 U.S. 833, 81 S.Ct. 747, 6 L.Ed.2d 201 (1961).

Although the district judge recognized that questions of intent in antitrust cases are ordinarily inappropriate for resolution on summary judgment, he nonetheless concluded that “publication of The Reflector Shoppers Guide was based on competitive business considerations and that any loss sustained was due to the beginning of a new enterprise.” Memorandum Opinion at 9. This conclusion is based on a listing of “uncontroverted facts” that includes the following:

(3) That the advertising rates for The Reflector Shoppers Guide were determined by the Defendants without knowledge of The Advocate’s rates and were set at approximately one-half the per-inch rate of The Daily Reflector as a sound pricing practice in accordance with other newspaper publishers who had initiated shoppers of their own.
(5) That the Defendants expected their shopper to be profitable, and once it was decided to switch to tabloid form a profit was seen .

Id. at 8-9. These factual conclusions overlook the major point of contention between plaintiff and defendants. Defendants’ affidavits assert that the Shoppers Guide became a profitable venture in 1972, demonstrating a total profit of $323.86 for the 55-week period ending February 28, 1973.® Plaintiff contends that defendants’ method of cost accounting does not give an accurate picture of the expense of producing the Shoppers Guide, and that defendants’ profit figures would be wiped out if the balance sheet reflected all publishing costs that are fairly attributable to the shopper. Defendants admit that their method of cost accounting does not charge the Shoppers Guide with any portion of the company’s fixed expenses or personnel costs. They claim, however, that their accounting methods give a fair picture of the shopper’s profitability because publishing the Shoppers Guide does not increase the fixed costs or personnel costs of the enterprise as a whole. They also suggest that the Shoppers Guide has boosted the newspaper’s revenue by attracting new subscribers and advertisers.

The record contains evidence supporting the positions of both parties. Each side has procured an accountant’s opinion in support of the cost accounting method it favors. Depositions of defendants’ employees furnish information about the amount of time each spends in producing the Shoppers Guide.' Their testimony supports defendants’ contention that getting out the shopper absorbs very little time in relation to the time spent publishing the daily newspaper, but it also supports plaintiff’s argument that defendants could readily ascertain the portion of personnel time that the shopper consumes. The fact that the resulting reallocation would be small does not deprive this evidence of significance; defendants’ low profit figures are vulnerable to even a slight increase in the costs allocated to the shopper.

The sum of this evidence presents an issue of disputed fact. It is not at all clear that defendants set the Shoppers Guide rates at a level that could reasonably be expected to generate a profit. Moreover, the ultimate question of defendants’ intent depends on the credibility of its officers, who were also named as defendants. Even though the defendants’ written protestations of good faith are convincing, the issue of intent should not have been resolved on summary judgment. See Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed. 2d 458 (1962); South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (4th Cir.), cert. denied, 385 U. S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966).

Defendants contend, nonetheless, that summary judgment was proper because they furnished affidavits describing their good intentions while plaintiff supplied nothing more than “conclusory allegations” of predatory motive. Because Rule 56(e) provides that the party opposing a summary judgment motion may not rest on allegations in the face of contrary facts, defendants insist that plaintiff has created no material factual dispute on the crucial intent issue. Plaintiff has no direct evidence of defendants’ intent, but the deficiency is hardly surprising. Antitrust plaintiffs seldom have access to admissions of guilt and are often forced to rely on inferences arising from conduct. Proof that the Shoppers Guide is not paying its own way would support an inference that defendants’ pricing policies were designed to drive the Advocate out of the market. Plaintiff has therefore produced enough evidence about the defendants’ conduct to raise a factual issue about their intent. This is enough to preclude summary judgment.

Finally, defendants contend that the summary judgment may be affirmed on a ground not relied on by the district court. They interpret the record to establish as a matter of law that defendants lack the market power necessary for either a monopoly or an attempt to monopolize. Plaintiff contends that the relevant market is printed advertising in and around Greenville. Defendants agree with the geographical bounds of the market, but would define the product market to include all forms of advertising, including radio and television. Using an estimate of the advertising volume that local television and radio stations sell to Pitt County merchants, defendants assert that the Daily Reflector sold only 23.34 percent of the total advertising dollar volume in 1970. These figures predate the inauguration of the shoppers guides and exclude incidental forms of advertising such as billboards, handbills and circulars, and the Yellow Pages. If, as plaintiff urges, the market is restricted to printed advertising, the Daily Reflector’s 1970 share may be as high as 84 percent. There is no evidence of the Daily Reflector’s market share since 1970 or of the market share of either shoppers guide.

This evidence falls far short of establishing that defendants are entitled to judgment as a matter of law. The record does not show whether television and radio advertising are priced to compete with newspaper advertising. There is no comparison of the functions that the different media serve. Cf. Kansas City Star Co. v. United States, 240 F.2d 643, 658-660 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957). Neither party has attempted to show whether merchants respond to price changes in one medium by switching to another. Defendants’ deposition testimony to the effect that radio and television compete with the Daily Reflector and the shoppers guides for the “advertising dollar” in Pitt County is not enough. The “reasonable interchangeability” that defines competition for the purpose of market definition is more specific than the common definition of competition. See United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. E. I. du Pont de Nemours & Co., 351 U. S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956).

Combination, Conspiracy, and Contracts

The district court’s summary judgment also disposed of plaintiff’s claims under section 1 of the Sherman Act. Construed liberally, the complaint alleges that David J. Whichard II, president, director, and stockholder of The Daily Reflector, Inc., was a party to a combination or conspiracy with the corporate defendant. The district court held that a corporation cannot be guilty of conspiring with its officers or agents, following the rule stated in Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953). We agree with the general rule but think an exception may be justified when the officer has an independent personal stake in achieving the corporation’s illegal objective. See America’s Best Cinema Corp. v. Fort Wayne Newspapers, Inc., 347 F.Supp. 328, 332 (N.D. Ind.1972). Whiehard’s deposition establishes that he is affiliated with the Ayden News-Leader, a weekly newspaper in Pitt County, that he receives $5.~ 00 for each page it prints, and that if its advertising revenues should reach a certain level he would receive a percentage. Because the Ayden News-Leader sells advertising to Greenville merchants, it is reasonable to infer that Whichard could benefit personally from the elimination of The Advocate. These facts are sufficient to sustain plaintiff’s allegations at this stage of the litigation. See Brett v. First Federal Savings & Loan Ass’n, 461 F.2d 1155 (5th Cir. 1972).

Plaintiff’s second theory under section 1 attempts to characterize the combination advertising contracts that defendants solicit from Pitt County merchants as contracts in restraint of trade. Because the combination rate offer is voluntary, we agree with the district court that it is not illegal per se as a tying arrangement. See Turner, The Validity of Tying Arrangements Under the Antitrust Laws, 72 Harv.L.Rev. 50, 67, 75 (1958); cf. FTC v. Sinclair Refining Co., 261 U.S. 463, 43 S.Ct. 450, 67 L.Ed. 746 (1923). A voluntary combination rate may still violate section 2 as an unreasonable restraint of trade if it is accompanied by a specific intent to restrain competition or if it has that effect. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 614-615, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). The legality of the combination rate contracts in this case depends on the same facts required to establish an attempt to monopolize — the alleged cost justification for the reduced rate and the defendants’ reasons for offering it. The disputed factual issues on plaintiff’s major theory are material to this one as well, and defendants were not entitled to summary judgment.

Finally, defendants urge us to affirm the summary judgment on the ground that plaintiff has shown no causal connection between defendants’ conduct and The Advocate’s losses. This argument is premature on motion for summary judgment. South Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414, 419-420 (4th Cir. 1966).

Reversed and remanded.

      . During most of the period in question, the rate per column-inch in the Daily Reflector was $1.60. Thus an advertiser could place a one-inch ad in either the Daily Reflector or the Shoppers Guide for $1.60, or he could run his ad in both for $2.40. The same rate structure applied to long-term advertising at contract discounts; the advertiser could contract for advertising in the Shoppers Guide for half the cost of the newspaper contract.

      . Plaintiff complains that the masthead of the Shoppers Guide shows the combined circulation of the Daily Reflector and the Shoppers Guide. Apparently there is no intentional misrepresentation as the masthead states that the total circulation of the Daily Reflector and the Shoppers Guide is 24,000; each publication has an independent circulation of about 12,000.

      . The parties differ sharply over the proper construction of the complaint. Plaintiff contends that it alleges both monopolization and an attempt to monopolize. Defendants insist that the phrase “attempted to maintain their dominant monopolistic position and destroy competition” alleges only an attempt. The district court treated plaintiff’s inartful language as an allegation of an attempt to monopolize, apparently without considering whether it also alleged monopolization. Under Fed.R.Civ.P. 8(f), and in the spirit of avoiding the pitfalls of common law pleading, we cannot perceive any harm in allowing plaintiff to proceed on both theories. Defendants have alleged no prejudice, and the issues of market definition and monopoly power have been developed in discovery.

      . The amended complaint contained the following allegation of jurisdiction:
      2. This Court has jurisdiction of this action because:
      a. The matter in controversy arises under an act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies (28 U. S.C.A. § 1337)»; and
      b. The matter in controversy arises under the Sherman Antitrust Act, Secs. 1 and 2 (15 U.S.C.A. §§ 1 and 2), and the Clayton Act, Secs. 4 and 16 (15 U.S.C.A. §§ 15 and 26).
      The defendants’ answer gave the following response to paragraph 2 of the complaint:
      2. The defendants do not contest the jurisdiction of the Court.
      Then, after making admissions and denials to specific allegations in the complaint, the answer stated:
      AS A FURTHER ANSWER AND DEFENSE, THE DEFENDANTS ALLEGE;
      1. The Amended Complaint fails to state a claim against the defendants, or any one or more of them, upon which relief can be granted.
      On March 2, 1973, plaintiff served a set of interrogatories on defendants asking for particularization of the contention that plaintiff had failed to state a cause of action. Defendants declined to answer, asserting that they were not required to answer legal questions. Plaintiff’s brief in this court states that defendants first raised the interstate commerce issue on April 30, 1973, in their brief in support of summary judgment. The deadline for discovery was May 2.

      . In United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955), the Supreme Court held that an enterprise was in interstate commerce by virtue of receiving 25% of its revenue from interstate operations. In Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 602 n. 11, 73 S.Ct. 872, 97 L.Ed. 1277 (1953), the Court followed Lorain Journal without mentioning the amount of interstate advertising involved. Of course, it may have been willing to assume that the major daily newspapers in New Orleans carried a “substantial” volume of national advertising.

      . The issue we outline is not the same as the inquiry required by the “effects” test of interstate commerce under the Sherman Act. If the newspaper is found to be operating in interstate commerce by virtue of carrying an adequate volume of interstate advertising, the Sherman Act will apply without a showing of the quantitative effect on the interstate market. See United States v. Shubert, 348 U.S. 222, 226-227 & n. 8, 75 S.Ct. 277, 99 L.Ed. 279 (1955); Las Vegas Merchant Plumbers Ass’n v. United States, 210 F.2d 732, 739-740 n. 3 (9th Cir.), cert. denied, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954); of. Rasmussen v. American Dairy Ass’n, 472 F.2d 517, 526-528 (9th Cir. 1972).

        . United States v. Lorain Journal Co., 92 F. Supp. 794 (N.D.Ohio 1950).

      . Defendants have also argued that the Sherman Act does not apply in this case because the newspaper’s interstate contacts are only incidental to the alleged anticompetitive conduct. This may be true of plaintiff’s allegations that the newspaper purchases pajier and ink from out of state and prints substantial quantities of national and international news, but the alleged monopolization is directed specifically at the Greenville advertising market. If plaintiff proves that this market is “in commerce” and that defendants’ acts constituted monopolization or a restraint of trade, prohibition of defendants’ conduct would be justifiable as a means of protecting interstate commerce in advertising. See Rasmussen v. American Dairy Ass’n, 472 F.2d 517, 526-527 (9th Cir. 1972). This case is therefore unlike Savon Gas Stations No. Six, Inc. v. Shell Oil Co., 309 F.2d 306 (4th Cir. 1962), and Lawson v. Woodmere, Inc., 217 F.2d 148 (4th Cir. (1954), in which the alleged restraints were unrelated to the interstate aspects of the businesses involved.

      . The same affidavit states that the Shoppers Guide showed a total profit of $1,476.-84 for the last 18 weeks of this period, projecting from this figure a future annual profit of $4,266.60. As plaintiff points out, however, the 18-week period defendants selected (Nov. 1, 1972, to Feb. 28, 1973) included the lucrative Christmas advertising season. The higher profit figure is therefore an unreliable index for projecting year-round revenues.

      . Defendants’ affidavits and answers to plaintiff’s interrogatories show that their figures include the cost of postage and carrier delivery, sales commissions on shopper advertisements, and the cost of newsprint, ink, electricity, and “materials.” The figures do not include any portion of personnel costs or “fixed costs of building, equipment and other facilities.”

      . Defendants’ insistence that the Shoppers Guide merely represents an additional use of equipment and facilities that would otherwise go unused seems at least slightly inconsistent with another of defendants’ affidavits, which states that long-range planning for a shoppers guide was a factor in the building and expansion program undertaken by the Daily Reflector in 1969, and that additional equipment was ordered for that purpose.

      . To quote Mr. Justice Glark’s now-classic language from Poller v. CBS, “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” 368 U. S. at 473.

      . Fed.R.Civ.P. 56(e). The rule provides only that failure to furnish specific facts in response to a supported motion for summary judgment may result in granting the motion if summary judgment is appropriate.

      . Because the district judge ruled only on the allegation of an attempt to monopolize and concluded there was no specific intent to exclude competition, he found it unnecessary to define the relevant market or determine defendants’ share of it.

      . This calculation is based on defendants’ figures for the Daily Reflector and the weekly newspapers in Pitt County. It is unclear whether these figures include advertising sold by the Raleigh News and Observer, which publishes a weekly page of “Eastern Carolina” advertising. Defendants’ deposition testimony suggests that the Raleigh paper’s only sales to Pitt County merchants appear on this weekly page.

      . The Supreme Court’s generous treatment of conspiracy allegations in Albrecht v. The Herald Co., 390 U.S. 145, 149-150, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968), and Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L. Ed.2d 458 (1962), offer general support for this exception. Bee also ABA Section of Antitrust Law, Antitrust Developments 1955-1968, at 19 n. 84 (1968).


author: PER CURIAM:

text:
    Sebastain DANTAGNAN et al., Plaintiffs-Appellants, v. I. L. A. LOCAL 1418, AFL-CIO, Defendant-Appellee.
    No. 73-3662
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    Rehearing Denied Aug. 8, 1974.

      Lawrence B. Jones, Benjamin ' E. Smith, New Orleans, La., for plaintiff s-appellants.
    Alvin J. Liska, New Orleans, La., for defendant-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In February, 1969, defendant-appellee Local 1418 instituted a dues checkoff of three cents per hour, retroactive to October 1, 1968. On May 12, 1972, plaintiff-appellant Dantagnan and two others, members of Local 1418, filed suit in the United States District Court for the Eastern District of Louisiana, alleging that appellee had failed to comply with the requirements of Section 101(a)(3) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411(a)(3) (1970). On behalf of themselves individually and of a class composed of current and former members of the local, appellants sought to recover the allegedly illegally collected dues. Appellee answered, alleging inter alia that the action was barred by limitations. After receiving briefs from the parties and hearing oral argument on the question, the district court granted appellee’s motion to dismiss for limitations. We reverse and remand the case for further proceedings.

Since the LMRDA does not contain a statute of limitations, federal courts entertaining suits brought pursuant to the Act must look to the law of the state in which the litigation arose, here Louisiana. Sewell v. International Association of Machinists, 5 Cir. 1971, 445 F.2d 545, 549, cert. denied, 1972, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674. “The applicable period of limitation is that which [Louisiana] would have enforced had an action seeking similar relief been brought in the [Louisiana] state courts.” Id. Reasoning that appellants’ action essentially sounded ex delicto, or in tort, the district court concluded that Louisiana courts would apply the one year statute of limitations. As they did below, appellants insist that their claim is basically ex contractu, sounding in quasi contract, and therefore covered by the ten year period of prescription. We find appellants’ argument the more persuasive.

The court below relied in part on Sew-ell v. International Association of Machinists, supra, in which this Court held that Alabama’s one year statute of limitations for tort actions barred a claim based on alleged violations of the LMRDA. We think this reliance was misplaced for two reasons. First, the holding in Sewell rested on the conclusion that as a matter of state law Alabama courts would have classified Sew-ell’s particular cause of action as ex delicto or tortious, not as the court below and the appellee seem to believe, ■ on a conclusion that as a matter of federal law all actions based on violations of LMRDA are essentially tortious in nature. Second, Sewell involved a different section of LMRDA — and a different type of claim — from the case sub judice. Plaintiff Sewell complained that he had been discharged from his union office for exercising his First Amendment rights, a violation of sections 101(a)(1) and (2), 29 U.S.C. § 411(a)(1), (2) (1970).

Though the facts of Sewell are distinguishable, what we said there regarding the method of determining the applicable statute of limitations in LMRDA cases does channel our analysis in the case at bar. Thus we must examine the plaintiff’s complaint and the undisputed facts in the light of the guidelines established by the forum state’s own courts for testing the basic nature of a cause of action. 445 F.2d at 549-550.

Under the law of Louisiana it is well-settled that one set of facts may result in two causes of action, one delictual and the other quasi contractual. Iberville Land Co. v. Amerada Petroleum Corp., 5 Cir. 1944, 141 F.2d 384. If a specific thing wrongfully acquired “exists and can be restored, the plaintiff either may sue for damages for the wrongful act by which he has been deprived of the thing, or he may sue for the restoration of the thing. One is an action in tort, or for a quasi offense; the other is an action in quasi contract.” Id. at 385-386. The essential distinction arises from the differences in the relief requested:

The rationale of the codal articles and jurisprudence governing the right to an action in quasi contract (which includes the right to demand the return of the thing or the value thereof) is prevention of the unjust enrichment which would otherwise accrue in favor of a transgressor by virtue of his receipt and permanent retention of a thing of value belonging to the aggrieved party. Obviously one should not be permitted to retain and keep an object belonging to another and enjoy the continuous use and benefits to the detriment and deprivation of the lawful owner. Under such circumstances where the object received and retained is capable of restoration equity demands its return or, in the event of its loss or destruction, restitution of the value thereof. On the other hand, however, under the general tort law where the action of a tortfeasor merely causes damage to the property of another, (real or personal), unaccompanied by an appropriation and retention thereof for the exclusive use, benefit and enjoyment of the tortfeasor, the remedy of the injured party is limited and restricted to recovery of damages occasioned by the tortious act.

Schouest v. Texas Crude Oil Co., 141 So.2d 155, 160 (La.App.1962).

As we recognized in Iberville Land Co., supra, 141 F.2d at 386, under Louisiana law “[wjhether [the] suit is in tort or in quasi contract may only be answered by an analysis of the averments of the bill of complaint descriptive of the cause of action and the character of the relief prayed.” The complaint in the case at bar is abbreviated, but sufficient to demonstrate to our satisfaction that these appellants chose to pursue an action in quasi contract. Appellants allege that the union local has wrongfully received and retained a sum of money rightfully belonging to appellants and those they represent; they have pleaded the existence of a quasi contractual obligation on the part of the appellee. Moreover, although appellants also seek attorneys’ fees and injunctive and declaratory relief, the heart of their requested relief is the recovery of the amount of money allegedly illegally collected and retained. If appellee’s action in collecting the increased dues did violate the LMRDA, appellee would be unjustly enriched if allowed to retain the monies. Thus appellee’s actions, if violative of the statute, may have been tortious, but they also created a quasi contractual obligation giving appellants the right to demand restitution.

The court below having erroneously dismissed the suit for prescription, the case is reversed and remanded for further proceedings.

Reversed and remanded.

      . The Act provides that
      the rates of dues and initiation fees payable by members of any labor organization in effect on September 14, 1959 shall not be increased, and no general or special assessment shall be levied upon such members, except—
      (A) in the case of a local labor organization, (i) by majority vote by secret ballot of the members in good standing voting at a general or special membership meeting, after reasonable notice of the intention to vote upon such question, or (ii) by majority vote of the members in good standing voting in a membership referendum conducted by secret ballot ....

      . “The following actions are also prescribed .by one year: . . . [T]hat ... resulting from offenses or quasi offenses.” La. Civil Code art. 3536.

      . “In general, all personal actions, except those before enumerated, are prescribed by ten years.” La.Civil Code art. 3544.

      . Kramer v. Freeman, 198 La. 244, 3 So.2d 609 (1941) ; Schouest v. Texas Crude Oil Co., 141 So.2d 155 (La.App.1962).
      The Louisiana law relating to rights and obligations founded on the theory of quasi contract appears, inter alia, in La.Civil Code articles 2292, 2294, and 2301. The latter provides: “He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

      . We see nothing significant in the fact that the property retained by appellee is money rather than some other type of property, real or personal. In United Gas Pipe Line Co. v. Socony Mobil Oil Co., W.D.La.1963, 220 F.Supp. 685, a complaint for recovery of a specific sum of money allegedly collected in violation of the Natural Gas Act and orders of the Federal Power Commission was held to allege a quasi contractual obligation, and thus to come within Louisiana’s ten year statute of prescription.

      . We regard as basically irrelevant the fact that section five of appellants’ complaint is subtitled “damages.” It is clear beyond any reasonable dispute that the relief actually requested in the prayer of the complaint is restitution of the money collected, not damages for the wrongful act of collection.

      . The district court buttressed its conclusion that actions for violations of LMRDA are essentially tortious in nature with a line of cases holding that antitrust actions in Louisiana are essentially ex delicto and thus fall within the one year period of prescription. We think the analogy is wide of the mark. Violations of antitrust statutes generally involve breach of a duty owed to the public in general, and suits brought pursuant to those statutes usually seek recovery of unliquidated damages. Here, by contrast, ajipellants assert the breach of a duty owed to a particular set of individuals, and they seek restoration or restitution of the specific thing wrongfully acquired, a sum of money. Accord, United Gas Pipe Line Co. v. Socony Mobil Oil Co., W.D.La.1963, 220 F.Supp. 685, 687.