# Appendix — Hill v. Moe > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0300%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1962 - **Citation:** 370 U.S. 916 ## Text IEA h Dy Office Supreme Court, U.S, ‘ FILED AP2.04 19% APPENDIX. a a ae Se, ws = IN. THE SUPREME COURT OF he UNITED STATES. OCTOBER TERM, 1961, a 908 “RISS & COMPANY, ay Petitioner, v. THE ASSOCIATION OF WESTERN RAILWAYS, TRAFFIC “EXECUTIVE ASSOCIATION—-EASTERN RAILROADS, EASTERN RAILROAD PRESIDENTS CONFERENCE, * CARL BYOIR & ASSOCIATES, INC., and THE PENNSYLVANIA RAILROAD, Respondents. APPENDIX TO PETITION FOR WRIT OF CERTI. ORARI TO THE UNITED. STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. / ° ‘ “ail Sr. Louis Law Painzinxe Co, Inc. 415 N. Eighth Street. CEntral 1-4477. INDEX TO APPENDIX. —_ > . “% ig are’ ” Order of the Court of Appeals on _Lelition for Writ | of Certiorart, em@e P ge es te ee ie Opinion ofthe Trial Court on Remand, January 16, 8 egal eee en ete eee ee Sn ee . ta Order of the Court of Ropiaile of, tanec for Writ : of Certiorani, Ma’ 19, 1950.0... Pe ee ar ay ae shar Opinion of the Trial Court on Motions for Directed Verdict, June 6, 160 00.0... Se Tee ee Admissions by Riss, Read to the Jury During Trial... 49a Excerpt From Closing Arguinent to Jury by One oft PCIE SNE os di ca eo ns ve cues aoa Instructions to the Bury, .......... 0.0.0 ee ede weet Oda Explanation of Verdict Form by Triai Judge to Jury 105a ~The Jury’s Hypothetical Question... 0.2... POP CC Ne 10Sa The Jury's Reqaest to Be Discharged .o.00..0. 0... Wha The Jury's Kirst, Attempted Verdict o..... 0.0... 11a Supplemental Listructious by the Trial Court ...... 129 The Jury's ecw. PEA IIS a oc seas Voss Completed Form of Verdiet ..... WAG Veet . Wa Distriet Court Judgment Mntered on Verdict et .. 13%e Distriet Court Judgment Awarding Attorney’s Fees 14a - Opinion Below... ee Prk ea la “°° 9 «6 x “ond [6, k 4] OH; | Uristed States, Court of Appeals For the Distriet of Columbia Cireait: April Term, 158. Atlantic Coast Line’ Railroad Cer pany, wf. al... : | Petitioners, gels Z No. 14,562. Riss & Company, Tre.. rs ' ‘ Respondent Before: Bazelon, Bastian and Burger, Cireyit Judges. ORDER. . This case ¢ame on for consideration on the order of the District Court entered May 26, 195s, denying petition- ers’ motion te suspend proceedings pending a determina- tien by the Interstate Cofimerce Comission of whether prior Conrmiission- Approved agreviments: are applicable to the reduced rate agreéments referred to in Paragraph 18 of the Complaint as sappleriented, whether such rates are — otherwise lawful and whether respondent» have abused the processés of the Commission, on petitiovers’ motion to file a petition for writ of certiorari, petitioners’ petition for writ of certiorari, petitioners’ brief in. support thereof, re- spondent’s brief in opposition thereto, the transeript of proceedings in the Distriet Court antl on arguments of counsel, , Whereas the order of the District Court Iss not a tinal order appealable under 2s US. ©. 0 1291, nor an inter- locutory oder appeakable under 2s ia i » 1292, and it appears that petitioners sufficiently allege a conflict of , ae ‘jurisdiction between the Distriet Court and ai adminis- trative agency, and stfliciently show that postponed ap- pellate review may work hards ship on petitioners, United States Alkali Export Ass'n v. United States, 325 U.S. 16, 907, POR (1945), and = * Whereas it appears, from thie District Court's mem- orandum opinion in-suppert of the order, that the District Court relied upon the decision of this court. in Atchison, Topeka & S. F. Ry. Co. v. Aircoach Transport Assn., .. U.S. App. D.C. 2... 298 BF. 2a Sic (1958). and did not -consider in ifs Opinion the effect of Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481. 499 (decided May 19, 1998), and so: ’ Whereas it is the view of this court that the Isbrandtsen opinion modifies the holding of the Aircoach case by re- quiring that the issne of 4iie intent and effect of an agree-- ment approved by the Commission must, in a case where such issue is the solecor dominant issue in the case, first he referred to the Conmmutssion. prior to a court determina- tien of whether such agreenient Violates the anti-trust laws, and Whereas it is the view of this court that the Isbrandtsen decision does not necessarily require referral to the Com- nission of issues such as those sought to he referred to the Commission be petitioners’ motion where the agree- ment is only one ef a considerable number of overt acts alleged and where the poliey favoring referral is clearly -ontweighed by other factors snehoas the probability. of undue delay and the overriding importance of early con- sideration of the other overt ets allowed, ane . Whereas the Uistriet Court, having considered this ease. in “all of its aspects, As ih) gb chetter position to ACT Tinine whether, Or balance, Hspenston uf proceedings is Ware. ratited, , It is hereby, ordered that petitioners’ motion for leave to file a petition for writ of certiorari and petitioners’ pe. lition for writ of certiorari are granted, and the case is remanded to the District Court with directions to vacate its order of May 26, 1958, and to reconsider petitioners’ motion to suspend Proceedings in tight of this order, > Per Curiam, Dated: Angustss, 105s. : ORDER. This case came on tor consideration on petitioner's motion for claritieation of an order of this court in this cause dated Auaust-S, 1958, respondent's reply thereto, the motion of Aireoach Transport Association, Ine.. et al., for leave to file a memorandum of law as amieus curiae and to participate in oral argument, the lodged memorandum of Aireoach Transport: Association, Ine. et al, and. re- spondent’s reply to the motion of Aircoach Transport Association, Ine., et al. Tt appears theretrom that the order of August’ 8, 195s, | did not fully set forth the view of this court concerning the effect of Federal Maritime Board v. Isbrandtsen Co., 6 TLS. 487, 499 (1958), upon the decision of this court. in Atchison, Topeka & S. F. Ry. Co. v. Aircoach Trans- ' port Assn, ... U.S. App. D.C. 2... 253 F. 2d 877 (1958). The intent, however, of the order of August 8 was to assert our view that the Isbrandtsen opinion. modifies the holding of the Aircoach case by reqniring that the issue of the intent and effect of arate rednetion claimed to have been -taken pursuant to procedures set forth in agreements ap- proved by the Commission under See. Sa of the Interstate Commerce Aet. must. inaense where such issne isthe sole or dominant issne, first he referred to the Commission prior to a conrt determination of whether snceh rate reduction * violates the anti-trost laws. The ‘tissne' referred to in 4 -- the order was not intended toemear the issue of the ap- plicability of See. da agreements to the rate reductions. It is therefore Ordered that petitioner’s motion for clari- fication of the order of August S, 1958, is granted to the extent indicated in the foregoing paragraph. It ix Further Ordered that the motion of Aircoach Trans- port Association, Inc., et alc for leave to file a memorandum of law as amiens curiae is granted, ut its Hotion for oral argument is eheriteek. | : _ Per Curiam, Dated: Decenber 15,4858, . jak Supp. -bod4. | tnited States Distriet Court for the Distriet Hiss & Compuatiy, Ine., Phaaintit?, . | Civil-Aetion. 3 : Mon No 4056 44. Association of American Ratlroad- etal, Defendants. ener nie eee & ~ ‘OPINION. Qn Autnst 8, 105s, the United States Court of Appreai- for the District of Columbia remanded this cnse te the District Court with directions to vacate its order of May 2H, TSS, and to reconsider petitioners” motion to suspend proceedings in the light of said order.’ In the early part of 1958 petitioners moved to. stspened all proc. ding= in this antitrust litigation excep? discovery not connected with this motion, and urged the Court te refer fo the Tne restate Commerce Commission one of the hal issues set forth in the complaint regarding rate-making, pursnant to agreements on procedure tiled With the Com- mission, se that the Court might obtain ruling on whether these joint rate reductions were immunized: from the opera- lien of the antitrust laws. Extensive briefs were tif and the Court heard oral arguments. After delivering an oral opinion trom the bench, the Court denied the motion in an order entered May 26, 18. Relying strongly on a recent Supreme Court decision not mentioned hy the Court in its’ oral opinion, most of the. railroad defendants then peti- Heted fora writ of certiorari from the Conrt oy Appeals ” zine asked that court te reverse this Court's order and te. direct this Court to suspend proevedings and refer the ahove issue to the Commission.” The Court of Appeals |” eranted the writ, but declined to rule on the merits. In- stead, Horemanded the case to this Court with directions to. vacate the order of May 26-and to reconsider petitioners? motion in the fight of its order and of the Supreme Court's fecent holding in Federal Maritime Board v. Isbrandtsen Co. et ab. 356 1S. 481 (1958). Petitioners then requested the Court: of Appeals te clarify certain language in its order of August S158, The Court granted this request in an order dated Decem- her 16, 105s, Before disenssing the legal issues raised by this motion, * . ifois necessary to summarize the background of this com y . . . * ile ens sa threat all Iss tyes may be View onl 1m) their Hroper content. In 154 Riss & Company. Ine. a common « carrier by motor vehicle in interstate commerce, filed this civil anti- trust suit, seeking an dijunetion and SOO000,000 in treble damages. It alleged that beginning in or about 1950 de- fendants, most of whom are railroad companies, had agreed and conspired in unreasonable restraint of trade and com meres to injure or destroy plaintiff's business amd to ae. —ta—., quire a monopoly of land transportation of property in the United States, and had thus violated Sections Land 2 of the Sherman Act (15 U.S. ©. $5 1, 2): Plaintiff alleges it has been a common carrier of prop- erty by motor vehicle since 1927 and operates as authorized | by the Interstate Commerce Commission * throughout Awenty-two states plus the District of Columbia. it ses over SOO truck units and employs over two thousand pier- sons. Riss also has alleged that during the yeary from 1950 to 1953, inclusive, i was one of the five larwest inter. staie motor carriers in the United States im terms of gross revenues and i ix, and has heen for several years, one of the largest motor earriers of wilitary supplies, including am- mfnition and explosives, for the Arined Forces. About fifty-eight first-class railroad companies, several joint raii- road organizations and trade associations and one pub lie relations firm are defendants in this action. In order to effectuate the object of the allegea con- ~ xpiracy. plaintift charges that defendants employed various means, some-of which are cited as examples in the com- plagnt. Defendants are occused of having carried on a ‘program of soliciting, directly as-well as indirectly through front’ organizations, the elected and appointed officials — of various states to take steps leading to the revocation and cancellation of the interstate operating authority held by plaintiff. In 1952 it ix alleged that some of the defend- ants employed a public relations expert to persuade the Publie Utilities Commission of Ohio to file proceedings before the Inftrstate Commerce Commission looking toward the cancellaffon of plaintiff’ operating authority. By similar methods of solicitation, according to the eom- plaint, officials of states, cities and towns through which plaintiff operates, were urged by defendants to enact stat- utes, ordinances and regulations designed to unduly hamper the operations of the plaintiff and to render them ec momi- . a. cally unfeasible, such as by imposing unreasonably low Weight limits on truck shipments or by banning the use hy Plaintifl's vehicles of certain inportant highway rottes, Defendants are alse alleged to have urged, irvetly amed indirectiy through ‘front’ organizations, that «tate offi. cials carry ont a campaien of nnusnally The defendants contend Shat a new issue was raised whic ‘h mvelves the primary, if not the exe lusive, jurisdiction of the Interst; ate Commetre ( omission When plaintiff? was allowed by the Court to supp’ ment its complaint and to imelude in pura graph IS the ajlegation that the uniform dnd Concerted rate reduction, Which took effect on or about November 20, 1955, was intended to exelude the plaintiff from the Pasi hess of carrying such shipment. of explosives: that said quotation was made for the purpose of effectuating one of the principal objects of the conspiracy, th: at ois, the elimi. nation of the plaintiff as a competitor with the railroads | j ,. Pg ci jor *: ‘fint © “xplosives traffic, As a defense ‘to this allegation, ‘it’ is also’ argawd that the new wates. are reasonable and eom- pensatory when all thegeost factors are taken into consid- ‘eration, and that, furthermore, the. rate quote ition Was set ? up according. to: procedural agr erments “approved by the (‘ommission and thus i Is LIM ZeC ‘from the operation of the antitrust laws by virtue of 49 ELS. CL, Sob (9). It is > glefendants’ position that this matter iMedtremely. techni- ®cal cand complex and ‘thus ‘the Court should: obtain the - expert opinion of the Co MISSION Ww ith respect to defend- amts?* contentions-beforys the Cast woes to ‘trial. Plaintiff argues, on the other hand, that it is immaterial whether defendants’ act, of reducing rates, considered by “itself, is ‘covered by prior procedural agreements approved -. byethe Commission or is immunized from the antitrust laws because it-is’a well-settled principle -of law that-a lawful act may be properly alleged as a means of effee- tating one ‘of the principal objects of the alleged con- spifacy; that is, the elimination of plaintiff as a conr 7 “petitor with the railvoads for explosives traffie. T hese, then, are the basic legal ixsnex before the Court. Certaih practical gonsiderations also enter into the ease. This private antitrust, suit against almost sixty defend- ants has been On the@locket over four years, ‘During that time, five diffe in: have made rulings. on various preliminary motions. In the interest of finally resolying the complex and serious isstes raised by this case and of ‘doing so in the spirit of Rule 1 of FL R. GC. P., this Court _ has set Qetober, 1999, as a tentative time for trial A great deal: of work by hoth’ Court and counsel will vet have ~ to he done in order to meet such a schedule, and this date may be delayed because of the -recent proceedings in our Court of Appeals. Both ‘sides liave- requested trial? hy jury,:. and: have estimated that thie trial will last from? four. to sit motiths. The Court’. has i¢ problem is this: Should this ? ? Ud e ; —+ Ha +é important antitrust suit, already more . thati four, years _ old, and ‘involving i Issues of serigus’ Importance io the fra. . tional transportation industry, be further delayed tor ‘ue or perhaps several years inorder that the. Court ivigehit — the “expert opinion of. the Luterstate) Commerce, Conimission as to whether one of me ¥ overt acts alleged to have been committed purstiant Ne vn. Sherman Act con: spiragy ought “to be Imnunized from the operation of the antitrust laws? os The rate reduction issne is, raised in paragraph IS of the ¢ pent iis Supplanente d, which reads as follows: "18. On or about Oct. 20, 1955, the railroad: defend: agits herein eaused to be submitted to. traftie offigials emploved by thie Department of Defense a tmiform, une published rate quotation, by and on behalf of the rail- roads engaged in cartying explosives traffic in com. petition with the plaintiff, Said quotation established railroad rates for carrying explosive shipments total" lig more than 50,000 pounds which were nearly forty percent below the veneral level of such rates prevail- ing for the previous eight Years. Said uniform and | concerted rate reduction, which took effect on or about _ November 20, 1955, Was intended to exclude the plain- tiff from the dusiness of carrying such shipments of ¢ explosives and has had that effect with respect to the principal points served by the plaintiff. Said quota- tion was imaile for the purpose of effectuating one of the principal objects of the CONSPIT: ney ch reread herein, to wit, the elimination of the plaintiff as a competitor with the railroads for explosives traffic and has sub- “stantially injured the plaintiff's business., The Tnter- state Commerce Commission hi aS no jurisdiction over ‘said. quotation and plaintiff will continue to aut substantial and irrepar, te injury from said: jlleg quotation -until and unless the acceptance of a pursuant thereto i is enjoined by this Court, ol , ~ ‘ — Ila In its earlier ruling on this motion, thix Court) was strongly influenced by the decision “in Atchison, Topeka and Santa Fe Railway Co. et al. v. Aircoach Transporta- tion Association, Inc., et al., 102 U,S. App. D.C. 355, 253 F. 2d S77 (1958), here Inatter referred. to as ACTA. On notions by both sides for summary judgment, the District Court there had ruled thit the ¢oneerted quotation by rail- roads under Section 22: of the LC: €. Aet of certain var-- iable rates and package bids for military passenger traffic Were por se illegal under the antitrust laws, qnd that Ue US. C2 5b (9), did not grant immunity from these laws, In reversing, the Court. of Apfreals held that it could not be said as a matter of law that all joint rate -redue- tions under section 22 must be excluded from, the’ class of _ concerted action’ covered by prior proe odural agreetie its approved by the Commission under 49 FL S. C., $4b (9), and, therefore, it was error to hold that all such redue- tions in rate must be denied immunity from the antitrust laws under 49 UL S.C, ¢ 5b (9). Hence, some section 22 rates arrived at. by joint. netion might he within the cov- erage of pr ior approved arrangements: for rate making and | heneé might be immunized, from the antitrust. laws. The Court of Appeals felt that the Cor mission's prior rulings us to the possible or vetual coverage of defendants’ conduct _by proe edural agree ments or as to the-C OMniission’s power “to decide these very questions were not clear’ and decisive. The Conrt observed. at p. S85: ; **Nevertheless,- the questions are appropriate for - (‘dénimission consideration, even though, as we believe, exclusive primary jurisdiction over either of them does not reside in the Commission by reason of section Ba (7) [49 US. ©. Sb yd : The Court of Appeals then ruled that the District Court should, in its diseretion, withhold decision on the inter- pretation of the F.C. C. Aet and the approved procedural ¢ . loa agreements until! the Commission has had a chance to decide initially whefher, in its opinion, the railroad rate reductions can be relieved from the antitrust laws because of coverage by approved agreements. After discussing the relationship of defendants’ practices to unlawful price-fixing, the Court of Appeals their set a limitation on the power of the Commission to resolve the — autitrust aspect of the rate practice... Jt said at page 365: “One further substantive legal question must be eon- sidered. Even though it-should be found in the end that the practices as such have been validly imununized by section 5a approved agreements, nevertheless, if they are part of an effort by Railroads: in combination or conspiracy to eliminate the competition of Aircoach, rather. than used merely to méet that competition, the” practices’ would be removed from the. protection. of section da -(9).° We do not think the Actor any agree- ment which has been approved under it can bes con- strued as authorizing the use of such practices for the purpose of eliminating the competition of Aircoach for the section 22 transportation involved. See, by analogy, American Tobaceo.Co. v. United States, 328 U.S. 78i, 809, 66'S. Ct, 1125, 96 L.Ed. 1575;"STate of Georgia v. Pennsylvania R., supra, 324. U.S. at page $58, 65 S. Ct. at page 726: Kobe, Inc., v.. Dempsey Pump Co., 10 Cir., 198 F. 2d 416, 422; Noerr Motor Freight, Inc, v. Eastern R. R. Pres. Conf., D.C. E- D. Pa., 155 F. Supp. 76%, 814-816, 822-825; Parmalee Transp. Co. y. Keeshin, D. (. N..D. TIL, 144 F. Supp. “480, 484; Noerr Motor Freight, Ine., v. Eastern R. R. | Pros. Conf, D. C. B.D. Pa. 113 F. Supp. 737, 142-04; Slick ‘Airways, Ine., Vv. American , Airlines, Ine, D. ©. DN: J., 107 F. Supp. 199, 214, appeal dismissed sub. - nom. American Airlines, Inc., v. Forman, 3 Cir., 204 F. 2d 230, certiorari denied 346 U. S. 806, 74.8. Ct. 54, 4a — ; ; -, USL. Ed. 336; United States vy. Association of Ameri- _ can Railroads, D.C. B. Nebo-4 FR. D. 510, 526. 5 0 The motion of Railroads i is not to be construed as ad- _mitting factual allegations in regard to a purpose to ’ destroy competition which would have the legal result of removing Railroads from any possible protection from the antitrust laws; sor can Aircoach’s motion be’ construed as dhandoning those allegations. Thus, on this aspect of the case, there remains a factual dispute. Moreover, this aspect of the.case need not, be submitted for.consideration or initial decisiom by the Commission : us to either questions of fact or of law. “There thus arises a matter of ‘procedure. As to this, a discretion must be left to the District Court | after aires the parties. It might be considered pref- erable, Aireoach desires to pursue the assertions ata a purpose to-destroy competition, that this branch of the case shotild be the subject of a hearing, limited to that problem. — Should Aircoach prevail Railroads would be liable in damages, and an appro- priate’ injunction also could be granted. Or proceed- ings in the Distriet Court on this subject, could await reference to the Commission of the _— of cover- age by statute or approved agreement.’ (Emphasis supplied.) The case of American Tobacco Company v. United States, 98 U.S. 781, 809, decided in 1946 and cited above was a criminal action brought under the Sherman Act and the defendants, who were ‘officers of Jarge tobaceg companies, - were convicted on four counts of an indictment charging ‘conspiracy in restraint of trade, monopolization, attempt- ing to monopolize, and conspiracy to monopolize, In the petition for éertiorari the question was limited ‘to ‘whether actual éxclusion of competitors is nee essary to. the crime ‘of monopolization under Section 2 of the Sherman Act.’ e s A -—~ lou —~ . At page 809 the Court said: ‘ “It is not the form of the combination or the pur. ticular medns used but the result to be achieved that the Statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or ‘unlawful. Acts done to give effect to the conspiracy may be in’ themselves Wholly innocent acts. Yet, if they: are part of the sum conspiracy whic h the statute forbids, they come within its prohibition. " 4 The cotirt in Isbrandtsen discussed this ppactic al policy ‘of judicial administration in the course of ‘explaining the rulings in two of its earlier decisions hic h had been re- lied upon by Par hast Conference. 4On page 496 of its Py opinion, it said: \ 4G ‘Petitioners ‘argue that @fir construction of * 14 Third is foreclosed by ‘this Court "s decisions in United - States Nav. Co. v. Cunareé S. S. Co... 284 U.S! 474 (76 L. Fd. 408, 52 S.A't. WAT): and Far Kast Confer- ence v. United States, 342 US. 570 (96 LL. Ed. 576, 72 S. (Ct. 492). A reading of those opinions immediately "refutes any snegestions either that fhis issue was expressly decided in those cases or that our holding here is a fully consistent with the disposition of those cases.’ The Court then summarized petitioners’ contentions ius toliows: tka The Board and the Conferenee argue that, if the Court in these earlier cates had thought that © 14 tad > “i : a . -“; - aac “Thy — - Third in any way makes dual rates per se illegal and —~ thus not within the power of the Board to authorize it would not have found it nevessary to require that: the Board first pass upon the claims.’’ ” In rejecting this reasonime, the Court said at page: 48: **It is,: thereforg, very clear that these cases, while holding that the Board had primary jurisdiction to _ hear the case in the first instane e, did not signify that the statute left the Board free to approve or dis- approve the agreements under attack. Rather, those cases recognized that in certain kinds of Viigation ‘practical considerations dictate a ‘division. of fune- , tions between corfrt and ageney unde, which bl ter makes a preliminary, comprehensive investightion of all the facts, analyzes them, and applies to them the statutory scheme as it ix construed,” . . . Thus, it is elear that the problem of whether or not a distriet court. should refer certain, issues to dn adminis- trative agency was not squarely bedore the court in the Isbrandtsen cas. . . ‘ *- Pe The question next arises: In what jifecise “way does | ' Isbrandtsen - modify ACTA! ACTA contained two basic holdings. “The first related ‘to the proper forum for de- cision of issues as to the procedural agreements and their connection with Section 2 rate practices. ~ The second, dealt with the exceptional cireumstances under which See. oa immunity wouki not apply, On the first issue, the ¢ ‘ourt. of Appeals held in the ACTA case that the T. Co €. and the District Court had coneurrent jurisdiction to decide the intent and effeet of approved procedural agreements in telation to Seetion 22 rates, and whether coverage by these agreements would immunize these rates from the antitrust laws. On page 364 of that opinion the court stated ax follows: 2 Vv ‘In short, the court. while retaining jatisdiction. should in its discretion withhold decision on the inter pretation of the statute and existing agreements ap. proved under section 5a. in-ular as the challenged practices aré concerned, until thi Commission has hig ah opportunity te-decide initially whether in’ its view thie Railroads Cah, With respect to- thes practices, be - relieved of the operation * based on the rate reduction issue. On the other hand, if . | - it should develop at the trial that the plaintiff can prove ~ that the rate reduction ax set forth in paragraph 18 was one of séveral overt acts alleged, and prove that this‘ rate reduction was made for the. purpose of. effectuating one 1 therein; that is, the elimination of the plaintiff as/a competitor with the railroads for explosives traffic, then under ACTA no amount of coverage by approved agreements and no degree of immunity -under 49 U.$. C. Sb (9) could remove: —the-rate reduetion from the prokibitions of the Sherman Act. of the principal objects of the conspiracy charge In reaching either of these alternatives, no detérmina- tion by the Commission seems ne cessary on the above contentions made by the plaintiff. E ven if the C ommission were.to decide that the rate reduction, considered by itself, conformed to the standards of the Interstate Commerce Act, it is nevertheless well settled that a lawful act may be validly alleged as forming a part of a conspiracy for an unlawful purpose such as to restrain trade. Noerr- Motor Freight v. Eastern Railroad Pres. Conf., -155 F. Supp. 768 (KF. D. Pa. 1957). The basie reason behind defendants’ motion-to suspend is the expectation of obtaining av LC. (. ruling that the Section 22 rate yeduction is ‘timmunized’’ from the op- eration of the antitrust laws by 49 U.S.C. 5b (9). This Court cannot. say how the Commission cad be likely to: rule if this issue alone were -submitted ‘to it. After'a sub- stantial delay in the. final disposition of this issue, it is _possible that defendants might obtain an adverse ruling.. Then all the harmful effects that a long delay brings to . protracted litigation would have been endured to ho pur- Las - The result would not be different if the de ‘Tendant~ won all of theiMarguments hetfdre the Commission, ‘In effect, the Commission would be ruling that the Sfction 22 rate reduction on ‘explosives, standing alone, we re covered by - approved agreement= on cate procedures and that there- fore they are pas from the operation of the antitrust’ laws by 49 U. obe().° Thus, no antitrust suit could be branght. ci on et act of reduei ng rates alone. This would simply nican that a private party could hot validly file a complaint alleging that defendants violated the anti- trust laws solely because they concertedly Jowered the rates on explosives traffic for the United States Govern- ment. Without such an immunity. provision, railroads would often be suspected of combining th fix prices when _ they make even routine changes. in their rates in coopers tion with each other. The railroads are right in their contention that cooperative or ‘joint rafe-making is. often exsential, especially when the goods jn question. ‘are nor- mally handled by many ec mpanies on a vast, interlocking * ‘rail system. As the court in ACTA observed at 102 US. ‘App. D.C. 2355, 361, 293 F DUNTT, 883 (195s): : *. . . Furthermore, upon the basis of extensive testimony in committee hearings on section Sa, bear- ing on its porsible applic ation to section 22 ‘rate ad- justment’ or reduced rates for war materials, the: House and Senate Committee Reports pointed out that the evidence Was convincing that the joint) organi- zations maintained by the carriers were not only neces- sary to ehable them to meet the commercial require- ‘ments of the nation but al Defendants also contend that plaintiffs request for in- junctive ‘relief to prevent further aets unrelated to the rate cut is not to be taken seriously, because plaintiff has _ male no effort to seek a preliminary injunction. This — failure, it is argued, shows that plaintiff does not really think it ean show substantial injury resulting from the alleged defamation campaignu.. But more reasonable in-- ferences may also be made. The size and scope. of the conspiracy alleged would make necessary a lengthy and costly hearing. Preparation for this would involve the sanie kind of detailed discovery that is now going on int 7 preparation for the trial itself, “coay, Ball: I would not, because the complaint al- leges things that go beyond the rate-making actions themselves. | r — The Court: T understand. TF didn't expect you to do it, frankly. IT mean that Lam saying that it seems to me that a hearing would have to be conducted Over “there, pursuant to the ACTA case, to determine whether or not the defendants were guilty of the very things that the plaintiff says they were guilty of. I don’t know whether they are or not, and T am not going to know until the evidence is in this case. Mr. Ball: Now, let me clarify one point.. The -Com- “mission is. not going te decide whether we went he- fore or did the public relations job. The Court: Of course, they are not going to decide. ° 7 that. . ; Mr. Ball: Those are the allegations that are not rate-making allegations. — re The Court: I understand that. Mr. Ball: But the Commission is the one that has got to decide. The Court: They are going to decided whether or not this agreement, the way it was prepared and agreed to, they are going to decide whether. or not that agreement itself was a valid agreement, correct? Mr. Ball: And first and second whether the activ- ities under it were in accordance with it and;.third, whether the rate made under jt, was it. made in ae- cordance with it, or whether there was a predatory practice or some violation of transportation policy. The Court: T understand, and they will limit their investigation and hearing on that point. Mr. Ball: Now, with that The Court: These points.’’ Counsel declined to so stipulate and thus impliedly ree- _ ognized the importance of those allegations if they could be established as true. _ —-—— > On the factual importance of these non-rate allegations, little can be said at this stage of the case. The parties are in the midst of discovery and the over-all picture is far fyem complete. It is impossible now to tell what evi- dend¢e thé plaintiff will present at the trial. Isolated state- ments of plaintiff's officers in answer to, interrogatories « and by wa¥ of depositions cannot be the basis for judging ~ the weight or importance-of evidence, as it may develop at trial, months from now. The procedufe of . waiting until the case has been presented on its merits’ was fol- lowed in the Noerr case and, furthermere, a separate hear- ing on the question of relief and damages was there held some time after the trial. Thus, no inference adverse to plaintiff can be made based on its failure to seek an in- junction befose the trial on the merits. oP >» ~ From: the above discussion, it is clear that the purely legal standards for referral of the rate reduction issue to the Commission have not been met. It is not the sole or dominant issue of the case ayf no possible ruling as to its coverage by prior approved procedural agreements would . be conclusive where such rate reduction is alleged to be part of a conspiracy to restrain trade. At this point, cer-' tain practical aspects of the referral problem must be considered. oe In the first place, undue delay with accompanying hard- ship and expense to the parties would almost certainly result if this issue were referred to the Commission. The ° rate question, while not the sole or dominant issue of the case, is, nevertheless, an essential segment of plaintiff's » : cause of action-and equally as important as the other al- - legations. The trial on the merits could not proceed prop- erly with this aspect _of the case missing. Referral would — delay the entire’ litigation. This Court has no power to compel the Commission to make. any ruling-at-all, much — less to bring gbout a prompt decision. A determination would have to await its turn on the Commission's crowded docket. It might be that many months would pass without Commission action. The Court- would then probably have to wait a reasonable time before itself taking action, and this might.amount to one or more years What ‘*a reason- able time*’ might ‘be ean perhaps be ga red by examining the duration of past ‘Confmission pr eedings involving numerous parties. In the memorandum filed by plaintiff, it cites the so-called Government reparations suits as an ex- ample. These actions involved many of defendants here and dealt with the reasonableness of the railroad explo- sives rates which had been in effect prior to the rate re- duction in November, 1955. _Thésuits were. initially filed by the Government in September and October, 1947. It was not unti) February, 1955, almost eight years later, that the Commission ruled ‘that the pre-1955 explosives % . — itt ha ° rates were reasonable, Cf. 294 LC. C. 5. Approval by the Commission df some of the Seetion 5a procedural agreements _ mentioued above consumed a great amount of time. This tanged from eleyén months for the Western Traffic Assoc ‘iation’s agreement to two years nine months for the, agreement submitted by the Southern Freight Association.! . The experience of the plaintiff in ACTA may also be rele- vant here. On pages two and three of fhe Memorandum of Aircoach Transport Association, Ine., et al., as amicus. curiae, filed in our Court of Appeals m this cause (No. 14, 562), it ix stated that on April 18, 1958 the District Court in ACTA entered an order’ in’ which ‘proceedings were to be ingtituted before the LC. C. by one or more of the parties within 20 days of this dafe; that proceedings before the I. C. C. were commenced before it on April 22, 1958, ry the Tiling of a petition or complaint initiating proceedings; and that the Commission has not vet acted on the issues referred “to it under. the District ‘Court's: order .of reference. he Thus, it will be seen that it has been over eight months sine proceedings were started before the Commission and . as of October 31, 1958 it had not yet taken any. action. | Besides that, there ‘s noihing.to indicate to this court how ~ Jong it will take fer the Commission to render its decisiow in that case, andeven after the Commission has rendered nt t. 4— Agreement application filed November ‘15, 1948; de- cidgd October 3, 1949, 276 1 CC. 1R3. Eastern Railroads [TEA]. Agreeme nts application thed December 7, 1948; decided March v4 1950, .2 77 I CC. 99. Southern Freight Association, et al — Agreements? applic: ation tiled January 5, 1949, decided October 18, 1051, 283 1. Co C., 245. See also, Mhnors Frew ut Assoc iation—Aarcement. application tiled April 28, V950:. decinied August 17, 1951, 283 1. C . we Southern Ports Forci wn Freight Committee—Agreement, applica- tion filed, March 16, 1950; decided April 11, 1952, 224 1 ¢. ¢. 775; Railroad Interritorial Agreement, application filed October 18, 1950; decnied January 21, 1953, 287 T°. C. 701 31a _ its decision, its ruling may be appealed by one: of the’ parties. If this happens, considerably more time will un- doubtedly elapse before the Courts will be able to render a final decision in that case: It must also be remembered that in connection with defendants’ motion to suspe nd proceedings, it also re-- quests that all discovery proc ‘oodings regarding the rate reduction issue’ be suspended until the Conimission hais made itx ruling. It would thus seem tht a reasonable-tine before (‘om- mission action might well be, measured in years rather . than.months. The Court has taken into consideration the fact that this action has been pending more than four vears; that it will be many months before a trial ean be had, and that it will take fron: four to six months to try the case. It would by contrary to sound judicial dise ‘retion’” to permit this addifional delay to this over postponed liti- gation merely to xeek an optional ruling from the Com- mission on the rate r eduction aspect, whic h is nat the sole or dominant issue in this ease. In addition, the very nature of the other overt acts alleged reveal the great importane e of early consideration of these acts on their merits as soon as practicable. The claims und counterclaims in this case indicate continuing injury to‘the business of the various parties. Plaintiff's request for injunctive relief should be- resolved without unnecessary delay. New delay will add to the difficulty of obtaining witnesses and will further dim memories of facts essential ‘to ali parties. The extraordinary cost to all parties of this litigation would also be increased. Thus, the Court concludes that too much delay has al- ready taken place in-the disposition of this case. In fair- ness to all parties, the Court deems it essential to get to. the merits ‘of the case as speedily as possible. Reference to the Commission would only serve to thwart this parpone, the object of that known conspiracy.” is "" .o3 ; When one enters after the inception » a continuing con- ‘ spiracy, he becomes liable for the acts of all the conspira-— tors since the conspiracy is, in effect, renewed each day of its existence. United States v. Borden Co., 308 U. S. INH, 202 (1959); United States v. N. Y: Atlantic and Pacific ' Tea Co., 137 F.2d 459, 463 (Sth Cir. 1943), cert. denied, 320 U.S. 783 (1945). A reading of the complaint reveals that plaintiff will attempt to prove the existence of an anti-trust conspiracy continuing over a period of several years, When dealing with such a charge, it is essential ‘to consider the allegations as a whole and not to dis- “member it into many parts. United States v. Patten, 226 U.S. 525,544 (1913). Sinee, therefore, the defendants’ degree of participation cannot be judged before plaintiff has presented all its evidence and since even a lesser role in a conspiracy may ring about liability equal to that of prime movers, it cannot be said that any one allegation such as the rate reduction issue is of dominant importance as. to these defendants. —_ These considerations apply with equal force to defend-— ants Grand Trunk Western Railroad Company and Central Vermont Railway. They urge on page 3 of their separate meniorandum that the only connection with the defama- tion allegations whivh has been so far adduced is the mere ‘*mute membership’* of each petitioner in two of the ‘rail assoviations named as defendants, and that, hence, the’ rate : 4 a. itl P ——.-Kl -- « reduction is: the dominant issue as to them. They cite United States v- Food and Grocery Bureau of Scuthern California, 43 F. Supp. 966, 973 (S. D. Calif. 1942), to establish the principle that mere mute membership in an association charged with an unlawfal criminal conspiracy will not impose liability upon a member. This would seem . to be in accordance with the general principles of con- ‘spiracy law discussed abové. Some degree of knowledge and consent to the conspiracy or some kind of khowing assistance given in furtherance of it is usually required to impose ligbility. ‘ In their brief, these Co. v. Association of W. Rys., 159 F. Supp. 288 (D. C. D. C. 1958); Riss & Co. 7. Association of HW. Rys., 162eF Supp. 69 (D. C.D. C. 1958); Riss & Co. v. As- sociation of Am. R. R., 170 F. Supp. 354 (D.C. D. C.), cert. denied, 267 F. 2d 639 (D.C. Cir.), cers. denied 28 U. S. L. Week 3111; (U.S. Oct. 12, 1959); Riss & Co. v. Association of Am. R_R., 23 F. R.D. 211 (D.C. D.C. 1939); Riss & Co. v. Associa- tion of Am: R. R., 24 F. KR. D.7 (D. C.D. C. 1959), Riss & Co. 7. Association of Am. R. R.; 178. F. Supp. 438: (D.C. D. C. 1959), cert. denied. No. 13.476 (D. C. Cir... Mar. 7. 1960). --4dla— whole, at least 90° of the government. niunitions traffic, . without regard to the merits of any particular railroad or _ group. of railroads as competitors for such traffie. Plain- | tiff further alleges that the railroad association defend- ants and the public relations firm were the agents of the individual railroads in accomplishing this unlawful purpose and that‘the key to the participation of the individual railroads és their knowledge’ of the alleged unlawful de- ‘sign? ‘ The trial of ‘this ease began jon January 5, 1960, and plaintiff has*now completed the presentation of its evi- dence, The trial transcript mumbers 11, f58 pages, and the number of actual trial days totals 67. Plaintiff has intro- . duced 283 txhibits, and the various defendants have had marked for identification 378 documents, of which 253 have been used on cross-examination. Now, after almost five months of trial, the Coart has before it Motians to. Dismiss or for a: Directed Verdiet, filed by all deferdants pursuant to rules 41 and 50 of the Federal Rules of Civil Procedure. This opinion will first consider defendants’ Motions to Dismiss the Complaint. Plaintiff has offered evidence which it contends shows that certain rate reductions by* the defendant railroads in the fall of 1955 and the spring of 1956 were made .for the purpose of eliminating plain- tiff from the business of transporting — and ex- plosives for the United States Government: i. e.. that such. rate reductions were overt acts pursuant any a ye Sin ‘conspiracy to eliminate plaintiff as a railroad competitor for this traffie. In 1958, defendants moved this Court to F . 2 The oninion of this Conrt in Rise & Co.¢. Association rf Am R. R..170 F. Supp. 354. supra. vet- forth in detail the factual back- ground of this case. However, plaintiff has not introduced evidence en some of the charges indicated therein: e. ¢.. “that defendants tried to infiltrate and make u-e of |. . the Tlinois Parent-Teacher. - Association” (170 F. Supp. at 358) a — 42a — \ : % suspend proceedings and refer these challenged rate: re- _ ductions to the Interstate Commerce Commission under the doctrine of primary jurisdiction. Defendants argued ~ then that the intent and effect of these rate: reductions, made pursuant to procedural agreements approved by the Commission, should be first considered by the Commission, so that the Court could obtain that agency's expert opin- ion on this issue before trial.- Defendants contended that these rate reductions were imprtinized from the _ of the antitrust laws by virtue of 49 UL S.A. C., § 5.(b) (9)..The Court denied this motion. The Court of Ap- peals far the District of Columbia Cirenit held that such issue should be referred to the Interstate Commerce Cém- mission if, in the opinion of the trial court, it was ‘‘the - sole or dominant .issue in the @ase.’’ (Atlantic Coast Line — R. RB. v. Riss & Co., 267 F. 2d 659, 660 (D. C. Cir. 1959)), and that referral was not necessarily required: ‘*. . where the agreement is only one of a consider- able number of overt acts alleged and where the pol- icy favoring referral is clearly outweighed by other factors such as the probability of undue delay... .”’ (Atlantic Coast Line R. R. v. Riss & Co., 267 FP. 2d "697, 658 (D. C. Cir. 1958) ).. wr This Court, thereafter, in Riss & Co. v. Association of Am. R. R., 170 F. Supp. 354, supra, found that the chal- lenged rate practice was not the sole or dominant issue in the case, and again denied the motion to suspend. A petition for writ of certiorari was denied by the Court of Appeals for the District of Columbia Cireuit (267 F. 2d 659, supra) and a motion for leave to file a petition for certiorari was denied by the Supreme Court (Atlantio Coast Line R. R. v. Riss & Co., 28 U. S. L. Week. 3111 (U.S. Oct. 12, 1959)). In its earlier opinion in this matter, this Court jound that the rate reduction practice was not the sole or dominant issue. The present motion to dismiss 42 ix based 6n defendants’ contention that ‘planit'ff's evidence - makes it clear that the intent and effect of the-rate reduc- tions ‘‘in reality is the ‘dominant, issue’ ’’ (Memorandum in Support of Motion to Dismiss or Direct Verdict for-all Defendants, p. 2). The Court is not in agreement with this argument. ‘: After almost five months of trial, the Court is cou- vinced more than ever that the challenged rate reduction ix not the “sole or dominant issue’? in-this ease. Defend- auts’ motions to dismiss are accordingly denied, Defendants’ Motions for Directed Verdict are based es- sentially on three grounds: (1) the recent decision of the | Supreme Court in Talley v. California, 2s U.S. L. Week. 4186 (U. S. March 7, 1960); (2) lack of stibstantial evi- dence of a pre-existing conspiracy in violation of the Sherman Act; and (3) Jack of substanfial evidence of the causation of injury or fact of damage. These grounds will he. considered. in order. : In the presentation of its’ prima facie case, plaintiff's evidence of the alleged ‘pre-existing conspiracy’? con- sisted in part of documents from which a jury could find that the defendants used the ‘so-called non-attribution or “third-party technique” of publicity is not disclosed. It is plaintiff's contention that such publicity methods,-when done for an unlawful purpose (e. g.,. monopoly), are not protected by the’ First Amendment guarantees of freedom of speech and press ((‘f: Noerr Motor Freight v. Eastern R. R. Pres. Conf., 155 F! Supp. 768 (E. C. Pa. 1957), aff'd 273 F. 2d 218 (3rd Cir. 1959), cert. granted, 28 U.S. L. Week. 3307 (U. a. - April 18, 1960). . : in which the author or sponsor In the recent Talley case, the: Supreme. Court had oeca- sion to deal with the problem of anonymous speech. There . the Court held invalid a broad municipal ordinance of the 0 s % - C ” j= — 44a -- City of Los Angeles which provided, in substance, that no handbills speuld be .distributed which did not bear ort their face the name and address of the person who caused the same to. be printed, written; compiled, manufactured~ ~~ - ‘or distributed. Talley was convicted of distributing. pam- phiets of” the “National Consumers. Mobilization’’ which urged the reader to boycott certain merchants who carried . products of manufacturers who did not give equal. em- ployment opportunity to certain minority groups. His conviction - was- reversed by the Supreme Court) which, after citing examples showing that, historically, anonymous pamphlets have played.an important role in the fight for freedom, proceeded to the rationale of its holding: *“*We have recently had occasion to hold . . . that there are times and circumstances where States may not compel members of groups engaged in the dissem- ination of -ideas to be publicly identified). Bates v. Little Rock, 361 U.S. ...; N. A. A. C. P, v. Alabama, 357 U, S. 449, 462. The reason for those holdings was that identification and fear of reprisal might deter per- fectly peaceful discussions of public matters of im- portance. This broad Los Angeles ordinance ‘is sub- ject to the same infirmity.’’ (28 U.S. L. Week. at 4188. Emphasis added.) fs Defendants cite Talley fer | a blanket holding that all faonymonn. publicity 1s thus protected by the Constitution - and that therefore the publicity activities by ne corporate defendants and associations complained of. here are sim- , Hlarly protected. The Court does not agree. “In Talley and . Little Rock, the -basis for the Supreme Court’s ruling was that established fears of reprisal and intimidation might deter minority groups from peaceful discussion on matters of public interest. Such is not the situation here. The - railroad defendants are among the largest corporations in the country. It certainly cannot be contended that the o : dona railroads of the nation will be in danger of intimidation or reprisal if their identities in coimection with publicity are revealed: Plaiptiff’s evidence could justify a jary in - ~—-finding-that defe udants employe ‘d hostile publicity against plaintiff by means of the “third Patty technique’. For ‘the reasons mentioned, this Court finds that Talley is not controlling here (See Noerr Motor’ Freight v. Eastern R. RB. sage Conf., 155 F. Supp. 768 (KE. DY Pa. 1957), Aff’d 2723 F. 2d 218 (3rd Cir: 1959), cert. granted 2s U.S. L: Week. 3507 (U.S. April 18, 1960). Before proceeding to a consideration of defendants’ eon- tentidn that the. record discloses a Tack of substantial evi- dence from whieh a jury could find the existence of a pre- existing conspiracy and the fact of damage to plaintiff, the Court feels it would be helpful to review some of the well established principles of law re dating to motions for - directed verdict. ‘In considering defendant : te YF ra ‘ bers, are sufficient to charge the miebern with liability for such activities (Metropolitan Bag & P. Dist. Ass’n v. PTC, 240 F. 2d 241, .244 (2d Cir), cert. denied 255 U.S 819 (1957)). The individual railroad members of the asso- ciations can he held responsible for the unlawful conspira- torial acts or declarations of the associations only if they are shown to have known and approved of suclp activities and of their unlawful objective4 Qn the basis of all the evidence presented, the Court feels that a jury could find that a conspiracy of the type alleged by the plaintiff did exist, with the defendant as- sociutions and the public relations firm as its principal participants. Further, the Court feels, on the basis of the evidence admitted as to each individual railroad defend- ant, that the jury could find that each of these defend- ants, though not involved in every detail of sneh eonspir- ° ey, bad knowledge and approve of its illegal objective. and the .general means. of ¢arrying it out. If the evidence is such that a jury could find that a Conspiracy under the antitrust laws existed, only slight evidencecis necessary to connect individual conspirators with it (United States v. Morgan, 11% I. Supp. 621, 743-44 (S. D. N.Y. 1953)). 4 Defendants’ third point on these Motions for Direeted Verdict ix that the evidenee does not present sufficient proof of causation of injury or fact of damage from which the jury could find that plaintiff was ‘injured as a result of any conspiracy on the part of the defendants. “The (‘ourt, in the tria! of this case has, in its diseretion, aliowed counsel for defendants considerable latitude on eross-ex- ‘amination, ever to the extent of allowing examination on matters which might -be more properly part of an affirma- 4 De fe ulant- agree that.this 1. a correct -tatement of the law See "Defendants 0. 16, 21, ete. Memorandam in Support of Mo tion for Directed Verdict. page 9 . ne GR con, Geita tive defense. The number of docaments marked for identification and used by defense counsel on cross-exam- inatidn totals 353. This croxs-examination has placed be- fore the jury charts and documents from which they é coukl conclude that several factors were responsible for the loss which plafntiff alleges it suffered as a result of the Alleged conspiracy. _ Defendants’ cross-éxamination has .attempted to develop that a number of causes other — than the conduct of the defendants were responsible for the plaintiff’s loss. “Plaintiff’s president.on cross-exam. ination has dénied that these factors were responsible for plaintiff’s losses. These other influences include the end _ of the hostilities in Koreain 1953, the cancellation -by the . Interstate Commerce Commission of certain of the tem- porary operating rights of the. plaintiff to transport am-.“ munition and explosives, difficulties resulting from certain purchases of defeetive equipment by plaintiff, and certain errors in management and business: judgment by plaintiff. Judge Wyzanski, in a well-reasoned opinion in the case of Nomand v. Universal Film Exchanges, Inc., 72 F. Supp. 469° (D: Mass, 1947), aff'd 172 F. 2d 37 (1st Cir. 1948), cert. denied 336 U. S. 967 (1949), a case ‘where the evidence tended to show multiplicity of causes of injury, stated as follows: : ; ** . .. the loosest construction [ofthe Anti-trust laws] would require a plaintiff in a private Anti-trust case to bear the burden of proving that defendants’ unlaw- ful acts ... were either a cause of a specific fraction of his losses or, at any rate, a more substantial cause of his losses than was any other known factor.’' (72 F. Supp. at 482. Emphasis added.) Applying this test to the evidence of damages pre- sented by plaintiff and the evidence tending to show. other causes elicited by defendants on cross-examination, the Court feels that in view of all the evidenee the jury could EB L find that the alleged acts of defendants were ‘ta more sub- stantjal catise’? of plaintiff’. loxs “than was any other known factor’’. : s- Ata - Accordingly, the VMotion of all Defendants for a Directed Verdict is denied. The Court does not wisli to be under- stood as indicating that at the close of all the evidence, the plaintiff will of necessity Juve made a case fer the jury. The Court only holds that at thix stage of the evidence, ‘the defendants are not entitled to a direcwed verdict. De- fendants, of course, under the provisjons ‘Does Riss claim that it is a violation of law fer a railroad or railroad-as-ociation to attempt to drfer- Le est public organizations in the activities of iss, or _of truckers; of explosives generally, or of long-alis-- fanee truckers generally? “*Answer: No."* F-6: ; - . ~ ** Does Riss contend that Joint action by railroads to assert their generally common interest in Opposi> tion to the grant of operating authority in a proceed- ing before a regulatory agency is a violation of the antitrust laws? ‘Answer: No.’ - , (i-1: i . ‘Does Riss Claim that the organization of 4 com- mittee of counsel to répresent a number of railroads @. ia proceeding before the Interstate Commerce Com mission is a violation of law? **Answer: No."’ (j-2: "aA ‘Does Riss claim that it is a violation of law for a railroad or an association of railroads t@ expend” funds to publicize the activities of truckers? ** Answer: No.”’ a.) G3: | ane ‘Does Riss claim that it is unlawful for a railroad to expend funds in the preparation and presentation of evidence’ before ‘tye Tnterstate Commerce Commis- sion in opposition™%o an application for increased authority by Riss? : ' .** Answer: No."’ ix not liable for acts performed by such co-defendant in’ - ~“furMleranee ef that latter conspiraey. **Nobody ix liable in conspiracy except for the f4ir * import of the concerted purpose or agreement as be understands it: if later comers change that. he i In this reg gard, T might tell you that the hauling of explosives by ‘truck or ratl is a matter of public interest. Defendants claim that for many years Plaintiff failed to render adequate service as a commen carrier, and. that the Plaintiff has on many occasions violated Federal and State laws, and regulations: relating: to motor carriers, and has conducted its operations with Inadequate, unsafe aud improper equipment ; has disregarded the safety and wel- fare of other users of -the public highways, and the safety and ‘welfare of the communities through w hic ‘h its trucks , In regard to the evidence relating to certain violations of State ajyl Federal laws: by Plaintiff Company, the evi- dence-on these matters may be considered by you in your determination of Defendants’ intent. vebves, vou should a defense to the plaintiff's. charge that: the Defendants have violated the antitrust laws by conspiring to elim. ‘inate the Plaintiff from competing with them or to T0- nopolize the business in which Plaintiff was offering such compefition. Evidence of such viol: itions has been ad- mitted only for, the purpose of permipting the fullest ex-: ploration of the ee purpose ‘and intent. keep in mind that the existence of such violations ix not. J %. . ‘ $ - a 3 eo? — Sa —- If you find that two or more Defendants did, in fact, . conspire to eliminate Plaintiff's competition -in, or te mo- a r nopolize the business of transporting explosives for the Government, then a belief by those defendants, no Matter how sincerely held; that they were thereby weting in the public . interest | would not: legalize such a-conspiracy or » immunize Defendants against liability. I do not, of course, intimate: in giving this or any ren instruction, any opinien as te whether the evidence has establighad that there was or was not such a conspiracy. Those Defendants that ‘intervened allege that ‘their inler- vention in certaiy proceedings before regulatory’ bodies involving’ the Plaintiff have been the reagonable, ordinary, ‘and necessary result. of these alleged unlawful activities of the Plaintiff. : ‘ | It is the further, contention of the Defe ndants that when governmental bodies and other publie organizations inter- _vened or participated in proceedings before the Interstate ~ Commerce Commission involving the Plaintiff, that) such. intervention was not the result of any unlawful activities” on the part of the Defendants; hut was; instegd, the result of an independent decision on the part of each such ergan- ization that such action was necéssary by reason. of their respective interests and Plaintiff's alleged unlawful and improper aetivities. Defendants claim that any action taken-by courts or administ ‘ative agencies against the Plaintiff was based of good and reasonable cause and was ‘not the proximate result of: any action of the Defendants. Both parties, as you have: heard from the arguments of ‘counsel, ¢laim that their evidence Ball: I don’t agree with that. 2 Mr. McKay: Wouldn't it therefore be appropriate for Your Honor not necessarily answering the specifie hypo- thetical question, but simply to repeat what you said a few - moments ago about the three elements which is oby iously the direction to it, and it seemrs.to me that would be help- ful to the jury in the posture that you are now in. Senator Wheeler: In ether words, vou can find the De- fendant guilty of negligence, but no damages. And thiat has been . Mr. MeKay: Your Honor, let me ask this, if LT may: Why couldn't you say, Now [| have fully covered this in my chart, but if you want to know what the form of vour ver- dict should be in the event you find no damage, the form « of your verdict should be a verdict for all Defendants? The Court: Tam trying to find that part. We are talk- ing about damages. . Mr. MeKay: It starts at page 40, T think, Your Honor. The Court: Here it is. ~ ; “> ¢ - Well, there is one part in it my charge where [ said, You have to find three things in this case. It hears on the causal connection. That is the part. Would you try to find it? (Hands document to Law. Clerk.) ——* ‘The Court: T have this typed up espee ‘ially for the charge so it wouldn't have the citation. There is one place T sum- marized it. a Be ai Mr. Wheeler: There. That ix the only fliing F. hee. It _ is difficult for a non-lawyer to wade through it and find the: pertinent part. ' The Court: Tam going to hear from the Plaintiffs Mr. Wright: If you want te know .w hatthe Plaintiff's —_ fe _- Hite - “* -position is on this ] repeat it ix either a flat unequivocal ho answer or what: you have just when you firs) came in ‘rather than some ‘attempt to single out, ahswer the ques- tion by singhng out several ~~ af the charge. I think that would be prejudicial error, «--—-—__... ti A The © ourt: [| have given this a lot of thought and J think ‘Lam right-on doing it. | am voing to make this statement so there won't be any possible error, and then if they come hack later that's the thing. Jam going to read them the statement I prepared and let it-go at that. and then they ‘will go-back and read their charge, | hope. That’ is on page ot, That is where I said: | will how instruct vow with re- spect to damage and the standard which the Plaintiff would meet to-sustain the burden of proof that it) has beet * damaged. You are not to assume the fact that [ instruet von on damages that [ hold the view that the Plaintiff has of has not proved that any of the Defendants engaged in any conspiracy, or that any ef them engaged in any acts fur. ther of such conspiracy, or that the Plaintiff has or has net been damaged. These matters, of course, are for you, the jury, to decide. . . Plaintiff has the burden of | proving the existence of cau. sal relationship between Defendants’ alleged miseonduct and some injury to the Plaintiff, that is. it. nuet prove hy a fair preponderance of the evidence that its business or property has, in faet, been damaged as a direct result of a conspiracy as previously defined among two or more of the Defendants. Proof of this necessary causal relationship requires the large majority of the jury takes a different view of the case from what he himself takes. . ‘No juror should go to the jury room with a blind ‘determination that the verdict should represent his — = =-ita— .* } opinion of the case at that moment, or that he should close his cars to the argument of other jurors who are’ equally as honesf{ and intelligent as himself. ** Accordingly Salthough the verdict must be the ver- , diet of each individual juror and not a mere. aequi- escence in the vonclusion of your. fellow jurors, the Court instructs you, howev or, that you should examine the issues submitted with an open mind, and with a candor and with proper regard and deference to the opinions of each other. ai ‘It ix your duty to*decide this case if you cah con» sciemtiously do so. You should listen to each other's arguments with a disposition to be cony inced. If much the larger number of jurors favor one ide or the other, a dissenting juror should consider whether, in the light of the opinions that are expressed by the other jurors, in the jury room, he is not in error as to his views, | ‘*T want you to go back-to the jury room and con- tinne your deliberations. Diveuss the matter among * yourselves ina friendly spirit and, endeavor to agree” upon a verdicf."’ I am going to suggest that I think probably the jury - ought to go to dinner first and let the Marshal know if they wish to deliberate after having-dinner; that is, when they arrive in the jury room, Se we can wait arourl and find out what they are going to. do. That ix the only thing I can do. P Mr. Wright: If the Court please, T would like to make a suggestion—this one suggestion: I think there is a possi- vility, perhaps one chance in a thousand, but T think the chance should be eliminated in any event that these jurors may have concluded that a unanimens—when they say they can't reach'a unanimons verdict that means they have ° not been able to reac +h a unanimous verdict as to all de- fendants. : ¢ . ee en ee ~—llia - ; . .* F ° ‘ ‘ 6° a To eliminate that 1 would not suggest any farther in structions, but I do believe they might be asked a single 3 question: ** Have you been unable to agree as to the lia- ‘ bility: of any defendant?"’ That_is, before the charge is gtyen. os The Court: I think it is——- * ‘ ° Mr. Wright: **Have you.been unable te reach a verdict as toany defendant f 9 - “a That is all 1, would suggest. , The Court: eE nable to reaeh a unanimous verdict.” Mr. Wright: Yes, ax-to any defendant. ar Mr Me@lothlin: That troubles me. Bewanse it certainly implies that they have made a stride forw ard if the - A finned two defendants were in a conspiracy. “ Asx far as | am coneerned, they have net made a stride forward. They have still got a comber of questions te reach before they could* reach the question of a verdict’ _Augainst any de fendapt. . Senator Wheeler: It might indicate that: they mikhy think that the Court felt they reached # unanimous agree ment at that as to some of them. ; The Court: Well. let me ask you this: I damages—it can be any amount; nominal or any amount. If they do not find any damages, then they ought to find for the defendants. Mr. MeGlothling Tf they find no damages, they should, “ find for the defendants. The Court: That ix what the law is.” Mr. Wright: They have disregarded your Honor’s in- structions to return a general verdict. The Court: Tam going to tell them if they find no dam- ages—they have to find damages even if it is six cents. — Mr. Ball: You have thet point, your Honor. + The Court: Yes, Lam-coing to make it clear to them. Mr. MeGlothlin: 1 would let it lie, bat Tam. not -in charge. . Mr. Shea: You have something there, your Honor. Mr. Wright: There ix one. thing mere on this. The Court: Tam going te read the damage charge. Mr. Wright: I wish to make a formal motion for a mis- trial. I think that the Jury has so far misunderstood the ‘Court's instructions that there could be no proper verdict at this point. I would like to make a formal motion for _ mistrial on that ground. The Court: I will get the part of the charge on dom- ages and IT will read it again. Mr. Gates: They left vour charge on my table, vour . Honor, I will get it for vou. Lr: — | - oe F | Mr. Rhoads: May I‘make objection in advance to any suggestion that the jury, in the face of its present verdict, way render a six-cent or nominab damage amount as dam- ges, - The Court: I will instruct the jury what I think the law is. : Mr. Rhoads: Thank you, sir, 1 wanted my objection on the record. The Court: Yes. ‘2 ‘ SUPPLEMENTAL INSTRUCTIONS BY THE TRIAL COURT. The Court: Now, Mr. Foreman, and Ladies and Gen- tlemen of the Jury: The Court’ believes and feels that you probably have. not quite either comprehended or under- stood the Court's charge on the qhestion of damages. The Court will first refer to that particular part of the charge ‘and T will read. it-to you. “T will not instruct you with respect to damages and the standards-which the Plaintiff must meet to ‘sustain its burden of proving that it has been damaged. “You are not to assume from the fact that I instruct you on damages that J hold to the view that the Plaintiff has or has not proved that any of the defendants engaged in a conspiracy, or that any of them engaged in any acts - in furtherance of such a conspiracy, or that the Plaintiff has or has not been damaged. These matters ‘are,. of course, for vou, the Jury, to decide. Plaintiff has the bur- den of proving the existence of the causal relationship be- tween defendants’ alleged misconduct and injury to the Plaintiff. That is, it must, prove byia fair preponderance of the evidence that its business or property has in faat been damaged as a direct result of a conspiracy, as. pre- viously defined, among two or more of the Defendants.’ “Proof Of this, necessary causal relationship requires \ something more than proof that one or more of the defend- >. E —— 14a —~ ants did something at or about the same time that the Plaintiff's business declined. ‘Now, to simplify the matter, there are three things you must find in a civil anti-trust suit: First, that the con-— spiracy ‘or combination has been’ proved by a fair pre- ponderance of the evidence as alleged by the Plaintiff: ‘Second, that there was a causal relationship between that business, that conspiracy and some damage to the Plaintiff's business; then, if you find that there was dam- age to the Plaintiff’s business, how much was the damage? Now it does not make any difference what the damage was. It can be nominal damage. | am not suggesting you ar- rive at any amount. There ix no minimum or no maxi- mum—no minimum, at least. In other words, if you believe that there was a conspiracy as the Plaintiff alleged, and that there was a causal connection between the conspiracy and any, damages to the Plaintiff: But, if you believe there were no damages, then, of course, as I think I have indi- cated before, 1 think the defendants are entitled to a ver- dict. Bat, if you find even a nominal sum for the Plaintiff, you believe the conspiracy existed, tfere was ‘a causal re- jationship between the conspiracy and damage to the plain- tiff’s’ business, then you can assess the damage in any reasonable amount or any amount that you think the plaintiff was damaged."* . The Court does not believe this is a legal verdict. Lb am going to ask you to return to your jury room and de- liberate further. I will not accept this verdict. Just a minute. 1 will hear you after the jury retires. ‘ Then I will hear counsel. Mr. Ball: Thank you, Your Honor. (The jury retired at 3:31 o’cloek-p. m.) The Court: All right, Mr. Wright. Mr. Ball: I’ think the Court misspoke itself. I think the Court did not intend that it did not aceept the verdict with respect to those defendants. - : ¢ aad * ) Ba | a a . e The Court: Well, we will come to that. We will cross that. bridge when we come to it. Mr. Wright: 1 would like to make a formal motion for acmistrial and move that the jury be discharged upon the ground that they have 0 completely misunderstood: the Court's’ instructions in the case that there could be no fair verdict from Ahix jury. The Court: Well, L will deny the motion. Mr. MeGlothlin: 1 would like to enter’a formal motion that judgment be entered for the defe ndants upon the verdict as handed to your Honor. The Court: The Court does not believe, ax the verdict was handed to the Court, that that was a legal verdict, and the Court feels that, in order to constitute a violation of the anti-trust Liws some damage must have existed or occurred, no matter whether it ix two eent The Foreman: For the Defendant. Deputy Clerk: | Missonri-Kansas-Texas Railroad Com- pany. . 3 The Foreman: For the Defendant. lta — Deputy Clerk: Missouri-Pacifie Railroad Company? ‘The Foreman: For the Defendant. : Deputy Clerk: New York Central Railroad Company. The Foreman: For the Defendant. _ Deputy Clerk: Northern Pacifie Railway Company? The Foreman: For the Defendant. 4 Deputy Clerk: The Pennsylvania Railroad Company? The Foreman: For the Plaintiff. Deputy Clerk: St. Louis-San Francisco Railway Com- pany ?. | ; : The Foreman: For the Defendant. Deputy Clerk: Southern Pacifie Company! - The Foreman: For the Defendant. “Deputy Clerk: Union -Pacifie Railroad Company? The Foreman: For the Defendant. Deputy Clerk: Wabash Railroad Company! The Foreman: For the Defendant, . Deputy Clerk: Minneapolis, St. Paul, Sault Ste. Marie Railroad Company? : The Foreman; For the Defendant. Deputy Clerk; :Southern Railway Company? The Foreman: For the Defendant, Deputy Clerk: Seaboard Air Line Railroad Company‘ The Foreman: For the Defer dant. Deputy Clerk: What is the amount of your verdict ?, The Foreman: $75,000. Ha 0°30 Fach -» 7 oe. “f f ings iy : ~~ + «. FORM OF VERDICT * What ie your verdict ae to the plaintiff “ e each a’ of the following defendants? ‘ es, oy D ! #1OR) (1) Association of american Railroads Wray a Hold, 2 42) (3) (4) (3) (7) (8) £9) (10) mee) ‘ for Pieineit? Por ehh >. Association of Weetern Railways ’ ; % L—- ‘for Lee “G For Defendant Traffic a a7 Association - Rastern Reilroade— for Pletacs ; Por Defendant Bastern Reil a Conference Av Ler lif ~~ | Por Pleinti For Defendant Cerl Byoir ae Inc. d } ; t LF oe, ¥ Plaintite Por Defendant Atlentic Coast Line Ratlroad Company For Plaintiff Por FE Bfuet Atehison, Topeka & Sante Fe Ratlvey Coup any For Plaintiff For De Baltimore & Ohio Railroad Company For Plaincif? . For De et Chesapeske and Ohio Railway Company é Vor Pleintif? Chicago, Burlington & Quincy Ratlroad Yor Pleinti?? Chicago, Milwaukee, St. Poul & Pacific Rat Vor Pleintife = (12) Chicago end Northwestern Reilway Cospany For Plaintiff (13) Chicago, Rock Island & Pacific Railroad KG For Plaintiff (16) Erie Retlroad Comany Por Plaintiff as) Great Northern Retlwey Company For Plaintiff P (16) Illinote.Central Railroad Comp any For Pleinciff (17) Miesourt-Kansas-Texas Railroad Company For Plaintiff (18) Miseourt Pacific Reilroad Comany- for Pleintifé (19) New York Central Railroad Coopany *.etsco Railway Company, Southern Pacifie C ompany, U nion . “as 4 * - ¢ ‘ > ‘Railroad Conipany, New’ York Central Railroad Company, . Northern Pacific Railway Company, St. Louis-San Fran- - Pacifie Railroad Company, Wabash Railroad Company, = Minneapglis, St. Paul & Sault Ste. Marie Railroad Com-. pany, Southern Railway Company atid Seaboard Air‘Line | cmt defendants Association of Western Railways, Traffic Railroad Company, that sail defendants go, Hence without day, be for nothing held and without costs. “And Further, It Is Sentien: that the plaintiff recover Executive Associatia—Eastern Railroads, Eastern Rail- road Presidénts Conferenge, Carl Byoir & Associates, Ine., and The Pennsylv ania Railroad Company the sum of Two - Hundred Twenty-five Thousand Dollars ($225,000. 00), plus . ‘a reasonable attorney’ s fee to be hereafter fixed, ‘together with costs. , t; ‘ Harry M. Hull, | _#" . Clerk, By /s/ Daniel J. Mencoboni, - ee ~ Deputy Clerk. ¢ By direction ef John J. Siriea, Judge. ae / ere eae Sia a Y ¥ ~ I4la 2% 7° % } aa United States District Court for the District of Columbia. Riss & Company, Inc., : e ‘ as roy ne Plaintiff, Civil Action. No. 4056-54. Association of American ‘Railroads No. 4056-54 et al., . 2 ait f . se Defendants: 7 ORDER. Plaintiff having filed a Motion for Allowance of Attor- heys’ Fees.to Plaintiff on February 13, gy pursuant to Section + of the Clayton Act: (15 U. S.C. A: § 15) and the: ‘judgment entered in this cause on Nov eke 8. 1960, and defendants (2) The Association of W estern Railways, (3) Traffie Executive Association—Eastern Railroads, (4) East- ern Railroad Presidents ¢ ‘onference, (5) Carl Byoir & Asso- ciates, Inc., and (66)-The Pennsy Ivania Railroad Company having filed memoranda with respect thereto on December 6, 1960, March 1, 1961, and March 10, 1961, and the Court having: considered said. motion and the memoranda with respect thereto and the oral argument. of March 17, 1961, on said motion, it is this 2@th day of March, 1961. Ordered that defendants (2) The Association of Western Railways, (3) Traffic Executive Association—Kastern Rail- |” roads, (4) Eastern Railroad Presiderits Conference, (5) Carl Byoir & Associates, Inc., and (66) The Pennsylvania Railroad Company pay to plaintiff. as an ‘Attorneys’ Fee the sum of One Hundred Twelve Thousand Five Hundred — » ($112,500.00)-Dollars. : John J. Sirica, United States District Judge. & — 142a -—: ? > United States Court ‘of Appeals For the District of Columbia Circuit. No. 16206. Association of Western Railways, et ‘al.,: Appellants, ' . > ‘ v. . » Riss & Company, Inc., Appellee. No. 16255. The Ate hisen, Topeka & Santa Fe Railway Company, et al., Appellants, + . v. , . Riss & Company, ‘Inc., Appellee. No. 16376.. 00 Association of Western Railways, - Traffic Executive Association-Eastern Railroads, ' Eastern Railroad Presidents Conference, | Carl Byoir and Associates, Inc., , and the } ‘Pennsylvania Railroad Company, _ Appellants, . og W “Riss & Company, Inc., Appellee. Appeals from the United States District Court . for the District of Columbia. OPINION BELOW. Decided January 25, 1962. . Mr. Stuart 8. Ball, with whom Mr. Richard J. Flynn was on the brief, for appellant Association of Western Railways _in Nos. 16206, 16376, and appellant -The Atchison, Topeka 9 -- I45a — -& Santa Fe Railw ay ( ompany and certain other appalant: in No. 16255. Mr. — H. McGlothlin, with who Messrs. Thaddeus — Holt and William H. Greer, Jr., were on the brief, for appellant Traffic Executive Association and certain other appellants in Nos. 16206, 16376, and appellant Pennsylvania Railroad Company in No. 16255. Mr. A. Alvis Layne, with whom Mr. Lester M. Bridge: man was on the brief, for appellee. @ ‘Before Wilbur K. Miller, Chief Judge, and Edgerton _ and Bastian, Circuit Judges. ; Digercon, Circuit Judge: Appellee Riss & Company, Ine. (Riss), an interstate trucker, sued 85 railroads, four rail- road associations, and a public relations firm, charging them with conspiracy to monopolize and ‘eliminate Riss’s “competition in transportation of ,ammunition and explo- sives for the United States, in alleged violation of §§ 1 and - 2 of the Sherman Act. The p)emitiff asked damages and injunctive relief. Many defendants were dismissed before trial. Two paid Riss $15,000 each for a’ covenant not to | sue. Riss’s claim against the remaining 28 defendants was tried on about 12). days during a ten-month period. ‘The court gave the jury a ‘*Form ofWerdict’’ on which the name of each defendant was listed: and was followed by the words ‘‘For Plaintiff’’ and also the words ‘*For - Defendant’. At the end of the form were these words: . “If your verdict is in favor of the plaintiff against two or more of the defendants, what is the total amount of your verdict? eas : .."’.. After deliberating some ten days, the jury returned a verdict on-this form. It found ‘‘For’’ the plaintiff against five of the defendants, namely, ‘The Pennsylvania Railroad Company, three railroad: asso- - ¢iations, and the public relations firm; **For'’ each of the — l4ta — - other 23 defendants; and “‘$ None’ as the ‘total amount of your verdict”’ ; After giving a supplemental charge which our view of the case makes it ‘unnecessary to consider, theocourt said: **The Court does not believe this is a legal verdict. [am going to ask you to return to your jury room and deliberate further. I will not accept this verdiet:’’ The jury retired again. Slightly more than an hour later it brought in an altered verdict. on the same form it had used before. After “°° thie word **None’* had been crossed out and ‘*75,000"" had been written in. The court denied the fite defendants’ motions for judgment m o. v., granted costs against them, denied costs to the 23 other defendants, refused to reduce the new verdict by the $30,000 which two former defendants had paid Riss before trial, trebled the damages under § ee of the Clayton Act, and entered judgment against the five - defendants. The court.also entered judgment allowing Riss an attorney’s fee of $112,500. The five defendants appeal in Nos. 16206 and 16376. Both the complaint and the evidence were largely though . not entirely concerned- with—efforts of the defendants to influence legislative and administrative action. Tht prin- ‘cipal qnéstion of law was whether the Sherman Act -con- - demns such efforts when’ they are jointly made for the purpose of destroying or restricting competition. . The District Court answered this question in the affirmative and instructed the jury accordingly, relying expressly on the similar case of Noerr Motor Freight, Inc., v. Eastern | Railroad Presidents Conference which. had ‘recently been decided by the District Court for the Kastern District of’ _ Pennsylvania and affirmed, over the dissent of Chief Judge Biggs, by the Court of Appeals for the Third Circuit. 155 F. Supp. 768, 273 F. 2d 218. Four months after our District Court decided ‘the present case, the Supreme Court reversed Noerr. Eastern Railroad a — 145a — v ‘Presidents Conference v. Noerr Motor Freight, Inc., 30 U.S. 127. A group of truckérs and their trade associa- tion had sued under 4 4 of the Clayton Act for treble dam- ages and injunctive relief against a group of railroads, a ‘railfoad association, and a’ public relations firm, charging | them with conspiring to restrain trade in and to monopolize transportation of freight in aHeged violation of $1 and 2 of the Sherman Act. “The Supreme Court held, contrary to the District Court's instructions to the jury in the present case, that joint solicitation of government action with respect to the passage or enforcement of laws does not violate the Sherman Act, even if its purpose is to de-— stroy competition and even if deceitful: propaganda is used.” Irrespective’ of any other evidence in the present case, therefore, and irrespective -of any other error, the District Court's judgments cannot stand. We must reverse-the judgments for another reason also. . The District Court erred in failing to accept the verdict which, the jury first returned. ‘That verdict plainly meant that five of the defendants had conspired and plainly nant, also, that the conspiracy’ had not damaged Riss. Section 4 of the Clayton Act allows treble damages, and costs in- cluding an attorney's fee,to a person who-is‘injured-inr his business or property by reason of anything forbidden in the antitrust laws’’. 15 U.S.C: 415. The ‘‘gist of the action isnot merely the unlawful conspiracy . . . but is damage to the individual! plaintiff resulting proximately from the acts of the defendant which constitute.a violation ofthe law.’’ Glenn Goal Co. v. Dickinson Fuel Co, -72 F. 2d 885, 887. Keogh v. Chicago & N. W. Ry., 260 U. 8.9156; Hunter Douglas Corp. v. Lando Products, Inc., 235 F. 2d 631. The finding that the conspiracy had not damaged the plaintiff was therefore a finding that the plaintiff had not proved its claim. The defendants were therefore en- titled-to judgment. m —Idia-- ¢ Appellee contends that the jury's first verdict was_am- biguous, and that the trial court was therefore within its- diseretion in refusing togreceive the verdict and in re- turning the case to the jury: with supplemental instrue- tions. The conclusion may follow from the premise, but the premise is erroneous. We find no ambiguity in the verdict. Its formal oddity is unimportant. ° ‘In several cases, a verdict for the plaintiff which affirmatively states that it is for no amount of damages, has been held to war- rant the entry of a judgment for the defendant.’"') In Poydock v. Adams Transfer & Storage Co., a negligence suit, the jury found a yerdivt in favor of the plaintiff *4n «the sum of none . . .."" The court said: *‘ Despite its rather . peculiar form, the verdict can be interpreted only as a find- ing ik favor of the defendant."") 51 F. Supp. 374.) Inv Schwe> v. Nordstrom, 1:36 Kan. 497, 27 P. 2d 242, an action for assault, the jury returned a verdict for. the plaintiff. and found ‘‘no damages actual or punitive . . ..°" The court said: ‘It is clear that the jury found that none of the - parties claiming damages had made out a case in which he was entitled to recover damages."’ 27 P. 2d at 243, In Chapin v. Foege, 296 Ill. App. 96, 15 N. FE. 2d 943, a negli- gence suit, the jury’s verdict was ‘‘guilfy™, damages ‘‘no dollars’’. The court entered judgment denying recovery. In Koyal Indemnity Co. v. Island Lake Township, 177 Minn. 408, 225 N. W. 291, the v ‘erdict was: **We . . . find for the plaintiff and assess damage in the sum of none dollars.’’. The appellate court said: ‘It had the same effect as, and was in fact though not in form, a verdict for defendant.’ 225 N. W. at 292. In Daniels v. Celeste, 30:3 Mass. 148, 21 N. E. 2d, after a jury returned-a verdiet-for the plaintiff with damages in ‘‘the sum of No Dollars and No Cents”’, the court directed the jury to return a verdict for the de- * ; | —- “19 ALR +2d.1334 (1936). The cases have not been unani- mous. 116 ALR 834 (1938). 49 ALR 2d 1331 (1950). | = a . ~ Ee 9 7a 2 fendant. (‘. Washington Market C0. v saat 19 App. D. ©. 12, 2s The jury's original verdict was end is valid. The altera- tion which resulted from the court’s erroneous rejection of the verdict is not valid. Judgmenfs for all the‘ de- fendants should have been entered at the trial and should be entered now. 62 Stat. 963 (1948), 28 U.S. (., § 2106 {1958). Dextone Co. v. Building Trader Council, «0 F. 2d 47. x 2 a Railroad defendants counterclaimed figainst Riss for alleged violations of the Sherman Act by conspiring with other truckers to fix rates and thereby divert. from. the counterclaimants profitable traffic “that they would other- wise have carried. No. 16255 is the railroads’ appeal from a summary judgment for Riss on this counterclaim. We agree, generally, in’ essential respects, with the district judge ’s S views regarding the counterclaim. Riss & Com- pany v. Association of American Railroads, 19%) F. Supp. ‘10. The evidence proffered by the counterclaimants does - , hot appear to us to raise an issue of material fact in sup-- __ port of their claim that they were injured by the atleged illegal rates. | _ Nos. 16206 ond 162376 reversed. No. 16255 affirmed. . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0300%3A3. Public record. Not legal advice.