# Appendix — Federal Trade Commission v. Texaco Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0015%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 393 U.S. 223 ## Text Dilieect ” Direst P Direct Joseph C. Arey: J ;. Direct : . Redirect : Harold A. Gehrke: , ‘Volume mR SRP SOMERSET HSE RESEEHEHESEEES HE SEEESEEEE ESS eeee See Meee RE RO EEE E REESE SESH EE HESEEEETESESEEEEE EET ESS SPSS SE HEE EEE EEEEEEEEEEHE SES ES ETE SES ESSE ERE EES meee eee E SHEEP ESE SHEHESESEEEESEEEEEEEEESE ES MEOS POR UUPEECEESSOCOSCSOSOOOCOCSOS CECE) "JA 695 SERS ee HHH HE EES EMESESET EEE SESE ESE SESE ESS SPORE H SHEE HEH ESTE EH ESE EES SES ES ESTE T EE EEEEEE 8. Jim Abernethy: gi «(i IRR ee NE silssonpstectieniescelinicions Siasniniiaiibcbisingn a 2 Direct ......... in iesonpale i casbitiasninnaie %y ee Direct - SAO AMES ee? Te CUES Paras Nowe I hac Se ted aE EL lS OOS x mete | Theodore H. Shift, a oe ET ET CF: y 3 t er Liswiatoan Tie, 908 - re os JA 743, JA 765 - Cross .......:........ paiaeencaceasees JA 747, JA 766 I re JA 748 IEE iets siuccupinincdinpalinioniaiiacooiiatacnedss JA 749 a a JA 764 Direot ee siscshnieintsicasionsiidaeR iets JA 767 ERRAER aN “SEN Nas een ene NSN Cae -.. JA 776 1? ¢ Volumes I and IT | William E. McDaniel? SORE an nenareninc ce eae MII -.. .snnswnsannevonemamniteh oclucouses eat Direct iaeiatihaseiinsinsudssieilice cdc Direct Nici ioe esas ere ae PEE PEP. a JA ah _ Volume II ‘PAGE > Ted Olsen: | a SERN ees en. Sy JA 884 REISS Pea REO Te JA 893 f EES AERO SONNE Ua ED JA 897 MIE iain eacesnsSvcchieildimersunacsbae la JA 899 _ Al Scoville: RRS NRC ES eee JA 899 _____ CERRO eR Sete JA 904 Percy L: Kanago: be Sa ___ IMRAN (0p HTS eR JA 909 Ic isisiectstrnescnapeicnesaiete Teel JA 932 Mannie O. Hansen: MND: sicccinttis cecerclceinanstesctoneicactiieeiads JA 913 : SE I Re Sieh JA 936 | an ae Pe JA 938 Lawrence B. Taylor: | ae Mee ; Direct = wee ceeeeeesseepeceaeerewns WEsscoapee} ~ JA 924 Sos. AMI Shpncrvstonecn anny Sane oonesibitti dines ~ JA 939 © © James §. Zaloudek : ar oe ; : ‘ re: Direct ........ anieteinapiiaecds h beets nein JA 942 b | a PAGE W. E. Smith | R EEN OER RS. SP ee 11! 38 Ere JA 1063 SIE rere REN REE EDTA- hsco ate JA 1070 - Redirect ....:...”......... Laeoie ‘..J3A1074, JA 1076 BID ccccnccidacstnspsieceustyat eee meas, JA 1075 John Morgan Hussong: . | Direct. ..:...:... ARTEMIS 8 5 his Be JA 1076 RIND: > seiAipsslstvcsasiaipicaiiens pe eA IE JA 1080 Elmer W. Johnson | af RCE I ek JA 1081 | RI sis sicarnsinserstescaseaauuactiee JA 1084 Lee Barton | ; Nena re ro : JA 1085 ; RRR ere eet oT JA 1092 v » x John W. Green MII wsinccernsacsshashaiieisoucs stale cman JA 1093 DE sckissihlibie cinickegce 4 nie a ~ JA 1097 K. B. Roberts \ at 6 IE ee Sa scnesactaditanes JA 1099 : NITE ~ ssscxssovescconecsterpscancssosusbachieienlock| ‘JA 1113 * William E. Childress: ” 2a Gn eS ee JA 1123 RIAs aN eae hs Ree isos - JA 1128 | Beagan Ferguson, Jr.: ae Hee nee .. JA 1128 * PAGE C. T. Fitts: : | AF SEI: siisindincntnineinicinbhlsisinaiin MRAM co JA 1137 ____ ERE ago RP A JA 1142 Donald E. La Garde: EE ATR. © HRD JA 1146 SE DRA EOR OER Ts JA 1148 Keller F. Melton: | | ad 2 RRRRSEL Saat seer art Ae JA 1153 Harvey G. Talley> 3 ooo ee | FRI. osiepset ne scncorintnnascackaten titaiitbog dace JA 1160 . @oess ...........: sdiecvaleiibiitidaiaidaiicuniuiapeiniagis JA 1168 | | SE tenniitiennatisdnitiaisaid JA 1172, JA 1175 © i wcebhilsibibseces Qa Mane George R. Boyd: ; © sexl icicles besonmesddblithibehensts JA 1176 Cross ereee Frecee Feseecsceeeceseroosoedt sees aatadaal JA 1479 OD isnsssccsnnsssisinessssesientesintbcsaseibcst JA. 1183 John D. Hulme SRE ae chad JA 1184 NI aaa seconesoseninsvveeceresvennspesscstentnotic JA 1189 Sam B. Riddick: ‘| , i Be _ Direct ........ binanneiiaaatancensailtll FELON: See JA 1192 William Russell Bridges: : 3 j ‘i eae prossbeccosccones enaecees cesaenssscbocece JA 1194 See et, See JA 1198: : Redirect iniaeiieti FRC SETS To Oe JA 1202 Earl Martin Gause: : wee ae 5 eS PEACE: RETR TCO ODS a OT MOE JA 1202 ee Volume It PAGE Richard Elias Tidwell: oe sa | SR TE erie a JA 1208 ee JA 1215 John D. Scott: Directs ....ece.: Sop SCAONE eS CO JA 1218 Ug Sits sscnscstionntonoossnsiiessiistblncoedonoes JA 1230 SETTER NN a EDS aD PD JA 1236 FOOD sscossecsecsvssesseninesonseverbeieustasine JA 1287 — rae ° | | ig AE emcmennere JA 1287 EN Ae SN EC RO Sr et JA 1241 Guy R. Sinclair: Sr ek ae RECT JA 1243 Claude M. Chambers: | | i See sicininsntitsliiccnne ls Mae H. Arpin Koehler: a bats | ne EERE ear eeioenees JA 1249 . OID acrecccccevcns ate ace ee bhisés JA 1263 Abe'Goldstein: 7 : 4 Direct ,cocssceoococcooocooocs teeresereeseeeee epeséoerceens JA 1266 A eae ee aa wedbbtes - JA 1268 EE Nee | 0.8 RN JA 1271 . ES JA 1272 William B. Price: SIE -secicctisistnnbingeaiesspiipeaiigesst IO bs a, JA 1272 MD Ki: isicoveccticineneasonesenvopncd BAAD emece JA 1276 32% Folmeé..11 ; | PAGE C.H. Avery: | Se = NEE TS : JA 1277 b.°% ‘ Cross. Peidkecsmmidasnbiatderciddniaccnia Secdcccece JA 1281 4 I ipesnncsnnonsnipsisansibicnabeinineiegnie JA 1281 Garland T. Duke: Sc Re Ae ae JA 1282 i _ ce OORSRAT OED JA 1284 WEIN scivssecinctecsseienisseinadsiasensesedsteddleeial JA 1285 ' Guy Walter Scott: : | ees : a RR Seeeeenere Babbtielbesese JA 1286 Ne JA 1292 FTES Zee wa O JA 1351 I - Sac asiicssihisilicineehstete eeiieemiineibaiiiea ee JA 1360 SE sorsisetfobndireaiandidibinbiel JA 1366, JA 1369 I siotstiensscigiteiininnconehdiaiagacuamti JA 1367 Edward J. Midden: Sent ° Direct ........ ssinbiseiuseendiiitniianmmaimall cc JA. 1369 Cross obeccccceeioppeoscccesocsscosecesoessoapesgesescees JA 1378 PIII. ciinictscabsesnstamssosteniinincnspnandtotaasibaaes JA 1383 RINT -- caicnsnsenssfaccnentinapcuncisisaptiabsiiesdadbits JA 1384 H. E. Smiley IN ieicealiviiepiienilconncsetapihietlapaegitidlathiseati lias JA 1385 ANS ee | ee JA 1394 |, a Te TST! § Ta JA 1404 Pa 7 . PAGE ‘William V. Brooks: bear | . I aitiisia adil aasdlateiealsdalninnciabsi NG Anni JA 1405 Norman L. Jacobson: | © ge IMNOOE seseoseecezesicvecnessessosnsecosee JA 1470 Ross Rittenhouse: . ; ei: °° ee © a SA 1485 ‘XVII f° ‘ Volume IT ih, eee er Page Stanton Swank: gt sD fat MITE siisitnsisiceicsiienitiiniieaciaieialal jecosteonree TA 1500 { MID scsi csussonsnichinbiieialeammiul . JA 15075.) ' Herbert Bolte: ee mh / EET accent posessebecvocees Oi ABIO sg NEED. accennsatishdiilisciecesss aaa Msies JA.1515 Joseph Novak, Jr: =. y uf eT eS See h 7JA 1519 Cross. ........ slilhunaisigensseniciecdinssMimiaMadicuie JA 1526 Lawrence Starr: i r MERSIN SS Ty JA 1528 ESSER SR ae eee JA 1538 Redirect ............ Movontncvssectsistbditidilccecs JA 1541 s a Fred Opocensky ’ ; A tic ite I 28 JA 1542 ID sesistiibdpuesivepsesenmeininennnaeatilailiian Moses. JA 1548 Roger Wilson, Jr.: | : © FE. \visosniiescianpueniesiivsietasseenil decors JA 1551 SIIID, sepsevesetivsinebinsennshbtmnecemnslilae Roads JA 1555 I SAEs eA ecies JA: 1559 Paul B. Hicks: ) | TRS ESAT vada JA 1560, JA 2167 D: ccxrssiihdiditnnatns sesssseeernesseee DA 109, JA 2173 - _ Redirect ............ soipenhnutnitiiandinaae « JA 2177 John Nemec: mf | EO svirionertbilliclars: Mil Me i . XVIII Volume IT e John A..McGuire: nee JA 1884 ms JA 1892 | I i. sass seehnpbsicateanesenmeslttih JA 1895 Max Edward Mandell | EE Ee eT oe” ON JA 1896 No st cnselkenwenpeinnanssons JA 1901 Redirect OTE Tee a EN ST OT JA 1903 A. James De Ambra: > | | : nC Cross ...... EES Rae ND SE JA 1911 Pierce N. Johnston: n ae | EE ener a JA 1915 Ce, eet e+ ee JA 1920 ; Volume. HI PAGE Burney Barker: . Weitk Direct. ........ ic paeien werumme . | SEES RO Co JAX 475 NN | , xLvt Volume V | tn PAGE ee REO Ue (JAX 485 a a ae JAX 486 BGI seciciccoonimsen aT NR ei JAX 487 Os alae JAX 488 OO asi sinnsisnspinsinnirrnrercncomesaniilaioerornstt JAX 489 a a Os JAX 490 ROLLE SLT JAX 491 A Ce Ne ERI won JAX 492 asim coneianneiitilee JAX 493 I sicsssccsnensccvspnnnernnanntnonsorrvsonenoncoessoose’ en JAX 494 ee aN RN ee PINT JAX 495 Ee a eae aN OM Te an EN MPI rer JAX 496 1s acaligpieabiealasbabaindaniooapmieialenanuniia JAX 497 le ee TT Aa OER JAX 498 ee ART OITA AOE JAX 499 ch. SRETEE OP Ree maT NE JAX 500 CY. |); Tid puleineidiadhiedinianeabiaabioiandaniii JAX 501 IIIT. = i innicnsiudiduisbiiiadisitiineapensiiennmniinnint JAX 502 Ce ne cet sto JAX 503 Te A NERDS JAK 504 O62... ane JAX 505 Dh AAO OEE. A EOE ne JAX 506 Se ae ai JAX 507 a 9 RR SEA aE OLD JAX 508 a C ZLVIII VolumeVo . ~‘PAGE 0 ERE ae OE JAX 535 ee eee Sea ARN aaaiRessihaessaiisis JAX 536 en a JAX 537 canteens JAX 538 RENEE NSS eC . JAX 539 “PE A SNe a SE acai as JAX 540 cc wintttinambe JAX 541 cannons JAX 542 ae ES . ° itor ~! 2a JA 8 etre - + + | Complaint * Norion” ° - Notice is 5 Mert given you, The B. F, Goodrich Coni- pany and The Texas Company, corporations, ‘respondents herein, that,the 21st day of March, A D., 1956, at 10-0’clock. is hereby fixed as the time and Federal Trade Commission Office, Washington, D. C., as the place when and where a hearing. will bé had before a hearing examiner of the Fed- -eral-Trade. Commission, on the chargés set Aorth. in this . , ~ complaint, gt which time and place you will have the right under said Act: to appear and show. cause why an order _ should not be enterd requiring you té cease and desist from the violatiqns of law charged i in this complaint. . “You are notified that the opportunity is afforded- you : to file ‘with the Commission an answer to this complaint on or before the thirtieth | (30th) day after service of it upon you. Such answer shall contain a concise statement of: the facts constituting the ground of defense and a specific ad- mission, deffial or explanation of each fact alleged in the - complaint, or, if respondents are. without knowl€dge there- of, a statement to that effect. } At ‘respondents -elect not to contest’ the’ aligations of a5 fact set forth in the complaint, the answer shall consist of a statement that respondents admit all material allegations ‘ ‘to be true. Such an answer. shall constitute a waiver pf - hearing as to facts.so alleged, and an initial decision a ° .. ‘ taining appropriate findings and conclusions and ani appro-'— | priate order disposing of the proceeding shall be isg the hearing examiner. In such answer, responderts may, however, reserve the right to submit proposed findings and. conclusions and the right to appeal under Section 3.22 of, the Commission’s: Bales of Practice for Adjudicative Pro- JA 9° ot Complaint Tf any respondent elects to oanitiods a cont order, it . s shall be done in accordance with Section 3.25 of the Com- ‘mission’s Rules of Practice. _. Failure to file answer within tte time above’ provided and failure to appear at the time and place fixed for (8) hearing shall be deemed. to authorizé a hearing examiner . without further notice to respondents, to find the facts to be as alleged in the complaint, to conduct. hearing to deter- . mine the form of order, and, thereafter, té enter an initial . decision containing such findings and order. peice is -" +2 4 ¢ , Is Wrrvess Wueneor, the Federal Trade Comuiniesion ee | has caused this, its complaint, to be signed by its: Secretary, and its official: seal to ‘be hereto affixed, at Washington, D. C., this 11th day of January, 1956. By the Commission. - Order Designating Hearing Examiner Pte. (January 1, 1956) (9) | a ONITED STATES. OF AMERICA of Barone FupenaL TRADE Commission of | 7. | "Pursuant to authority vested in the Federal Trade Com- mission and delegated to the Director, Hearing Exeminers, iz Ie Ondenap that Bari J. ‘Kolb, a hearing examiner of this Commission, be, and he hereby i is, designated and ap- pointed to take testimony and receive evidence in this‘pro- eoeding atid to pean all cacg duties authorized by law. Evererr F. ‘Havonarr, ee Hearing Examiners. ee Bo veyns carried out by ‘Texsé, is an efficient method wa * Answer of Respondent The Texas Company s ger ela yee cael | -DNITED STATES OF AMERICA: i ” [Same Tre] 4 cs nie Respondent Te Texas Company for its answer to the ~ complaint in the above entitled proceeding states: ~ ya. | VL f i | “ihe sales commission plan, alleged in*the complaint.to . Goodrich Company (heremafter referred to as ‘‘Good- : a ; , II. ai: SS, acy . : 1: Answering the allegations of paragraph numbered -. One of the complaint: | “mre : * Tt admits the allegations thereof. ¢ » ~~ @ r | | Tk 12 Sea a | Answer wf. Reapondent The Teaas Company = * : te 2. dnweetne the allegations of ‘paragraph numbered Two of the complaint: a BS. ' Itis without knowlédge as to the allegations thereof ex- ts -cept that it admits that Goodrich is engaged in the manv- | za, ‘facture and sale ofa number ‘of rubber and associated \° products including tires and inner’ tubes, and is engaged in the purchase, resale and distribution of Batteries, automo- tive’ parts and certain accessories and it admits that the term TBA is applied in the trade to products such‘as tires,- — tabes,. sagas and certain -other. nocessories. , 3, Knwearing. the Seiten of paragraph numbered 2% -. - Three of the complaint : . : It admits ‘the allegations of the first sentence thereof. It: denies the allegations of the second sentence except that it . admits that directly, or through its sub#idiaries ar affili- =, + ‘ated Companies, it has engaged in substantially all branches of the Spetro letim, industry: It 3 the allegations of the third. ae Ey It admits thé ¢ ions of the fourth sen- tence except that it is without knowledge as to thée-allega- tion that sales are made to many types of customers, the - : meaning of which phrase-is not clear to Texas.. It admits the allegations of the fifth sentence. It denies the allega* tions of the sixth’ sentence except that it admits that Texas acts.as’a sales representative in promoting the sale of TBA - | products of certain aeipgenen, — that Goodrich i is one of - | such companies ag : : de : : oe ' 4. Answering the allegations of ace aumbered : Four of the complaint: = * Tt admits that-it ships odes petréidain: proddots from “some but not-all states in which y are produged or reé- . fined or. stored to purchasers or 21) dealers located in some other’ states of the ee States and the District, of & eae oc tai | Answer “ Respoibont The. Tesas Compiaiy a JE dni tit hp o ann so from the-states. in which such products site es in other states of the United States and. the: Distrint.of 0o- « lumbia and it is without knowledge as to the allegations, of . paid jn so far as they refer to Goodrivh’ end: its method o carrying on its business. Respondent isnotvre- - , riser the legal conclusions as to the termé‘‘eom- , >, but it denies that any facta allepd in paragrd@. | nuimblted Four confer an jurisdiction on. the: Federal: ° Trade Commission with r pect to any. conduct. by, Texas in connection with. PBA prodyftts. eee. ,, ae ‘Kisteig the allegations of paras murbered ‘ Five of the complaint: - It denies: the allegations thereof et that it ndmite. promoting the sale of TBA products which are sold imcom- petition with others. Respondent is not required to answer the legal conclusions ii said paragraph, numbered seine cs oe coast Suk tes aors Rosy 6 Answering the allegations of paragraph num : - Six of the complaint: ‘i ais FOS oY be is without knowledge as to the allegations ‘stated in the first sentence thereof except it admits that. Gvedyich. sells TBA products to service stations, It admits the: alls: - - gations of the second and. third sentences. theteof aa that it is without knowledge as, to the allegation that.serv-" -- ’ joe stations constitute adMMncreasingly important market, ‘the meaning of which phrase is not clear to Texas. “It denies the allegations of the , fourth sehtence Deiat except that it admits that its: petroleum products yre mark- ted by approximately-38,000 service station dealers.” Ht ad- - Perelacherernmi geen ene vine ates tae NON ts oh oP egut, B 4 JA 14 Answer of Respondent The Teaas Company : 4 cc products, but iti is without knowledge as to the allegation that-a substantial ‘(22) number of service stations do so, * as the meaning of the vena § eubstantial number’? is not.. — ‘to Texas. RE, “ Se snouts ‘the aHegations of paragraph ‘numbered dares of the complaint : Tt denies the allegations of the first ihred: simtaniios thereof. (the last of which is in the second subparagraph) — except that it admits that it has separate contracts. with ° ‘Goodrich and Firestone -whereby each of said companies separately agrees to pay to Texas certain commissions on specified net sales of TBA products of Goodrich and Fire- stone respectively’ i in consideration of the assistance and _ services to bamgndered ‘by the Texas‘sales organization in _ corinection. with’ promoting the sale: respectively of Good- rich and Firestone-TRA products. But for:the exact terms . and conditions of said contracts, ‘Texas seeks leave to refer to the actual: written. agreements between the parties in- ‘volved.’ The-allegations of the second and third sentences |. jm'sd‘far as they rekite to Firestone are irrelevant in this puleietiod, te xibieh Ripsrtone i220 SPEAY:: °° ¥t Getiies the allegations of the fourth sentence ‘thereof except that it admits that there is a large number of serv- ice stations ‘and distributors which sell principally ‘its pe- troleum products, and that it urges and recommends, in ' proper and lawful ways, the pugchiase of either or both of — _, @oodrich’and Frestone TBA products by service stations end distributors handling Texaco products. ‘The ‘allegations the;fou Sn ia in 80 far thas espe relate to Firestone. — a ocx Rovatz, ] Hannm, Korcen & CasKEY By Kannere C: Roya. -Preveniox W. P. Lonenzex * Pavt Keene Attorneys for Tur Purses CoMPANY * ¢ ® ; > ae Answer of Respondent The B. F. ere April 16, 1956) ‘UNITED STATES OF AMERICA Barcus Fapmnat Taape Coicscmenpa: (27). (Sass Trriz] =-_ | Heopuuleul, ‘The B, F. Goodrich Company, for its an- swer to the complaint herein : L Admits each allegation of Paragraph Onn. : 2. Admits ih allegation of Paragraph Two, sisi denies that it owns “and r, Renee more than 500 retail oe. lets. : 7 3. Admits tak tycas' ta tke ld est ‘tor of petroleum products and that Texas renders valuable sales assistance in promoting the sale by Goodrich of cer - tain TBA products, but denies that ‘Texas acts for Good-- rich in the manner alleged in the complaint; denies knowl- ' edge or ‘information sufficient: to form a belief as to each other allegation of Parageeph Tiree.’ 4, Admits each éMegation of cia aie? Four, except denies knowledge or information sufficient to form a belief | - as to the allegations concerning Texas, se ed (By 5. Deities each gati of Parner Pv cept admits ‘that at present and for years years in competitth WHEN Vinses, wela"acsd pradties is sale vf TBA products 'in Corhinierce, wid that Texas renders ‘valu able sales assistance ia promoting the sale ry Go ae ee Othe ES 8 2 - game. 2 Answer of Respondent The ome F. ‘Goodeich Company 6. Admits the first two cabtaniion of ‘Dabegresh Six; admits that service stations constitute a large and iurpor- tant market for TBA products and that.a number of serv- ice stations to whom Texas sells its petroleum products also sell TBA products. Denies kiiowledge or information suf- ficient to. form a belief as. to each other rapes of said paragraph. Lo / / i ; 4. Denies each allegation of Paragraph Seven, except admits that it sells TRA products in commerce and that it has entered into a contract with Texas under which Texas furnishes valuable sales assistance in promoting 6 Bale by Goodrich of pr ra TBA products to service stations and distributors selling ‘Texas petroleum products, in return for certain commissions on such sales and refers to said agreement for the terms thereof; admits that there are a large number of serviée stations and distributors which sell mainly Texas petroleum products, and that Texas urges and recommends, in various proper and legal ways, . the purchase and resale of Goodrich TBA products, among other, similar products of competitors, by said service sta- ‘tions and. distributors ; admits that said service stations and | (29) distributors do not receive any. part.of the com- - ‘ mission paid by Goodrich to Texas; admits that. said serv- ice stations and distributors are operated as independently owned business. enterprises; and except denies knowledge | or information sufficient ‘to form a belief.as to agreements: between Texas and Firestone, .. , ‘, 8, ‘Denies panne allegation of ie ees Bros ‘except admits that it has eeeiren) valuable assistance from Texas ficient to form & hey the’ ‘St mm 3 = (a scabs | oui of Respondent The ‘B. BP: Goodrich Company 9 Deniés each allegation of Paragraph Nora, excopt admits that it has entered into: substautially similar sales commission agreements with five other oil: companies (two of them. since 1952), and that it has received valuable sales — assistance from said oil sempanies in promoting the sale of Goodrich TBA products, and that the figures in the last sen- _ tence.of said paragraph are ‘substantially accuraté with re- noah some senha 1946 'end fever oil — in 1952. ie ee 10. Denies each allegatipn of Disenieaiih Tex, shiagh denies knowledge or information sufficient to form a belief as to the last sentence thereof. (30) 11. Denies each abegation of Paragraph ELEven. 12. Denies ehch allegation of Paragraph TWELVE. Shon A SzranaTs Dagrense a poe, that. the Goodrich’ TBA program, , including . the sales commission arrangements with oil companies, in ’ purpose and in practice, is a lawful method of competition ‘which benefits consumers, oil station operators and dis- tributors, and others interested in the manufacture and dis- - tribution of TBA products. (2) Alleges that each and every paragraph of the com- plaint, either taken singly or with other paragraphs as a whole, fails to state a cause of action under Section 5 of the Fogel Trade Commission Act. _ 2 | ne Denies that it has violated the provisions. of .. tion 5 of the Federal Trade Commission Act; and. alleges . that if said statute prohibits the acts and practices referred - 1 i eae JA 22 (Pe ie ly Answer of Respondent The B. F: Goodrich Company aa * to im the complaint it violstogArticlos I) Ii and THK of, und’ _» the Fifth and Tenth Amendments to, the Constitation of. the United States, and is therefore void. (4) Duties that this proseding is inthe ble interest. Waueanross, respondent, The B. F. Goodrich Company, peage That sho ocmeplaiat herein. be, Gipeplendl. sens ‘Dated: April 16, 1956 | 4 rs Wares & Cass pitas By Cnn 0 lksoni /. ; -. By Epass Bazton . PO 14 Wall Street. er Onset. sa New York 5, N. Y. aie .» . Attorneys for Respondent, . _ The B. F. Goodrich Company -@ * * a : a Bobert ‘T. Secrest - bch hi "Sigurd Anderson 4 Edwerd T.Pait = big bade | [Sane ‘Trrum) : oe This matter having been heard on an interlocutory ap- peal, filed by counsel in support of the. cémplaint, from | rulings ef the hearing examiner excluding from the record. certain. evidence relating to the extent and effect of the be commission agreement between the respondent, The, Texas : Company (hereinafter referred to.as Texas), and The Fire- ~ stone Tire and Rubber Company (hereinafter referred. to as Firestone), arid other evidence relating to the existence, extent apd operation: of alleged commission agreements be- - tween the respondent, The B; F. Goodrich Company (here- inafter referred to as Goodrich), and five oil companies other than Texas ; and. Ht nppestinig- Ghat tho. bonis: Por: the ‘ratings paapiained Ue of was that: evidence of the relationships between Texas — end Firestone.and between Goodrich and oil. companies: _. other than Texas have no bearing on the i in this pro- _ ceeding, which proceeding is concerned: only with tf .con- 4 A ial We Pes JA 26 ‘Order Sustaining Interlocutory on 7 tractual nshidiashiin between Texas and Goodrich, ani the ~ acts and practices engaged in pursuant thereto; and _It further appearing, however,: that the allegations of . the complaint are not limited to the existence of atid activi- - ties under the commission’ contract between respondents - ‘Texas and Goodrich, but relate also to a general (86) - course of competitive action by each of. said respondents, . . under which respondent ‘Texas is charged with having un- lawfully entered igto and acted tinder contracts with both _ Goodrich and Fire}tone providing for the receipt by it of commissions on the sales of all tires, batteries and acces- sories sold by GSodrich and Fireston€ to service stations controlled by Texas, and respondent Goodrich is alleged’to _ have-unlawfully entered into and acted under similar -con- tracts with six oil companies, including ‘Texas, providing for the payment by, it. to sai oil companies of commissions _ ¢-on the. sales of all tires, batteries and accessories sold by Goodrich ‘to service stations. controlled by said oil com- os . panies; and / . The Commission being of the! opinion that the eviduaise ae rejected by the hearing examiner, apparently was relevant and material to the direct issues thus raised by the com- | plaint and that, if so, it should have been received in i sup ‘Port of said issue’: Bore In'Is Onverep that the appeal of, counsel in ‘support of : the complaint be, and ,it hereby i is, sustained. wT a Ir Is Fenenin Clones ‘that the jhearing écemaiter be, ee and he hereby is, directed to receive into the. record diach ~ relevant; material and reliable evidence as has been dr may - be offered concerning the details, operation. and competi- - | ' tive. effects of the -override commisston eontract between: | respon“ent Texas and Firestone and of the alleged. similar commission — ‘between es Goodrich: and | JA : | ay : Ordet Sustaining Interlocutory Appeal, eer ag | each of the five oil companies other than saapnidint Texas. Sugh evidence relating to the contract between Texas and Firestone should be admitted as against respondent Texas unconditionally and as agaight respondent Goodrich sub- - " ject to a subsequent motion. t#' strike upon a proper show-_ Ing; and the evidence relating to the alleged contracts be- ~.. tween Goodrich and the five oil companies other than Texas . should be admitted as against respondent. Goodrich uncon- _ ditionally and as against Pree carey massage to the - game type of motion. * ee By the Commission. (ig a Bonmer M. Paxnsen, - : 2 Issued: November 28,1956 | : 7 7 . Bo. JA 26. Exception of “eect The Texas Company yreregl 5 — . (87) UNITED STATES. OF AMERICA. Bzrore e Pepenat TRave Oosnatsezom (ain Teal To THe HonoraBLe THE Cosriaminonrtien ‘ob THE FEDERAL TRape barca! ‘The respondent, The Texas Company, bx its attorneys, réspectfally excepts to. the Commission’s Oxpgr Susrarn- ING InTERLOCUTORY APPEAL, issued November 28, 1956. Said _ exception is on the.ground that the said order is violative "both of the spirit and the letter of the Administrative Pro- «cedure Act, that it deprives respondent of due process of law itt violation of Amendment V of the Constitution of the . United States, and is on the legal and constitutional grounds set forth m respondents ’s ANSWERING Brier IN OPPOSITION to InTERLOCUTORY.APPEAL OF CounsEL Supportine THE Com- PLAINT FROM Ruiines or Heagtne Examiner REJEcTING ’ Certain Evmence filed with the:Commission on November: 8, (88) 1956 and on all other legal and constitutional er that are applicable. Respectfully submitted, Manton J. Eptey, Jr. Dwicxt, Roya, Haneis, Kogcen & Caskey By Kenneth C. Royall Frederick W. P. Lorenzen Paul Kerins bus | This 7th day of December, 1956. TA Exception. of Respondent The B. F. Goodrich Lomnny ; , (December 12,1956) . . . (89) Om UNITED STATES OF AMERICA Buronn FepepaL Taupe Comnassion: [Same Tr] > a To THE HonoRaBLE THE Commissioners OF | Tre FeperaL TRADE Commission: Habe The attorneys for the réspondent, The B. F. Goodrich Company, hereby respectfully-advige the Federal Trade Commission that. said respondent duly takes exception to the Commission’s Order Sustaining Interlocutory Appeal, issued November 28, 1956, ordering the hearing examiner to receive certain evidence herein and requests that this exception be made part of the record in this proceeding. The grounds for this exception are those. stated in the answering briefs of said respondent and the other respond- ent herein, The Texas Company, filed in opposition to the - - interlocutory. appeal from rulings of the hearing examiner — excluding said- evidence, and the further grounds (90). that said Order denies to said respondent due process of law in violation of the Fifth Amendment to the Constitu- ‘tion of the United States; that said Order is contrary to the intendment and requirements of the Administrative. Procedure Act and the statutes establishing and regulating ‘the Cemmission, as well as the Commission’s own rules ; and'on the grounds of all other applicable legal and con- stitutional i issues raised by y said Order. Respectfully submitted, Wars & Cass . Orison 8. Marden Edgar E. Barton | Macdonald Flinn 14 Wall Street —=s_— _ New York 5, New York. | Dated: December 12, 1956 ; : ; ’ * aot JAB Motion of Radpeeadete The Wéuse Company . (December 31, 1956) , (92) ; . iets aN UNITED STATES OF AMERICA Berort Fevers Trave Commission pac Trrtz]} . The Horiorable Earl J: Kolb, Hearing esaaintes Comes Now respondent, The Texas Company, by its at- torneys, and shows the following : 1. Counsel, in support of the ecunplaint (hereinafter . referred. to as ‘‘Complainant”’) pursuant to stipulation, has given to this respondent the names of certain witnesses who are to, testify in support of the allegations of the com- | plaint, at hearings to be held in Chicago, Illinois; Omaha, Nebraska; Dallas, Texas; and Atlanta, agian beginning eo" the — day of Sammaty, 1957. 2. Upon. information and belief poarener jes com- municated with persons, other than those disclosed to the ‘respondent, as possible prospective witnesses in this pro- ‘ceeding, including a large number of dealers, companies and distributors eeqcer: the etn of The Texas Com- pany. Be: 3. If, as now appears, ctmntieintiat'ke endeavor- pport the allegations of the complaint by intro- ducing elo vidence. purporting to show by sample the conse- quencés arising from the alleged unlawful practices of the respondent, then, m order properly to weigh such ‘‘sam- ple”, it is necessary to know the total number of persons — with whom complainant has communicated prior to picking the — It i8 also necessary to know the basis upon —. ’ “¢ = JA 29 “Motion of Respondent The Texas Company -which .-¢ witnesses were selected. ‘The soihlanasicettiina with all persons contacted and their replies will throw light - * ppon the method employed to choose the witnesses. * Waenerong, respondent prays. ‘that the. coitighaizant: be” directed to: give respondent, prior to January 14, 1957, " separately each of the following: the name, address - and employer of each pergon with whom complainant, or his agents, has communicated as possible prospective witnesses in support of the complaint, together with a statement of the substance of such communications to each person and ' from each person or-a copy of such. communications if they were in writing. Respectfully submitted, Maniox J. Heat, JR. Diviiiens: Rovatt, Hazegis, Koozr, & Cisxer. ’ By Kenneth C. Royall Frederick W. P. Lorenzen ’ Paul Kerins Attorneys for The Texas Company - Dated: December 31,.1956. JA 30 Psd Pia dikes the Co laint in Opposition to the Motion of December 1, 1956, Filed o on | Behalf of Respondent, The Texas Company (J anuary 8, 1957 ) : (170) a Ke =e UNITED STATES OF AMERICA | Berore FEepenat TRaDE Commission — [Same Tire] Come ow counsel ‘ieee the sini’ in opposi- tion to the motion of respondent, The Texas Bare ad and state as. follows: 1. Respondent seeks confidential information which - only the Commission can reveal.” (Secs. 1.133 and 1.134, Rules of Practice.) 2. Respondent has failed ‘é show any good or valid reason why the lack of the information it seeks will hamper it in its defense, nor has respondent made any showing as to how such information that is not introduced in the record _ will in any way prejudice it or er it of due — of law. ! Wuenerorz, counsel supporting the ren pray that respondent’s motion be denied. _ _ Respectfully submitted, mi Perer J. Dus Peter J. Dias, Wuitus J. Bovn, Jn. - _. Wilham J. Boyd, Jr. | Counsel ae the - senaaa : January 8, 1957. Jaa Sadi Denying Motion. by. Respondent The Texes Company for Disclosure of Names, “Addresses and - Employers of Parties Interviewed But Not Called. as Witnesses | | (January 9, 1957) (173) Se ie rae - | UNITED STATES OF AMERICA | Bzrore FenzraL Trape Commission gee pee aha: eros = ~~ mn a [Same Trruz] re This prockeding is before: the hearing examiner upon motion of The Texas Company for an order directing the ‘attorneys in support of the complaint to furnish to the respondent the name, address and employer of each person interviewed during the course of the investigation of this matter,. together with communieations to and from such persons and copies of such communications if in writing. It appears to the examiner that the attorneys in support of =| the complaint have, in fact; submitted to the attorney for said respondent the names and addresses of the witnesses -who were to be called to testify at the proposed series of hearings to be held at Chicago, Hlinois, Omaha, Nebraska, Dallas Texas, and Atlanta, Georgia, and that the present | request by said respondent 1 in its motion is without merit. _ Ir 1 Tueneronz Oxperen that respondent ’s motion for disclosure of names, addresses and employers of parties interviewed but not called as witnesses be, and the same is AP denied. y Kann J. Kors Earl.J. Kolb; Hearing Examiner. - January 9,1957. 0 |? 7 a JA 32 . Motion to Strike of Rawpiadent The Texas Company (November 8, 1957) (260) 3 } UNITED STATES OF AMERICA Berpee THE FEDERAL Traps Comission [Same ‘Treuz] “ To rm Hononasux Fant J. mae, Hearre oe Sars Coane Now, respondent; The Texas Company, by its attorneys, Marion J. Epley, Jr., and Dwight, Royall, Harris, Koegel & Caskey, and to the call that the record herein, for the purposes of submission and determination, shall not contain evidence which is not material and relevant to the issues or is ‘otherwise inadmissible ‘and evidence which is superfluous and unduly enlarges the record, moves that by . appropriate order of the Hearing Examiner, and for the reasons and. on the grounds set forth in the Specification attached ‘hereto, the evidence, heretofore received and iden- tified in the Specifontion attached hereto, be atricken from the record.. es ) Respectfully ae am Manion J: Eptey, Jz. - Marion J: Epley Dwicut, Royart, Hanns, Korcen & Ossxey By Kenneth Royall _ hiner for. The Texas Company Bo, or November 7, 1957. JA 3 Motion to Strike of Beopindent The Texas Company — (261) , WZ Specrrication or Eviwence To Be SrRicKEN . © L é Hearsay. Testimony ne ‘ The testimony cited in this portion of the Specification should be stricken as hearsay. ° : For purposes of clarity, we shall consider the hearsay testimony in the following sas | A. . Single hearsay. B. Single my a ineorporating a conclusion or C.. Double hearsay. . ie _D. Double hearsay incorporating ‘a conclusion or _. Opinion, | ris A. Single Hearsay j -. We shall use the symbol “Ny? to indicate Sinveny testimony where there has been no identification either of the declarant or of the time or ne of the hearsay state- ment. ' In many instances the ‘‘single hearsay’”’ statement con- § tains additional evidentiary defects that require it to be stricken, and we shall pty ce 4 note such defects as they occur, era | (262) An example: of the eo of “single it es | whick, we submit, should be sroreres bo is that of a i Tr. 959, lines 17-19. “\ | JA 34 | Motion to Strike a of Respondent The Texas Company | ‘Yes, I talked to the operators and ey told (N) me that they couldn’t buy from me. They said we have to handle Goodrich. You know how it is. 99@ . The following iihties Poe? be stricken: LW itness : Transcript Line | 1..(N). Chanenson § Tr.832* _—_ Lines 16-18. Tr. 833° - ‘*No, you can’t * ** flipped.” ie line 26 to line 2. ‘Yes, but ; Z i : ; bad * do.’’ (268) 7 debt 2.°(N) Olsen Tr. 868° * Lines 17, 21-22. . | vate ‘Because he said * * * again.”’ 3. (N) . Olsen” Tr.871* . Lines 11-15. ‘ “Frankly, he just * © © gir.” r * We do not know for what purpose the evidence is offered or a|- mitted. If it is merely to show what a dealer had said, the hearsay statement is entirely unrelated to The Texas Company and is, there- “i - fore, immaterial, irrelevant and prejudicial. If the statement is offered 24 in an attempt to prove something the respondent is supposed to have bins or’said to a dealer, then it constitutes double hearsay and for ~- that additional reason should be stricken. In most instances the - double hearsay reference does not idetify anyone in The Texas Com- pany to whom the action or statement is attributed ; so that there is a double lack of identification.. We also consider this testimony in terms _ of double hearsay under our division D, infra. ‘i’ — Rb gpa nga my cage remedy done or said to a dealer, then it constitutes double hearsay and for — that ‘additional reason’ should be stricken. In most instances the . double hearsay reference does not identify anyone in The Texas Com- ~ pany to whom the action or statement is attributed ; so that there is a double lack of identification. We also consider this testimony in terms. of double hearsay under our division C, infra. ’ Dn, SMO Os Motion to Strike of Respondent The Texas Company ° , Witness = Transcript Line fue ..(N) Dwyer Tr.924°* Lines 12-15... if e. Ta ' “he ‘dealer told iad 7 ; months.’? , = ae 5. (N) Dwyer’ ‘Tr. 924** Line 23 to! Tr, 925, line “ f _ “And Bob told me * * *\Com- pany.” . (N) . Dwyer. Tr.925° Lines 2426.° . @ y. : : b.?.> ; “‘Andy’s Texaco * * * Tire.”’ Z .(N) Shiff | Tr.981°. Lines 24. wg ef 7 . **Petersen tells me? * else.” ‘ ; ich . . * We do not know for what purpose the evidence j or.ad- ~. . mitted. If it is merely to show what a dealer had , the hearsay ement is entirely unrelated to The Texas Company and is, there- fore, immaterial, irrelevant and prejudicial. If the statement is offered in an attempt to prove,something the respondent is supposed,to have » done or said to a dealer, then it constitutes. double hearsay and for ** We do not know for what purpose the evidence is offered or_ad- mitted. If it is merely to show what a déaler had said, the hearsay fore, immaterial, irrelevant and prejudicial. If the statement is offered in an attempt-to prove something the respondent is supposed to have done or said to a’ dealer, then it constitutes double hearsay and for : pan : ’ double lack of identification. We also consider this testimony in terms - of doubfé hearsay under our division C, infra, Pa 4 JA .36 --* Motion to Strike of Respondent The Texas Company, Witness - Transcript Line » Shift Tr. 931° 9. (N)_ Shiff Tr. 936* 10. (N) Jennings Tr. 953° 11. (N) Jennings Tr. 956" * 12. (N) Jennings Tr. 959* 13. (N) Seidenglanz - - Tr. 1196* (265) tae" ae : 14. (N) Renken. 2] r, 1943° in : . abe ° ‘Tr, 1244* al eee ~ Lines 7-8. . \ ‘the told me * * * him. L Lines — 2 . **he-teld me * * * done.”’ : “the kept telling me * eo 80.” ~ Tr. 1244, line 3. _* We do not:know for what purpose the evidence is offered or tad- mitted. if it is merely to show what a dealer had ‘said, the hearsay - _ ‘ Statement is entirely unrelated ‘to The Texas Company-and is, there-. :. fore, immaterial, irrelevant and prejudicial, If the statement is offered — in an attempt to prove something the respondent is supposed to have done or said to a dealer, then it constitutes: double hearsay and ‘for Lines 12-16. gas ‘‘Al Feller buys * ° *: Pres-— ‘ tone.’’ : wie a 99 e Lines 17.19, 26 to Tr. 957, line ORS ae : ‘He told.me * * * in.” Mee aS ee eee “Yes, I talked * * * is.” | " Lines 15-17.- } “He told me * * * down.” Lines 17-19. ‘By Firestone’’, and . “By ¥ * * representative.’’ that. additional reason«should be stricken. In inost-instances the = = | double ‘hearsay reference does not identify anyone in The Texas Com- peny to whom the action; or statement is attributed; so that there is a~ double.lack of identification. We also consider:this testimony interms = " of double Hearsay under our division’D, infra. ~ 4 vhs yy We Q aw Ct ees Motion to Strike of Respondent The Texas Company Witness Transcript -Line er iy se 45,.(N) Benken® ‘Tr. 1244* Lines 23-26. = - e oo ‘‘He said * * * room.”? | 16. (N) - Olsen * "Tr. 1928 Lines 14-16, | eye ie i ‘e 4 he . ‘she said ees there.”’ 95. =": Hulme’: Tr. 1931". Lines 9-11. es eo : +"... 6h told me ® ® ® tires.” a6: “ “Hulme. © ‘r.1933 Lines: 24-25.. | ; in sae ‘the told me * * * me.’? ***. (267). | ee a ae 27. -Hulme © Tr.1936% Line 22 to Tr. 1937, line 3. 3 | ee ain ‘‘He said * * * you:”? oon . 28.. (N) Bridges "> Mr, 1944* ‘Lines 7-10. pee ‘‘and he said * * * people.’’ 29. (N) Bridges ‘Tr. 1945* Lines 12-15. SS aes ‘tHe said * * *”? - 30. (N) Bridges ‘Pr, 1946* Lines 5-6. . aes : | , ‘Sand he also said eee , Fire- stone.’’ * We do not know for what purpose the evidence is sind or ad-, mitted. if it is merely to show what a dealer had said, the hearsay statement is entirely unrelated to The Texas Company and i is, there- fore, immaterial, itrelevant and prejudicial. If the statement is offered in an attempt to. prove something the respondent is supposed to have done or said to a dealer, then it constitutes double hearsay and for that additional reason should be stricken. In most instances the double hearsay reference does not identify anyone in The Texas Com- to whom the action or statement is attributed ; so that there.is a double lack of ideritification. We also consider. this testimony ft in terms of double hearsay under our division D, infra. +08 This hearsay was elicited in cross examination directed to the : pated evidence admitted in the direct over ‘objection. Since it particulafized matter admitted over objection, it should be eG i Se CaN teather. ast \ » : 2 JA 39 Motion to Strike of Respondent The Texas Company Witness Transcript Line : 31. (N) Bridges Tr.1957*. Lines 15-16. . ' aes! . “The substance is * * * Qood- - e . rich.”? eee ' 3 82. (N) Bridges Tr.1957* Isines 22-24. Side . ee } * “That he was * * * busgi- nees,"?:288 whici - (268). ee | 33. (N) Sinclair ' ‘Tr. 2036 Lines 11-12. Roe | a4 ' “He told me * * * Goodrich.’? 34. (N) Sinclair «Tr. 2088" Line 12. gta. | 4 7 ‘tHe said that *¢ 10% 35. (N) Chambers Tr. 2049* Lines 24-25, poet ‘sHe just said * * * to.” 36: (N) Price ~ Tr.2082 «Lines 7-17, | j ee cae 4 “‘they told me * * * tires.’? ° 37. (N) Price ‘Tr. 2086* Line 25 to Tr. 2087, line 1. , / “That they would * * * han-- » a me ihe * We do not know for what purpose the evidence is offered or ad- mitfo. If it is merely to show what a dealer had said, the hearsay statement is entirely unrelated to The Texas Company and is, there- fore, immaterial, irrelevant.and prejudicial. If the statement is offered ~~ in an attempt to prove something the respondent)is supposed to have done or.said to a dealer, then it constitutes dadble hearsay and for that additional reason should be stricken. In most instances the double hearsay reference does not identify anyone in The Texas Com- . pany to whom the action or statement is attributed ; so that there is a double lack of identification. We also consider this testimony in terms _ @f double hearsay under our division D, infra, | . *** This hearsay was elicited in cross examination directed to the . y evidence admitted in the direct over objection. Since it merely particularized matter admitted over objection, it should be stricken along ‘with the. original matter. ; JA 40 Motion to Strike of Respondent The Texas Company . . Witness Transcript Line. 41. $8." Scott © Tr.2108* Lines 6-7. Pal. 2aae - "That he is * * * Goodrich.” 39, Scott — Tr.2109* Line 17. : ; ; . “Tt wouldn’t fF eo 40.° °° Scott - ~‘Tr.2111* Lines 9-15. y ve iF ‘*His words * * * station.’’ Scott Tr.2117* Lines 19-21. - ‘Oftentimes * * * stock.’’ * We do not: know fon what purpose the evidence is ‘heed « or ad- mitted. If it is ‘merely to. show what a dealer had said, the hearsay statement is, entirely urirelated to The Texas Company and is, there- fore, immaterial, irrelevant and prejudicial. ‘If the statement is offered in an attempt to prove something the respondent i is supposed to have done or said to a dealer, ther it constitutes double hearsay and for that additional reason should \be stricken. In most. instances the double hearsay reference does not identify anyone in The Texas Com- pany to whoni-the action or statement is attributed’; so that there is a double lack of identification. We also corisider this testimony in terms - . Of double hearsay under our division D, Pale: Jaa oe Motion to Strike of Riaiiateidi The T eas iimgiany ; (269) ws Siete | ) B. Single Hearsay Incorporating Conclusion or Opinion — In certain instances the testimony of a witness clearly indicates he was stating a conclusion or opinion based upon a hearsay statement made to him by someone not subject ; to-cross-examination, and—in many instances—by some-. oné who was not even. identified. With respect to those in- stances of hearsay stahitesate where either the declarant or - the time or place is not identified, we shall nate the same by the use of the symbol ‘‘(N)”’. : ) .” An example of this type of testimony which should be ' Stricken, is that of Hansen, Tr. 1397, lines 22-24: z “No specific reason outside of the’ fact that (N) he felt that he was obligated to buy the bulk of his purchases through Firestone.””* : | ; a Oe hee The following evidence. should be stricken: . ' Witness, Transcript Lime 1. (N) Richmond. = Tr.655*- Lines 20-24. ‘‘When you make * * * it.’ * We do not know for what putpose the evidence is offered or admitted. If-it is merely the conclusion of the witness as to how another person felt, it should be stricken. If it is offered or admitted — in an attempt to show—by inference—what the dealer had said, the. = hearsay statement is entirely unrelated to The Texas Company and a" is, therefore, immaterial, irrelevant and prejudicial. If the rong ‘statement is offered or admitted in an attempt to prove s , the respondent is supposed to have done or said to a dealer, it constitutes double hearsay and for that’ additional reason should be stricken. In most instances the double hearsay. reference does not. ‘identify anyone in The Texas Company to whom the action or state ment is attributed ; so that there is a double lack. of identification, We ‘ also considef this testimony in terms of double hearsay under our division D,.infra. : } ~ see ~ JA 42 Motion to Strike of Respondent The Texas Company ed aaa Transcript Line Siem ."-. ae Tr.688* Lines.13-19. © oo, See ‘He said * * * Goodrich.” 3. (N) Arey’ Tr. 690° Lines 12-13. | sie ‘“‘The gist of * * * tires.’’ (270) °° Mert Sam . 4. (N) Gehrke 'r.706 ~—_ Line 19. _ | : , ééT would say * @ 89) 5. (N) Edelson Tr.741° Lined. _ ae ‘*No, we are * * *”? 6. (N) Edelson Tr.741 Lines 11-12, 18. . ic . ‘We are able * * * that.’’ 7. (N) Chanenson Tr. 835 _—Lines 3-6, 19. | | “it would tend * * * policy.’’ 8. (N) Chanenson ‘Tr. 836* Line 25 to Tr. 837, line 4. : ' **He told me * * * prospect.’’ 9, (N) Shiff - 'Tr.929* Lines 15-16. eo . “’ ‘*Because they tell me * * * to.” " * We do not know for what purpose the evidence is offered or admitted.' If it is merely the conclusion of the witness as to how another person felt, it should be stricken. If it is offered or admitted in an attempt to show—by inference—what ‘the dealer had said, the hearsay ‘statement is entirely unrelated to The Texas Company and is, therefore, immaterial, irrelevant and prejudicial. If the hearsay | statement is offered or admitted in an attempt to prove something that _ the respondent is supposed to have done or said to a’dealer, then it constitutes double hearsay and for that additional reasom should be stricken. In most instances the double hearsay: reference dogs not - . identify anyone in'The Texas Comipany to whom the action or state- ment is attributed ; so that there is a double lack of identification, “We also consider this testimony in terms of double hearsay under our - division D, infra...” Bh, : ¢ ; ; JA 43. : »” Motion to Strike of Respondent The Texas Company e | Witness | Transcript Line es 10. (N) Hansen - ‘Tr.1397 JLimes222% © |.) -*. . *No specific reason * * * Fire- 5 __stone.”? ee } 11. (N) Taylor ~ Tr.1412* Lines18-19. . + - te : ig ‘the couldn’t * * * TBA.” 12, (N) - Taylor * Tr.1413 Lines 1213.°. | ft a4 ‘He told me *.* * eould.’? 3 13, (N) McCann Tr. 1584 Limes 21-23. & ‘But the gist * * * batteries.”” (271) _* : | 14. (N) Zimmerman Tr. 1642* Lines 7-10. cae Cee : “TI don’t know * * * handles.’’ 15. (N) Snapka , ‘Tr. 1655® “Line 25 to Tr. 1656,*line 1. ' . ‘if he bought * * * room.’’ 16. Bridges —-‘Tr.1945* - Lines 12-15, ‘“He said * * * them.” _ We do not know for what purpose the evidence is offered or admitted.’ If it is merely the conclusion of the witness as to how another person felt, it should be'stricken. If it is offered or admitted in an attempt to show—by inference—what the dealer had said, the hearsay statement is entirely unrelated to The Texas Company and. is, therefore, immaterial, irrelevant and prejudicial. If the hearsay statement is offered or admitted in an attempt to something that the’ respondent is supposed to have done or said to 4 dealer, then it constitutes double hearsay and for ‘that additional reason should be stricken. In most instances the double hearsay reference does not identify anyone in The Texas Company to whom the action or state- _ ment is attributed ; so that there is a double lack of identification. We - . also consider this testimony in terms of double hearsay under our division D, infra. Pe sii tn6 ees G cA 46 Motion to Strike of: Respondent The Texas Company (272) © | C. Double Hearsay The testimony cited in this division of the Specification - should:be stricken as ‘‘dduble hearsay’’—that i is, testimony by a witness of a hearsay statement which in turn contains hearsay. In short, the double hearsay statement was not made 4 the witness but was reported to the witness by the declarant the witness purports to quote. Thus it is impos- sible by cross-examination to test the truth of the double hearsay statement. A statement of this type which should - ‘be stricken is the following (Dwyer, Tr. 924, lines 11-14): ‘‘The dealer told me that Mr. Suffert told him he had to handle either Firestone or Goodrich products or he would cancel his lease, and his Tease was can- celled for nine months.’’* The witness did not identify the declarant or the place of the hearsay statement nor was there an identification of the time or place of the double hearsay reference. (318) oe tp D. Double H earsay Incorporating a Gestion or Opinion ; eo In certain instances there was offered or ‘admitted a double hearsay statement wherein it is apparent the de- clarant, referred to by the witness, was stating a conclu- * We do not know for what purpose the evidence is offered or * admitted.’ If the hearsay statement is offered in an attempt to prove. © something the respondent has done or said to a dealer, then it consti- tutes double hearsay and should be stricken: If it is merely to show what a dealer has said, the hearsay statement is‘ entirely' unrelated to _ The Texas Company and, therefore, immaterial, irrelevant and preju- _ dicial. We also consider this testimony in terms of “single hearsay” under our division A, supra. Pls : JA 4 Motion to Strike of Respondent The Texas + Conigid| sion or opinion based upon what someone else had told ‘him. : The person who had told the declarant the matter in ques- tion was not, of course, subject to cross-examination, and in many instances was not. even identified. In other in- og stances the declarant, who was also. not subject to cross-. * examination, was not even identified. We -shall use the symbol ‘‘(N)’’ to indicate those instances where there has } been no identification either of the declarant or of the time or place of the hearsay statement, and the symbol ‘‘(DN)”’ sia to indicate those instances where'the person referred to by ‘the declarant—on which the double hearsay statement, is | based—has not been ‘identified or there hasbeen no iden- © tification of the time or r places of such double hearsay state- ment. should be stricken is that of Price, Tr. 2082, line 8-11: “eee They said The Texas Company told (N) them they would invest around $30,000 in build- (DN) jing them a master station, but they were'éx- * pected to handle all Texas products plus Fire>, stone. *¢ bed 99 The following evidence should be stricken: — An example of this type of ‘‘double hearsay’’ which JA 46 Motion to Strike of Respondent The Texas Company 5: (N). Edelson ‘Tr.803. Lines “6-11. ““When Texaco : Witness Transcript Line’ 1. (N) Bichmond' Tr.654 - Lines 22-23. “‘it was where a ; (DN) | customer * * * us.’’ (274) . ' me 2 ely 2. (N) Richmond: . Tr.655** Lines 2224; Tr. 656; line 6. (DN) at ‘and still are told * * * on.’’ 3. (DN) Arey: _—§ Tr. 688°* Lines 13-15, lines 18-19. ae : | -said they * * * Goodrich.’” 4 (N). Arey =—- Tr. 690°*. Limes 12-13. ‘‘The gist of his 1. | Sar conversation * * * tires.’’ (DN) | 4, 7 ‘opens * * * request. P 6. (N) . Chanenson Tr. 831 Lines 1-2. ‘‘In connection with (DN): ; .* _*9@ ° carry. 9 7. (N) Chanenson Tr. 832° - Lines 16-18. ‘And he said * * * (DN) act 4: 5, 8 (N) Chanenson Tr. 835** - Lines 3-6. “it would tend °° ° (DN) buying.’’ A * We do not know for what purpose the evidence is offered or admitted. If the hearsay statement is offered in an attempt to prove the respondent is supposed to have done or said to a dealer, then: it constitutes hearsay and should. be stricken. If it is merely to ' show what a dealer has said, the hearsay statement is entirely unre- lated to The Texas Company, and is therefore immaterial, irrelevant and prejudicial. We are also considering this testimony in terms of hearsa " under our division A, supra. ; _ ** We do not know for what purpose the evidence i offered or admitted. If the y statement is offered in an att to prove the t is supposed to have done or said to a dealer, hearsay and should be.stricken. If it is merely to then it show what dealer has said, the hearsay statement is entirely unre- to lated to The Texas Company, and is therefore immaterial, irrelevant and prejudicial. We are also considering this testimony in terms of single | Sepraiies saclay supra. | JA aT * Motion to Strike of Respondent The Texas Company | Witness . '- Transcript. Line | | 9. (N)- Chanenson’ Tr. 835** Line 19. ‘‘Adherénce to.*)* #7” (DN) ig ie ht: | Pi 10. (N) | Chanenson Tr. 836** Lines 25 to Tr. 837, line:4...“He (DN) | _ told me * * * prospect.?%, ; (275) Taree 3 v “s his # 11, (N)-, Olsen ~. Tr. 868* Lines 17, 21-22. ‘Because ‘he (DN) : : : said oe again.’’ *s, 42. (N) Olsen Tr. 871° Lines 11-12, ‘Frankly, he jus (DN) _ *** Company.” ~ bi 13. (N) Dwyer Tr.924° — Line 25-Tr. 925, line 1. ‘“He said _ (DN) : , 7° * oa sit 14. (N) _ Dwyer °° Tr.925* Lines 24-26. ‘‘Andy’s Texaco ; (DN) | told me * * * Tire,’’ 15. (N) Shiff — Tr.929°* Lines 15-16. ‘Because they tell (DN) me * * * to,” : 16. (N) . Shiff _ ‘Tr.931° = Lines 2-4. “Peterson tells me (DN) | ae *.* © olge,”? * We do not know for what purpose the evidence is offered-or admitted: If the hearsay stat is offered in an attempt-to prove something the respondent is supposed to have done or said to a dealer, then it constitutes hearsay and should be stricken. If it is merely to show what a dealer has said, the hearsay statenient is entirely unre- lated to The Texas Company, and is therefore immaterial, irrelevant and prejudicial. We are also considering this.testimony in terms of “single hearsay” under our division A, supra. S -**.We do not know for what the. evidence is offered or _ admitted. If the hearsay statement is offered in an attempt to prove something the resporident is supposed to have done or said to a dealer, ' then it constitutes hearsay and should be stricken. If it is merely to: show what a dealer has said, the hearsay statement is entirely unre- lated to The Texas Company,’and is therefore immaterial, irrelevant and prejudicial. We are also considering this testimony in terms of “single hearsay” under our division B, supra. ; v. : i JS.%§ ' o° s ‘ f A J . . : e JA 48 | ¢ : Motion to Strike of Respondent The Texas Company fe Witness 3 Transcript 0 YM eg na @y) Shiff Tr.931* - Lines 15-16. “and said that eer Se pts ios . °° * Prestem.”” .:*-. : Ea 18: (N) ay t. eo Tr. 936" Lines 7-8. ‘‘and he told ie i “ (DN) » ef: ten | | him.’’ , ~ 19. (N) ‘Sisiiaa -’tf'r, 953" - - Lines 6-7. ‘‘and he told Bates a: (DN) © Set eee - done.’’ 20. (N) - Jennings Tr. ‘all Lines 17-19. ‘‘and they told me Ce | ioe talon Pane ce a. 21, (N) "Seidenglans Tr. 1196* Lines. 15-17. “He told me * ** (DN) cat ; em Ao ON leroy. i oy ee ee (22 :(N): Benken © Tr. 1243* Lines 17-19. ‘‘he kept telling G- (DN), Pak i ne Se 23. @). " Benken’ Tr1244* Lines 23-26, ‘‘He said * * * SOMBRE Te sa cal > eae 2 24, (N)- * Qlsen ~ Tr, 1323*.> Lines-21-22; 26 to Tr. 1308 line Aca er ad a CRE ‘the- explained ° & rods Sa gl a eee _ pany.” * 25. (Ny. "Hansen a. 1397°* Lines 23-25. ‘che felt ** * Wire- eS (DN) ° Seis aime stone.” - es : | Aine We do not know foe what; purpose ihe. liam is. ‘offered or admitted, If. the hearsay statement is offered in an attempt to prove . es ‘something the respohdent is supposed to have done or ‘said to.a dealer, then. it constitutes hearsay and: should: be'stricken. If it is merely to show. what: a dealer‘has said, ‘the heatsay statement is entirely unre- ‘fated ‘te The Texas Company, and:is therefore immaterial, irrelevant - id prejudicial. We are. also considering. this scuamere bt in terms of “singie ¢ hearsay” under our division A, supra. , $e ** We-do not know for what purpose the idinns | is offered’ or ot admitted. ‘If the ‘hearsay statement is offered-in an attempt to prove | the respondent is supposed to lave done or said to'a dealer, . _> ‘then it constitutes hearsay and should be stricken. If it is merely to .- -show what a.dealer has said, the hearsay statement is entirely unre-_ ' rere: one oe Coneioes Smeal, irrelevant _ and prejudicial.. Lochagcle eng agl mge cr a = under.our division B, pre... 2 . "e, ee “ . cf . ‘as I understand (DN) - °** people.” — Sabena, We do not*know for what purpose iid evidence ‘is offered or admitted. If the hearsay statement is offered in an attempt to prove something the respondent is s _ then it constitutes hearsay and should be stricken. If it is merely to . show what a dealef has said, the hearsay statement is entirely unre- mort to The Texas’ Company, and is ‘therefore immaterial, irrelevant rejudicial.. We are also considering this testimony in terms of single hearsay” ander our division A, supra. Ae , “Vane JonNedenineer to have done or said to a dealer, statement was elicited tn cross-examination di- - pected ‘to: hearsay evidence admitted over objection and was for the. purpose Kae with the original stele ‘of j -such am matter: - It should be: stricken A ma .: | Witness ‘JA SI | Motion to Strike of Respondent The Texas Company : Transcript Line . 40. 41, (N) Bridges (DN) 32 (N) Bridges (DN) —_ ~ 42. 43. 6 (N). Bridges (DN) - (N) Bridges (DN) ( N) Sinclair — (DN) (N) ° Sinclair (DN) (N) - Chambers (DN) : - * We do not know for w admitted. If the hearsay something the respondent then it constitutes h earsay and show what a dealer has said, aoe Tr. 1946* a Tr, 1957° Tr. 1957* ‘Tr. 2036* Tr. 2038* Tr. 2049° 2 hat purpose the evidence is offered or statement is offered in an attenipt to prove is supposed to have done or said to a dealer, should be stricken: If it is merely to the hearsay statement is entirely unre-. Lines 12-15. “He said he * * * them.’’ are. i o Lines 4-5. ‘‘and he also said © * * * Firestone.’’ Lines 15-16. -‘‘The substance is [a oe 1 Goodrich.’’*** : Linés 22-24. ‘That he was * * * business.’’*** oe q Lines 11-12. ‘the told me * * * Goodrich.’’ Line 12. He said that * eer Lines 24-25. ‘He just said * * * to.? th di anak lated to The Texas Company, and is therefore immaterial, irrelevant and prefudicial. We are also consi dering this testimony in terms of , “single hearsay” under our division A, supra. é ** W# do not: know for what purpose the evidence is offered or admitted. . If the hearsay something the respondent “then it constitutes hear statement is offered in an attempt to prove is supposed to have done or said to a dealer, say and should be stricken. If it is merely to show what a dealer has said, the hearsay statement is ‘entirely unre- _ lated to The Texas Company, and prejudicial. We are also ‘and is therefore immaterial, irrelevant considering this testimony in terms of “single hearsay” under our division B, supra... *** The hearsay statement .was elicited in cross-examination di- rected to hearsay eviden ce admitted over objection and’ was for the purpose of patticularizing such hearsay matter. . It should be stricken t wee - along with the original hearsay. . JA 52 ‘ ae Bearsay.’ under our divigion A, ware o. — . cf P ' Motion to Strike of Bespondent The Texas Company | : | Witness Transcript . Line - r 47. (N) Price © ‘Tr.2082 Lines 8-11. ‘They said* * * (DN) 7 Firestone.’’ | i 48. (N) Price Tr. 2086* Line. 25-to Tr. 2087, line 1. (DN) |. | + =, ° ‘That they would * * * handle.’’ 49, (N) + Scott Tr. 2108* | Lines 6-7. That he i is not.* * * | (DN) ° | .. Goodri 50. (DN) . Scott Tr.2109* Line 17. ae wouldn rn sien | ‘ * @ @)») » 51. (DN) Scott Tr.2111* Lines 9-15. ‘‘His words * * * 3 station.”’ - §2. (N) Scott — Tr.2117* Lines,19-21. “Often timés — (DN) stock.’’ a. - 9? * We do not know tie wefiat purpose the "evidence is offered or _ admitted. If the hearsay statement is. offered in an attempt. fo prove something the respondent is stipposed to have done or said to a dealer, then it constitutes hearsay and should be stricken. If it is merely to show what a dealer has said, the hearsay statement is entirely ‘unre- lated to The Texas. Company, and. is therefore immaterial, irrelevant and prejudicial. Weare also considering ‘this testimony in terms of é nw 4 a JA 53. 6 Motion to. Strike of Respondent The Texas Comiamy. * (279), Conclusions and mae In many instances the testimony: of a witness was no more than a conclusion or opinion and should, therefore, be stricken.. An example of this type of testimony: is.that/of \Wdelson, Tr. 741, line 5: **No, we are not able*to sell tubes only*under cover.” The following evidence should be stricken : aes. Witness Transcript o Line 1, 1. Richmond Tr.653 Lines 8-9, ‘‘it was easier * * * , time.”” ey O 2. > _ Tr.655 — Lines 7-11. ‘Ini the last * * © é oe oneal? ae ogy 3. Gehrke Tr.706 Lines 19, 26 to Tr. 707, line 2 } ‘*I would say * * * you.’” 4, Gehrke Tr.707 — Lines: 16-17. ‘‘Before my time a . x *** No.” » : of ve > 5. ~Gehrke Tr.708 Line 9. “I do.” - 6. Edelson Tr.739 Lines 11-12. “You see * * * sta- ose ' tion.’’ Bet ty | “7, Edelson Tr.740° Lines 3, 6. ‘ ‘At the present siti + | j little.?’. . 8. Edelson Tr. 740 Lines 13, 16, 20-21. Mion, + os | - eT Ls 9. Edelson Tr. 740, Line 24. “We | are limited ‘ eo» 10. . Tr. 741. Lime 5. ‘“‘No, we are “ot able’ Edelson | © 09), 9 fu . - Motion to Strike of Respondent The Texas bisa | Wioness Transcript _ Line | ‘11, Edelson § Tr.741 Limes 11-12, 18. ‘“We are ‘able , of * © © that.’ _ (280) 7 12. Edelson . Tr.741 Limes 23-24. ‘*We are limited eee basis. ie | 13, Edelson Tr.746 Lines 10-11. ‘“We ate not|* * *- _.. Business.” - | 14. Edelson Tr.747 Line 2. “Very much more** *”? 15. ~ Edelson Tr.756 Lime 19. ‘We could get * * *”’ | 16. - Edelson Tr.757 Lines 2-3. ‘‘We get asa: | Com- ptt ' pany’? . . 3 17. Edelson Tr.760 Line 23-24. ‘‘but I 28 not been . | able * * * there.”’ 18. - Abernethy Tr.812 Lines 6, 9. ‘Well, we were * * * : s . there. ” : : 19. Abernethy Tr.813° Lines 3-8, “Well, jit has been _ ee setups. 99 20. Chanenson Tr. 824 Lines 13-18. ‘‘If the policies cilestiigs 4 | that.’? 21, Chanenson - Tr.827 — Lines 17-20, ‘and whieh ; gers! uk: + * prospects. id j 92. Chanenson ‘Tr.827 Lines 24-25. ‘‘Tires = oes 33. Ghanenson. Tr.828 Lines 1-5. ‘‘in some instances | sa 2 : ey oe * us.”’ | ie Chanenson. Tr.828 -Linés 7-13. “They might order © @ @ ajj,”’ JA 55" ' Motion to Strike of = The Texas Company i ad Witness “Transcript . Line Ss 25.” Chanenson “Tr. 830 Lines 1-12. ‘We have * * © ) item.”? : 26. Chanenson Tr. 831 Lines 1-2. “In eynnection * * * ce eM cS . . 27.. O'Keefe . Tr. 895 Line 22. “He owns * * ¢77" 28. Dwyer “Tr: 906- Lines 19-21, “J found Ne regu- - * . Jagily,? : (281) : a er. Meine 29. Dwyer: Tr.921 _—_ Lines 25 to Tr: 922; line 2, “Be- ty Seg cause he likes * * * judgment.”’ - 30. Dwyer Tr.923 Lines 20-24. ‘‘and also they * * * : Mae hee ; i 31, Shiff Tr.933 Lines 12-16. ‘‘No * * * that,” ' 32. Jennings Tr.959 _ Lines 18, 23, “No, * 2 © busi, - af ness,”* dees Brusek Tr.967 Lines 17-20, “In some instancés ¥ * se nature. 99 . : } : 34. Brusek Tr.968° Lines 24.26. - “because that is f *?¢s repair.” 35. Brusek Tr.969 Lines 9-13. “The other * © ¢ stocked.’ 36. Brusek Tr.970 Lines 7-8, ‘because i inmany*** : rae them.’’ oy 37. Backencamp ‘Tr. 1078: Lines 6-7. “and that i is: ae * wie a | tires.’’ 38. Toft Tr. 1169 Lines 10-12. ‘‘I would consider : eens * figures. 9 : - @ « JA 56". Motion to Strike of Respondent The Texas Company - Witness “Transcript ‘Line Toft — Tr. 1179 Lines 25-26. “Yes, we e could soe . _Conoco.”’ 40:' Nelson Tr. 1213 Lines 13-15, 23, Tr. 1214, Line 46. Th ‘*We are not * * * companies.”’ 41. Nelson Tr.1216 Lime 5. ‘‘ Well, we can’t * * *”’ 42. Renken Tr. 1237 — Lines 13-15. ‘where there was as. 0 a * * * otherwise.”’ ; - 43, “Kossek Tr. 1266 Lines 6-7. ‘sin other words * * * ,t_ 1, ae : » 44, Oleg. “f _ Tr.1321 Lime 15. ‘Because -I couldn’t 2 : * 9 09) 45. Zaloudek Tr.1472 Line 19. ‘‘justtokeep***” ~* seal Ce bi 46. . Zaloudek —§ ‘Tr.1473 Limes 12-13, 16-20. ‘“‘I had* * * : 7 - eooperative.’’ | ,; 47. McCann Tr. 1522 . Lines 23-25. ‘‘arid he found.* * * | . “2 3 Sgt 48, . McCann Tr. 1523 Lines 5-6. “We just didn’t * * * | | ee : four.’’ | ees 49. © McCann Tr.1525 Lines 12-15. ‘‘We'tried * * *:sta- | | tion.’’- 50. Sanford — Tr. 1598 Line 18. “‘I think so.” | @ 51. Sanford ‘Tr. 1634 -Liné 18. “I certainly * *,*”” e 52. Zimmerman Tr.1640 Lines 13, 15. “Almost stock * *.* Yes.’’ | 53. Melton Tr. 1860. Lines 16-22, “That would be*** property.” s | | ae > ml JA 57 7 sail ‘Hotion to Strike of Respondent 2 The Seti Company Witness Transcript ‘Line 54. Melton Tr. 1861 Linés 14-21. “And of course, ‘“@ @@ Products.’ 99 55. Melton * Pr. 1862. Lines 20-22, “If ] we cee . Firestone. +3 56. Melton _ Tr. 1864 Lines 24 to Tr. 1865; lines 2, 11. is 7 . _ “Well, I would * * * batteries. $: 07. “Melton - Tr. 1883 Lines ae-18. **A good many “"r* ; 3 cancel] ; 08. Riddick ° Tr.1940 Lines 3-5. “But you’ re larger Pie. ses with.’’ 59. Koehler ~ Tr. 2059 ‘these 16. ‘I did.’’ 60.. Goldstein. Tr. 2072 Ljnes 16-20, ‘Tt is very eos. controlled.’ 61. Goldstein Tr. 2079 Lines 20-22; ‘And it mae * 9° ©. + be 9 . 62. Price — Tr. 2081 Lines 18-19, ‘They did * * * sta- | . | 7 Hane” a saa a . : - (96a) -. - ae, ease. 63. Price Tr, 2083 Lines 7-10. “And they couldn’t ( . : eed ' Gould.” 64. Beott - Tr. 2112“ Lines 13-14, “He hought eee : , _ Goodrich.”’ 2 * 65. Scott. - Tr2114 Line 13, « That i is right.’’ & 66. Scott _ Tr.2115 Lines io-11. “And he * * * Tine, " JA 5S Motion to Strike of Respondent The Texas Company (284) , it Not Responsive and Evaswe Answers In many instances the answer of the witness was ‘int responsive and should, therefore, be stricken. , An exam- ple of this type of testimony which should be stricken is that of Dwyer, Tr. 926, lines 23-26: +Q. What was the name of the dealer you men- - tioned whose lease was cancelled for nine monthi¥ , - “A; Mr, Suffert of Texas Company cancelled that lease about two years ago *.* *”” ‘In certain instances such testimony is also objectionable in that it contains conclusions or opinions of the witness, and should be stricken from the record for the additional reasons set forth in Section IL supra. We shall use the “symbol ‘‘(C)’’ to indicate instances where the witness has testified as to his conclusions or opinions and ‘‘(H)’’ where the answer involved hearsay: Witness Transcript . thie (C) Edelson Tr. 744 Lines 4-13: ‘‘For the simple * * * . © previously.’’ . (C) Edelson ‘Tr. 787 Line 1-2. ‘‘our Misiness * * * fe , back.’’ . (C)° Edelson Tr.797- Lines 5-6. ‘‘due to the fact * * * (H) . : gas—’’ ° } . {H)’. Dwyer Tr.926 - Lines 25-26. ‘‘Mr. Suffert * *.* .a5 ‘ ° ago.’’ | ¥ (C). ~ Trancht Tr. 980 Lines 24-25. ‘fro prove some- . : _— : we thing ° * * of.’ \: peli Peden «FA BD Motion to Strike of Respondent The.Texas Company Witness Transcript - Line 6. (C) Traucht r.981 ~Line 1. “Whether *** is.” (H) RED cy ee ae (285) | ae ~ 7. (C) © McCann Tr.1543 ~— Lines 8-9. ‘I don’t know eae: ; items.” | ‘s ey 8. (C) McCann Tr. 1562 - Lines 24-25. “E really don’t * ede he did.’? 9. Sinclair Tr.2036 Line 2. “I cold him * * * gta- , ) ~~ tion.?? 10. (C) ‘Avery Tr.2091 Lines 4-5. ““He rie because * * * | (H) | een.” likes.”” * " 1L.(C)- Seott ‘ Lines 12-13. “T think - o * 7, through —— She AT . : : 67.. Smith Tr. 1690 Line 26, through . ne , _ Tr. 1691 Line 7. ; 68. . Smith | Tr. 1692“ Lime 3-19. _—~ 69, . Hussong Tr.1711 — Line 8-13. . 70. Barton Tr.1730 . Line10,through“° ; | Tr.1732 = Line 17. - aa ** The testimony related to relations. between Conoco and Fire- F in| «fF ’ - g ; stone, neither of which is a Mg ae “ oF 5 if ‘ ct es 4s JA 68 Motion to Strike of Respondent The Texas Company 04 | 3 | " Bahibits That Should be Stricken A number of Exhibits ‘relating to oil companies that ‘were not respondents in this proceeding were admitted . over objection. ‘The Hearing Examiner stated (Tr. 636) that the proper time for a motion to strike by respondents ore . would be.at the end of the . The following its, ‘ .ineluding Exhibits which are Sumaterial to this procegding, -Should be stricken. | 7 “Admission : _ into evidence . Exhibit No.’ (transcript) 1 ais See =. *. ORigeererr ~ 350 igs Ox106e* 350A i . ae el 6st ORM Rae 7 CX109*... . --- - | 852 8 OR ae 9 CXI50A,B = (ss2078Ct 10 ‘CXISIA,B® - |. (1278 oxwpare 1278 . CX158A, B** 1800. JA 9 - / _ Seelam Motion Se of . The Texas Company: (Noventber 19, 1957) ~ | _ (817) re | a L UNITED STATES OF AMERICA - Buvorz THe Feperat Teape ComMission ..- Ceo + igahs oa To THE Hoxonanue ‘East J. Kota, Hascowe ‘Bxaurenn: . Responildat, ‘The Texas Conlipaniy; by its attornéys filed . with the Secretary of the Commission, on November ‘8, c - 1957, a “‘Morié~ ro Srarke’’. Examination. of the record of the hearings held on November 6th, 7th and 8th, 1957, . - discloses that cgrtain | additional exhibits and “mapriena! | “should be Stricken.” ° Wasklotesi Respondent. biked supplements its “Mo- Tion’’ in the following en gr (318). gfid | 1. Section VI of the Bpecifeation annexed to the a ’. tion is supplemented by adding thereto the following : . The following ‘exhibits relate to oil companies that — are not respondents in this proceeding and which have no ion to The Texas Company. No employee or . officer: of The Texas Company has had anything to do with these exhibits and, on almost all of them,,the ~ ‘name, The Texas Company does: not even appear. - The exhibits have no, probative value,,,Their ad- mission, and the. basing of any adjudication theréon, _ would Violate the Rules of the Commission’ #'to’proba- ° tive evidence and the Adminiehnin Procedure : Act | @. ® a 70 "Supplement to Motion to. Strike of The Texas Company were admitted subject -to a specific hearsay ‘objection. or & specific objection that the documents were res and. would dagetve The ‘Texas Company of due process - NY of law (Tr: 2228-29)... ‘All of the exhibits listed below were admitted. eit- "Jeet to the foregoing objection.’ In: addition, many ‘inter wlios.acta—the so-called intra-company objection. ' . This Motion to Strike is based upon. all objections “made. We have indicated those (319) exhibits to ‘which there is the additional hearssiy objection by the - .. use of the symbol “ (H)’’ and those documents to which * -. there is the additional intra-company objection ‘‘(I)”’. | The. follpwing exhibits “— therefore, be etrick- en:': fs Admission to ~—_ | | Evidence ‘Echibit No. (Lranscrigt) ‘13. (H) _ &x215 ae “14. (B) . 02160 2239 15. (H) OX216 sa ; 16. (HY =. Ox2ig. 2234 17. (BH); | OXa9@ 2285 18 (HE) Oa) ACO 2235 19, (HD Oxao =a 90) Oxana@ 2237 |. Sh CH). OKaa80- _ 2938 Bese cey ERAM . 2239 a) Omeo + 30up AMD os, Cane 4.BP oo BMY (Relates to Conoco, a JKT ——— 2 i me - 7 ; ,) Supplement to Motion is Strike: 5 The Tewas Compory. 3 Admission te ¢ . Evidence | ' (Transcript) a ea omega ga . (1) F i e 0x232 A, BY a -(I) | K283 A-D Oa AS Goes | (BH) (I), |) Oxas5 ao : 2. (H) (I) 137%, (3 9960" ~ es : (A) (I) a ae _ 0239, A-DO * ee ~ OK07 AF a ae oxn2 A, B® ‘c + 5963 J ( : . (H) @) .(H) (I) 27 28 29 30. 31 32 33 34, (H) (I) ° 35 36 37 38 39 40. 37. (H) (I), . (H) (1) . (H) (1) . (H) . (H). (2) (H) (1) . (H) (I) - 44, (H) (1) 45. (H) (1) as ~ @ Rates to Conoéo, OXu3® Oxo OX2459 - OX2460 ,2 377 . ‘ s 2 a 2263 | t ursiniabie- (ip). © a Itt be wt tre § ; (i) —Relates to Conoco. om Gi) Relates, tp Jenney - Samulactating pNP AN as = | “Ja 72 Sas Supplement to Motion to Strike of The Texas Company Wrst 7 ees 3 Sar _ Admission to ae , Eahibit No. . er: Transcript ) * 46. (H) (I) _" OX252 A, BO ° 2963 47. (H) o.. i ox2530 2968 °° 48. (H) (I) . - Ox254 2263 49. (H) (I) — OX2550 ~ 2963 50. (H) (I) OX256 A, B® 2268 laa: aS 92. (H) (2) Ox258” 2263 53 (A) (1) CX259R 2263 56. (D260, 2063 8. (O26 » 9263 36. (H) (I). OX2620 2263: ” 57. (H) (I). OX263 A-Z(22) 2264 Rs OX264 = © 2965 50. - OK266 A-C® 66 60. OX267 A-C 2967 61. (I) : 0x71” . 2268 em) ORR | 63. a 2269 (82) : yh eh ae OX73% ZL. . 9969 | ai) ) Shell American Petroleum tase. (ANE ota ARE oe Supplement to Motion to Strike of The Texas’ Compony : : : Admiasiots 6 ) : ‘. Evidence. - ‘ Exhibit No. | ( Transcript)’ \@ >>: > eee 2270 ~ 5. OX77 A, Ro 9971 | 66 = GRT8/A, BO ae a CX79,A-D® * 2272 67. (I) xs aaa 68. (H) (I) CX8hA-E® = 2274 >» 6. . CX82 A,B” 2274 10. (H) (I) .o OX8BA,BQ 2275 71. (H) (I) CXS A,B .. 2275 72. (I) \ be ABO 2276 73. (H) . Oxs7™ - 2278 ) ae > Lines 19-21. “Often times ore stock.’ ae eae » ‘ Motion to Strike of Respondent The B. F. Goodrich Co. ) alain a eon 3 or opinion of the wikis ; such tes-_ - timony has no-probative value and should be deleted from — the recozd. For example, Chanenson testified a 831, - lines 1-2): ?. - €e" “In connection’ with, batteries, certain specific brands are the only kind that most Texaco statiéns can carry.”’ y The following evidence should be stricken: Witness | Transcript Line . | 1. Richmond. ‘Tr.653 Lines 89. “it was ‘easier * * * rite. Sage ee of time.’’ ere ar 2. . Richmond | Tr. 656 .. Lines 7-11. “Tn the last * * * ) " . ; PY 2 . ; nil. “ e : y ° ' *3 Richmond _‘ Tr.655 - Lines 20-24. ‘‘When you make | wot OO OE 99! _" 4. Gehrke: Tr.706 Lines 19, 26 to Tr. 707 line2. “I eo Hs wo d say * * * you.” ' ‘ (375) ™ ; ‘ole i | - ss * - - to zhe ‘ : “ 5. Gehrke . Tr.707 lines 16-17. ‘‘Before.my time a & : e288 No.”’ & : Gehrke Tr.708 Line9. “Ido” § 7. Edelson Tr.739 . lines 11-12. “You see * * * sta-- ne Pe ¥ tion. s ie gies * 8. Edelson § Tr.740 Lines 3,6. ‘‘At the present ** * little.” - i JA 88 | | : see to » Strike of Respondent The B. F. Govdrich Co. ee | noes Witness ‘a vanscript Line~ 9. Edelsott Tr.740 - Lines 13, 16, 20-21. “No, rae of is : , ‘please. ”? | 10- Bdelsoi =r. 740 ‘Line 24. WAR li limited ° °°? 11, Edelson ° Tr.741 Line 5. ‘‘No, we are not able - rai 7 @ @. 89) 12, Edelson ‘Tr. 741 Limes 11-12, 18. - “We are able. if ae : *** that” Spell ges 13. Edelson mn Dr, 741 “f Lines 23-24. ‘‘We are limited: Pees ak | : | * * * basis”? | ~ A tle a ty ee ae Me et TE: » ee 14. Edelson Tr.746 — Lines 10-11. ‘We are not ** es ‘-. business.’’ +. os . 15. ‘Edelson + Tr. 747, Line 2. . ‘Very much more * * *”” 16. Edelson - = Tr. 756 Line 19. “We oould.get.* * *” * 17. Hdelson Tr.757 = Lines 23. “We get *.* **Com-: : a pany”? ff ls iE cs dS 18. Edelson Tr. 760: Lines 23-24. ‘‘but I have not ish $a t —_ begn able i * there.’”? _ ' (376) | 19. Edelson Tr. 803 Lines 6-11. “When m Texheo* * , : Tequest. ” ‘ ; \: 20. Abernethy Tr.812 Lines 6, 9. -«“Well, we were RPP | é Mk there,’’ . 21. Abernethy Tr.813. Lines 3-8. “Well, it has ‘deen fe Pe - ee, | rE * © * setups.” ee : , - 29. Chanenson. Tr. 827 - Lines 17-20. ‘‘and which is is eee re | io, or i. prospects.” 5 23. Chanenson . -Tr.827 , . Lines 24-25. “Tires hid . ae e 4 i sell’? — : Fe AS: ; bs JA 84 " Motion to Strike of Respondent The B. F. Goodrich Co. © \Witness. Transcript - Line 24. Chanenson. ‘Tr.828 Lines 1-5. ‘in some instances - oti +. -s _ ° * us.’ 25. Chanenson ‘Tr.828 Lines 7-13,- “They might order _ : , : a at *#** 1”? kb 26.. Chanenson “Tr. 880 Lines 1:12. ‘‘“We have * * * ; ‘i ve ° | item. a. é | 27. Chanenson Tr.831 . Lines 20-21. “What * ee cases. ” 28. Chanenson Tr.835 —_Lines 2-6. “And ¢ * * buying.” 29. O’Keefe ; Tr. 895 Line 22. ‘He owns * * *?? 30. . Dwyer “Pp, 906 Lines 19-21, “cy aii eee reg- . E i ) ularly. 99 | | | : 31. Dwyer Tr. 921 Lines‘25 to Tr.'922, line 2. ‘Be- Ne? 3 , _ cause he likes * * * judgment.”’ - (377). : fog te | ae 32. Dwyer Tr.923 Lines 20-24., ‘‘andalsothey*** - go.’? = g 1 ie 33. Shiff Tr.929 Lines 15-16. diego they tell - me * * * to,” 34." Shiff Tr.933 Lines 12-16. “No*** that. ” 35. Jennings Tr. 959 Lines 18, 23. “No * * * busi- eae te - , ness.’” 36. Brusek Tr.967 Lines 17-20. ‘‘In some ‘instances : . ° ees nature.” , 37. Brusek Tr.968 . Lines 24-26. -‘‘because that is ‘ Sone ; © © © repair.”’ ©: 38. “‘Brusek * Tr.969 Lines 9-13. “The other* °°) a = stocked.’ : . _ JSA 85 "Motion to Strike of Respondent The B. F. Goodrich Co. Witness Transcript Line 39. Brusek r.970.° Lines 7-8. “ecwase i many” oe ne ?" them.” ; 40. Trauscht _. - 980 Lines 24-1,. “that Liknow:*:* %s ~ : | | ] is. 99 : a 41, Backencamp~ Tr.1073 Lines 3-7. “Because most * * * | - tires.’? : ae _ anything.” 12. Renken Tr.1247 Lines 9-10. ‘“‘But the ney ees - é ‘ ; 80. 92 7 ° 13. Renken © Tr.1253 Lines 19-20. “tt would be a good eet : " guess * * * yo,” : (383) | | ¥ , | } ve ; . Fe "14. Olsen Tr. 1327 Line 6. “I am not sure °-* #7? Lines 17-18. ‘‘I don’t’ know * * ¢ 4 » JA 90 Motion to Strike of Respondent The B. F. Goodrich Co. e ’ Witness Transcript ~- Lime 16. Hansen Tr.1398 \ Line 19. ‘‘I believe he * * * sta- a ; tion.’’ 17. | Hoffman “P'y,1513 . Lines'6-7. ‘I wouldn't — 7ee \ ‘leased.”” 18. Hoffman Tr.1513. Lines 15-16. © = imagine so * * * é ° } into. 99 | . 19.. Hoffman _‘Tr.1515_—_ Line 6. * ‘I believe * * * lessee.” 20.; Boyd Tr.194 ~ Lines 3-5. “Tam sare * * * do.” Hulme Tr.1929. Lines 13-14. ‘I think it isn0¢ 4 impression.”’ 22. Hulme ‘Tr. 1929 ‘ Lines 22-24. ‘I sk diate the im- | rs pression * * * property.”’ 23. @Hulme Tr.1932 \Lines 3-4. ‘‘I presume * * * be- 7 } . lieve,”’ ; 24. Bridges Tr.1943 Lines 10-11. ‘‘I don’t know * * *. | a re ie ) 25. Scott Tr.1997° Lines 810. ‘I imagine * * * oe ; , - think.’’ | : ; “(yy reniad Mierint ' 26. Chambers Tr. 2042 Lines 17-18.” “No, it would be © ek : ‘rough ** * percent.” - : 27. Chambers Tr. 2043 Line 7. “It was*** think.” 28. Goldstein . Tr.2073,.. Lines 410. ‘I couldn t answer ; ; . eo ® selling?” 99. Avery Tr. 2069. Line 25. “Mast be * * * thon. 30. “Avery ina’9! “igang €* hom JA a1 Motion to Strike ed Respondent The B. F. Goodrich Co. L Fad, Soe % " Events Prior to 1952 te several instances the testimony of a witness related | to events occurring prior to 1952 and shonld, therefore, be Be stricken. An example of this type of testimony which should be stricken is that of McCann, Tr. 1524, lines 22-23: ‘‘That started to dry up in the late 1930’s, By 1949 it was greatly reduced.” ‘ 44 = _ Other instances of testimony involving pre-1952 matter ‘are: — : - ae : year.”’ Witness Transcript | ey oO, | 1. Nelson. Tr. 1216 Line 25.~‘‘In 1949, $889.67.” 2. Nelson Tr. 1217 Lines 4-7. ‘413th and Deer Park : _ bal 2 $555. 60. 99 (385) ae 7 ‘3. Nelson’ Tr. 1217 Lines 13-14. ‘45th and Lake * eoe¢ year. 9? ; ; 4 Zaloudek ~ Tr. 1453 Line 1 through through Line 18, | Tr. 1465 iy 5. McCann Tr. 1526 Lines 6-7. “I would say*** Bi them.”’ 6. McCann © Tr.1526. _—_Lines 20-22. ‘Most of the ones _ hai eee them.”? 7. -MeCann ‘Tr. 1527 Lines 9, 11-12. “T didn’t coe. 3 . am agi 8.\. McCann Tr.1528-A Lines 13-14, “T would say sed 4 . JA 2 Motion to Strike of Respondent The B. F. Goodrich Co. , Testvmony re Firestone : _ Witness Transcript | fer 9. ~~ Talley Tr. 1886 “Eins 22, through Jip h Tr. 1912 Line 7. ; 10. Sinclair Tr. 4082‘ -. Lines 17-18. “T think the °° ie ; f deal.’’ ae ee VIL. In many instances a witness testified about the relation- ship between The Texas Company and The Firestone Tire and Rubber Company.’ Testimony /as to the relationship between Texaco and Firestone is entirely irrelevant to the issues in this proceeding, and admission thereof would rep- - resent a deprivation to a respondent of due process of law. The following references ‘should be stricken from the ‘ record: Pe | Witness : Transcript Line 1. Wolfe Tr. 81 21-23 2. Wolfe ‘Tr. 83 11-22 3. Wolfe Tr. 89 1-20 - 4. Wolfe © Tr. 90° 4-21 | 5. “Wolfe Tr. 92 1-51 . 6 - Wolfe ‘Tr. 98 18 1%. ~~ ‘Wolfe Tr. 94-95: 25-17 8 . Dods . Tr. 569 9-10 - 9 Doss Tr.560 6-10 10. Doss Tr.563-664 .23-1 « ’ Motion to Strike P . “FA 98. of Respondent The B, F. Goodrich Co. Witness Transcript. Line 11. Doss Tr. 565 17-24 ~ 12. Doss.” .” ‘Tr. 566-567 1 ie gs 13. - Doss Tr.570571 °° 414 17 14.. ‘Dose Tr..572-573 24-23 15. © Doss Tr. 574 47 ° 16. Doss Tr. 578 23-25. 17. ‘Doss Tr.-579-580 118 18. Doss Tr.581 826 . 19. ~ Doss Tr. 583 615 i 20. Doss Tr. 587-588 18-8 7 21. Doss Tr. 588 1916 * 22. . Doss Tr. 589 7-12 (387) : 7 ya 23. OChanenson Tr. 831 21-23 Je _%. . Doss Tr. 941 20-22 - 25. Dose Tr. 943 1-7; 12-17; on | 22-23 ; 25-26." 26. Doss Tr. 944 1-2 27.°°°* Burgess Tr. 1004 4.95 28.° Backencamp Tr. 1060 23-24. 29. Backencamp — Tr. 1062 5-7 ; 10-22 30. Backencamp Tr. 1063 oa 31. Backencamp Tr. 1064 4-5; 11-12; 82... Oramer Tr. 1088 11-15 - 33. Vel.O’Mara. .. Tr: 1099 - 20-24 34. V.L.O'Maera . Tr.1100 4-5 / ‘JA 9 Motion toStrike of Respoiden The B. F. "Goodrich Co. ; Witness cit i Line 35. K.L.0’Mara 2. 1617 ' 36. Seidenglanz — 0a... 37. Seidenglanz “17-18 38. -Seidenglanz 17-24. 39, Seidenglanz - 9.13, 40.. - Seidenglanz Tr. 1207 17-20 .41. Seidenglanz Tr. 1208 69 -42, Renken .'- Tr. 1241 1-17 43. ° Renken | "Dr, 1248-1944 8.26 44, | Renken Tr. 1246-1247 21-3 45. Benken Tr. 1247 11-19 46.- Olson” Tr, 1325 1-4; 22-23 47. Olson - | Tr. 1326" 1243 48. . Olson ’ , Tr. 2327 546. 49, -- Qleon | Tr:1329- . ° 4618 50, Scoville Tr, 1358 3-45 13-14 eee ee 22-93 51, Hansen = . 21-95 - 61. Taylor: © :r.1416 . ~421 a Bier oe 1420-1421 - 29-12 - 1. 63. Zaloudek «= Tr. 1457 «| 20.25 >| 64, “Waloudek =>‘ Tr. 1458-1459... 19-24 , ©. Zaloudek © ~—‘ Tr. 1462 17-20 66: ° Zaloudek == ‘Tr. 1463-1464 20-13 67. Zaloudek ==>“ Tr. 1464-1465 23-7 aa _ 68. -Zaloudek° = Tr. 1471 | 90.084 69. (, Zaloudek == Tr. 1472 10-17 | 70... Zaloudek = Tr. 1479-1473 25.5 71. . Zaloudek _ ‘Tr. 1478-1479 - ° 9-12 72. . “Ho ee Sn | >| ae = Tr.1515-° 84 / Tr. 1592-1594 4:19 Tr.1596 = ANB Tr. 1597-1601.. 16-4 Tr.1602-1603 - 9-13 Tr. 1606 21,95 Te,i007 . 34,19. . Tr.1610 °° 4.95 Tr. 1624-1625 7-4 Tr. 1626-1627 - 199° © Tr, 1630-1631 21-23 - ok | JA Motion to Strike of Respondent The B. F. Goodrich Co. “Tr. 1934 «~ q ; . Witness Transcript ° Line $4. W.E.Gmith Tr168 5-8 8. «=-W.E. Smith © . Tr. 1687 “610 _ 86. W.E:Smith Tr. 1692: 93-95 | 87... W.ESSmith | Tr.1693 © 9-10 88. * Barton ~ ‘Tr. 1725 19-25 89.5 Barton Tr: 1727 815 90. Barton ‘Tr, 1729 ° 5-41; 17-20 91. Roberts Tr. 1759 ee (300) ee 92. —- Roberts Tr. 1760 ° 25 ; 93: Roberts Tr..1762 13-15 ; 18-22 94. Roberis Tr. 1763 21-22 95.. . Roberts Tr. 1765 a: 96. Roberts . Tr. 1766° - 17-20 97. Roberts Tr. 1767-1770 6-10 98. Talley Tr..1888 16-17 99. ‘Talley Tr.1889 12-24 | 100. ‘Talley Tr. 1890 13-22 101. Talley Tr. 1892 4-9; 21-25 102, Talley . Tr. 1894-1895 14-7. 108. — Boyd Tr. 1923-1924 23-4 104. Hulme | _ Tr.1928 20-21 105.' * Hulme _ Br. 1929 8-10 106. Hulme Tr. 1931 8-11 107. ~ Hulme Tr: 1933 | 20-25 ‘Hulme "45-18 | JA 97 Motion to Strike of Respondent The B. F. Goodrich Co. Witness iat Transcript . Line 109. Hulme ‘Tr. 1936-1937 «166 110. Hulme Tr.1937_ 15-21 111. ° Bridges Tr. 1945 7-15 112. ~=— Bridges © Tr. 1946 - 35. 113... Bridges Tr. 1947 18-24 114. °° Bridges Tr. 1957. 18-24 115... Bridges Tr. 1958 5-7 (391) eS .. ie. 116. Gaiase Tr. 1962-1965 . 17-14 117. Tidwell Tr, 1972-1973 19-21 118. _. Tidwell Tr. 1975. - 14-26 119. Tidwell Tr. 1981 13-14 120. Tidwell Tr. 1982-1983 18-17 121. = Gilbert ‘M2028 © 219 122, — Gilbert Tr. 2029 3-5. 123, - Sinclair Tr. 2084 -15 124. Price _ Tr, 2082 12° 125, . Price Tr. 2083 ie 126. Price .,’ ‘Tr. 2086 7-9; 18-19 127. Avery Tr. 2090 22-23 sputck 128. Avery Tr. 2092 23-24. 129. Avery "Tr, 2094 10-15 130. .) Avery Tr. 2095 58 - 131: * Seott Tr. 2106 18-22 132. Glenn Tr. 2137-2188 . 225 133.° Bartlett. Tr, 2182-2187 | JA 98 | ' Motion to Strike of Respondent. The B. F. Goodrich Co. ee A Witness Transcript Line 134. ‘Bartlett * .- ‘Tr. 2187-2188 , (1015 - 135. Halsell- . Tr. 2195-2196' 89 136. Halsell |= Tr. 2196-2204 214° 137. ° Wolfe - Tr. 2207-2210 19-9 "138. "-Wolfe | ‘Tr. 2210-2211 18-28 139. Wolfe _ Ty, 2213 4-19 - (392) ae ' 140.. Wolfe Dr, 2214-2215 «18-25 | | Exhibits re Firestone | The following exhibits relate to The Firestone Tire and Rubber Company, which is not a respondent in this pro- ceeding and which has no relation to The B. F. Goodrich. Company.’ No employee or officer of The B. F. Goodrich Company has had anything to do with these exhibits and, on almost all of them, the name The B. F. Goodrich Com-— - pany does not even appear. | The exhibits have no probative | ils their admission, and the basing of any decision thereon, would violate the Rules of the Commission as to probative evidence and the Administrative Procedure Act and would deprive The B. F. Goodrich Company of due process of law (Tr. 2228-29). All of the exhibits listed below were admitted subject to — the foregoing objection. In addition, many were admitted | subject to a specific hearsay objection or a specific objection ~ that the documents were res inter alias acta—the so-called intra-company objection. This Motion to Strike ‘is — upon all objections made. ars ae exhibits should be oxickens ; : . . _ : ; : : sce "JA 99 | Motion to Strike of Respondent The B. F. Goodrich Co. os "waif : tt ) Admission to Exhibit Number - (Transcript) - ‘. OX 113 A-Z-52 - 2141 © 2. OX15AD | aa ; 3. oxut s 4. CX119 — 9147 ee 5. Ox 121 2149 6. Ox1933- - © ~~ 9180 7. ox22 2187 8. CX 203 — a ks ay: 9. CX24A-F | ne 2? 10. CX20;AF -. ~ 2160 © 1}. OX206AF. : 2160 oe “Ox207A-F ~~ _-2160 8%. - . oreesr. 2160 14. OxasB | 8 5. CX46EJ ee 6: ene. 2196 “17 . OX43.. a a 18 x4 2216 - | 19 OX 234 K-L. 2248 JA 100 Order Shui of Motions to Strike Certain Testimony. and Exhibits Filed by the Respondents: ; (J anuary 2, 1958) (413) ny ees : UNITED STATES OF AMERICA ‘Berore FEpera Trape ComMIssion Docket No. 6485 [Same Trriz] This proceeding is before the hearing examiner on | Motion to Strike, Supplement to Motion to Strike, and ~ Memorandum in Support of Motion to Strike, filed by the _ respondent The Texas Company; answer thereto, filed by | counsel supporting the complaint; and Reply Memorandum in Support of Motion to Strike filed by The Texas Com- © pany ; and also upon Motion to Strike and Memorandum _ in Sypport of Motion to Strike filed by the respondent | - The B. F. Goodrich Company. _ ‘The -specifications contained in the motions to trike may be divided into the following categories: a Hearsay testimony. 2. Testimony purporting to oti siiiiatinaie and opin- oy ions. ~ Be on-resporisive and evasive answers. tung where a witness indicated limited knowl- edge: - 5 Testimony relative to events prior to 1952 JA 101 Order Disposing: of Motions to Strike Certain -. Pestumony and Exhibits Filed by the Respondents — "ig ARs (414). : ; shih sea gs 6. Testimony relating to other oil ccbipncis ‘whieh had been received subject to motion to he al The Texas. Company. = Testimony relating to The Goodyear Tire &. Bab- | ber Company and The Firestone Tire: & Rabber © y which has been received subject to mo- — tion to strike’ by, The, B, F. Goodrich Gomepeny: . .* H earsay. isligsoas -The hearsay testimony con- tained.in the specifications in the motions to strike. involve testimony by competitor suppliers, who testified as :to the reasons given by station operators for not purchasing ‘such | suppliers’ merchandise. At the time this testiniony wae offered, the hearing exarfiiner overruled the objections — _- based upon hearsay on the basis that such testimony came _ within the exceptions to the hearsay rule, and that such . testimony could properly be received not as proof of the . - matters contained in said reasons, but only to show the state of mind or motives of the gas station operators. The record shows that the respondent The B. F'. Good- rich Company entered into agreements with the. respondent The Texas Company and other oil companies by the terms . of which contracts The B. F. Goodrich Company agreed ' to pay The Texas Company and other oil companies an override commission on all merchandise sold to stations under contract with The Texas Company and other oil com- panies on consideration that said oil companies. promote the sale of Goodrich TBA products to said stations. This | evidence, coupled with further evidence as to the, gontrol which The Texas Company and other oil companies main- _ "tained over their stations by reason ¢ of their contracts with -— such stations, made material to the issues in this proceed- Bs rt ; - . Hearing Examiner. January 2, 1958. | ; | «In Is Fosruee OnpERep that motion of the. respondent ‘The B. F. Goodrich Company -to strike certain exhibits ‘JA 108 Motion of the Texas Company to’ Withdraw Issues | and to Strike Evidence’ . (February 4, 1958) | _ (419) UNITED STATES OF AMERICA BrErorE THE FEDERAL TRADE COMMISSION } ae [Same TrTLE | aaa ‘ _ To roe Howonasie Baru J. Kou, Hearne Examiner: The Texas Company, by its attorneys, moves, pursuant to Rule 3.8 of the Commission Rules of Practice and Pro- cedure, for an order granting the following relief : A. Withdrawing from this proceeding all issues, legal. | or factual, involving or relating to dealings, practices, con-_ . 4 tracts, agreements or arrangements between The Texas Company and The Firestgne Tire & Rubber Company and. the operations of the parties to’ such agreements there- under. 7 | 4 B. Striking from the record in this proceeding all evi- — . dence heretofore received in this case with respect to any of the issues-or: matters set out i in sub- division A hereof. (420) The reasons for the Motion are as follows: _' 1. There is also pending béfore the same Hearing Ex- ‘ -aminer who is hearing the instant proceeding, another pro- ceeding entitled In the Matter of The Firestone Tire & . _ Rubber Company and Shell Oil Company, Docket No. 6487, ’ in which them are now involved, imter alia, the identical issues and matters stated in sub-division A of this Motion. | ve In ‘the indtent proceeding, when ‘evidence ag to the — issues and matters stated in sub-division A of this Motion - was first tendered by counsel supporting the complaint, - a JA 109 Motionof the Texas Company to Withdraw Issues ads to Strike wanes ; ' detailed objection to dll of such evidence was made (Tr. 64- 66). Upon such objection, the Hearing Examiner excluded most-of the type of evidence now sougiit to be stricken. _ be 3. ‘Thereupon counsel supporting the complaint, on Oc- tober 25, 1956, filed an interlocutory appeal from the ruling of the Hearing Examiner. han Es 4. On November 8, 1956, attorneys for The Texas Com- pany filed a brief in opposition to the interlocutory appeal, in’ which attention was called among other things to the proceedings in Docket No. 6487 against The Firestone Tire & Rubber Companyvand Shell Oil Company ahd the’ fact that the instant proceeding and the Firestone case were both before the same Hearing Examiner, and it was stated (at p. 15): re . (421) ‘‘To:.compel that Examiner to hear in'the present case evidence against Firestone without an opportunity by, Firestone to defend itself and similarly to compel him to hear in the ease against, Firestone evidence against The Texas Company without an opportunity by The Texas Company to defend itself would, as a-practical matter, be grossly unfair to both companies.: Indeed, it would result in depriving both ‘of these respondents in their ‘respective cases of the basic requirements of due. process of law.’’ * feet ? 5. The appeal of counsel supporting the complaint was sustained. Thereafter, in this proceeding there was ad- ” mitted, over objection, both’testimonial evidence and mueh documentary evidence relating to the issues and ‘matters _ ~ ' Set out in sub-division A of this Motion. — f e i: > © JA | : Motion of the Texas Company to Withdraw Tesues "amd to Strike Evidence 6. On November 13, 1957, counsel supporting the com- ‘plaint in the instant proceeding rested. Theretofore, and particularly thereafter, the Hearing Examiner in ‘the present proceeding, sitting as Hearing Examiner in the said proceeding against The Firestone Tire & Rubber Com- pany and Shell Oil Company, received in evidence testi- - mony and a large number of documents relating to the . issues and matters set out in sub-division A of the present motion. The Texas Company is informed and believes that » ' additional evidence relating to the same issues and matters will er may be introduced in the future in the said pro- ceeding against The Firestone Tire & Rubber. Company and Shell Oil Company. So -(422) far two witnesses who had previously testified in the instant’ proceeding have been éalled to testify in the said proceeding against Fire-' stone and Shell. The testimony of one such witness, Wil- liam B: Price, purported in the latter case to cover among _— other” things the same general fact situation —— covered in the instant case. . ra Pe 7. “The Texas Company had ml has no opportunity to object to any evidence offered in the proceeding against Firestone, -or ta cross-examine witaesses called in that ’ proceeding, or to explain evidence introduced in that pro-, ceeding, or to reply to such évidence or to brief or argue. - such issues as may be created by such evidence. \_The present, situation places the Hearing Examiner in “the unfortunate position of having to decide at the same — time the same factual issues in. two different cases upon. similar but not identical evidence and without the safe- guards attendant upon: representation ‘of all the parties. ~ affected ‘in each case. While we are convinced that the are Eaxfminer will use his very best efforts to keep . Fe fy : °° JA 111 + Motion af the Tetas Comping to Withdraw Issues ss and to Strike Evidence - the cases, separate and. apart, it would appear’ to be an impossible task to confine to each ease the intangible factors leading to a decision of factual issues’ so that the evidence in the one case will have absolutely no effect. (523) upon a decision in the other. This‘ inherent diffi- culty. would create:a definite and unanswerable doubt as to what exadt evidence contributed to the decision and © hence as to the legal propriety of any decision rendered. ~ Neither the ‘Hearing Examiner nor the so csupca es should be placed i in such a dubious position — 8. This situation, foreseen at the time when The» exas Company originally objected to -the introduction of the . evidence to which this motion is addressed and whén. Texas Company filed-its brief opposing the appeal-from: : the Hearing Examiner’s ruling excluding the evidence in’ ° question, has now materialized. Identical issues involving - identical parties are being tried by. the same Hearing - ‘Examiner without, however, the Examiner being able to afford’ to the parties affected the opportunities which the rules of this Commission, the Administrative Procedure Act, the Due Process Clause of the Constitution and. the decisions thereunder, specifically afford a party:to pro- — ceédings of the type here involved.’ In spite of the recog- nized fairness, impartiality and ability of the Hearing : Examiner, the more or less simultaneous “trials of the - : same issues, without: affording the parties affected the usual safeguards, confront (424) the Hearing Examiner with a task béyond the: best-of:human ability and make impossible any effort to apply: to _ sa bead re- - quired judicial process. In: making its decision onvthbeasi to saneiiveiilh num- -bered 5 gsr the a assumed a the JA 112 Motion of the Pee, ‘Company to Withdraw Issues, , and to Strike Evitlence ’ situation presented by respondent would not arise. Un- fortunately this assumption has proven to ‘be incorrect. Therefore, we submit that a re-examination is now re- >- quired. The Commission’s previous ruling should not pre- ude the Hearing Examiner’s consideration of a factual situation which did not actually exist—and which was, ~ therefore, not known to the Commission—at the time of the etarasommapsatiod * decision. 9. ‘Unless: the present. motion is pee The Texas Company has not been and will not be afforded a fair trial and. its rights and properties. will be jeopardized thereby without due process of law. It is submitted that the Com- . ‘mission, when now apprised of-the actual turn of events to which attention is here called, should view this “existing situation in a different light from a situation merely ex- pected; and should change its previous ruling as to (425)> the admissibility of the evidence in question and — therefore, grant this motion. Dated: February 7, 1958 Mazon J. Epiey, JR. Manion, J. Eruzy, Jn. Royal, Venu, Harris & assay By. ‘Frederick W. P. Lorenzen Attorneys for The Texas Company JAMZ 2 Order Deuring Motion of tho, Sdimp Gibney. be: ) Withdraw Issues and to Strike Evidence ee: 4 Naas 24, 1958) ./: ciarviett STATES OF AMERICA Berore Feperat TRrapE Comarsst0N a nm This mattér is before. the ‘oie ey examiner upon mo- tion of- The Texas Company to withdraw from this pro- ceeding any issue legal or factual relating fo dealings, (430) practices, contracts, agreements or arrangements between sf The Texas Company and The Firestone Tire & Rubber Company. It is respondent’s contention that because of the reception ‘of evidence by the same hearing examiner con- ' cerning contracts and dealings between The Texas-Com-. ‘pany and The Firestone Tire & Rubber Companf in Docket ~ No. 6487 in which The Texas Company was not-a party, deprives the respondent of a right to a fair hearing. The hearing examiner in making his initial decision must issue a finding of fact which must be based upon the — record consisting of the testimony and other evidence in the proceeding in which such finding is made. It would be un- . lawful and in violation of the Administrative Procedure — Act for the hearing examiner to give consideration to any _matters not appearing in such record. . _ The motion of the respondent i is based upon 5 the premise : that the hearing examiner cannot or will not proceed law- _ fully in the issuance of an initial decision in this proceed-— ing. It is the opinion of the hearing examiner that there is no merit to respondent "s contention. + Ir ws —* anon. that the motion of The Texas Company to -withdraw from this proceeding all issues, ; JA 114 ne Orde? Denying Motion of the Texas Company to Withdraw Testes and to Strike Evidence- (431) legal or factual, involving or volition to dealings, . practices, contracts, agreements or arrangements between _ The. Texas’ Company and The Firestone Tire & Rubber Company and the operations of the parties to such agree- ments thereunder, and to strike from the record in this proceeding all evidence heretofore received in this case with respect’ to any of the issues or matters pertaining to The Texas Cofmpany and The Firestone Tire & Rubber . ne be, and the same is hereby, denied. ae g Fart J. Kors, Oo Fasu J. Kou, .~ Hearing Examiner February 24, 1958 x 3 “ 9 ‘JA 116 . Interlocutory Appeal by Respondent Ths Texas . Company from Order of the Hearing Examiner Denying Its Motion'to Withdraw Issues and to . Strike Evidence ~ ~ (March. 6, 1958), | a SE OH UNITED STATES OF AMERICA BEFORE Fepenat TRADE Cometsiron [Same Tern] - Comzs Now tompendint, The iPexse. entlewes by its pa tata and, pursuant to the provisions of Section 3.20 - of the Commission Rules of Practice. and Procedure, re- . - spertfully appeals from the ruling by the Hearing Exam- iner, dated February 24, 1958, and received by: respondent on February 26, 1958, denying respondent’s motion to ~ withdraw 1 issues and to strike evidence. +5 ve , — "Motion for Extension a Timé to Hear Appeal and : File Further Briefs - Respondent moves, for the reasons. hereiziafter . set forth, that the to hear its appeal be éxtendéd until the - Commission has determined the appeals In the Matter of ~ - The, sodyear Tire € Rubber Company. and The Atlantic - Refining Company, Docket 6486 (hereinafter sometimes re- ferred to as “‘Goodyear -Atlantic’’) and In the Matter of The. Firestone Tiré-d Rubber Company and Shell’ Oil Company, Docket, 6487 (hereinafter aomneripes referred to | as ‘‘Firestone-Shell’’). ' _ . (435) Respondent further moves that it bé hecmidted ome file, after the appeals in Goodyear-Atlantic and Fire- _ stone-Shell have been decided, ophen data and briefs in ‘support of this yest ee .’ JA 116 Interlocutory Appeal by Respondent. The Téxas Company - from Order of the Hearing Examiner Denying Its Motion to Withdraw Issues and to Strike Evidence 4 c é » > . , ‘ | -preisaiaiiady ary Statement. - ; . Qn February 7, 1958, respondent moved, before the Hearing Examiner,.for an-.order (a) withdrawing from this proceeding all issues legal or factual involving or re- lating to dealings, practices, contracts, agreements or. arrangements. between respondent and The Firestone Tire & Rubber Company (hereinafter sometimes referred to as ‘‘Firestone’’) and the operations of. the parties to such agreements thereunder, and (b) striking from the record. in this proceeding ‘all evidence theretofore received with -respect to any of the issues or matters set out in (a). Thé purpose of the motion was to assure respondent a fair trial and to: prevent its rights and properties being - jeopardized without due process of law. .. The violation of these fundamental rights was occa- sioned by the fact that the Hearing Examiner. in a separate proceeding,* in which this respondent is not represented, . received evidence, documentary and oral, on one of the fact issues of this very proceeding. ; ¢ e complaint herein challenges ‘the trade practice 7 know as the sales commission plan—a method of (436) ? - . marketing tires, batteries and accessories (collectively known as ‘“EBA’’) by tire companies through oil company . outlets. The tire company pays the oil company a com- mission for the sales assistance by the oil company in "promoting the sale of. TBA products to-dealers selling the ‘oil company’s petroleum products. - The Commission brought three identical ‘anata attacking this practice, edch naming as respondent a tif® company and an oil compariy as partiés to a sales commiis- sion 4rrangement (Dockets Nos. 6485, 6486° and 6487). > Firestone-Shell case, Docket. No. 6487 j JA 117 -Interlocutory Appeal by Respondent The Texas Company from Order of the Hearing Examiner Denying Hs Motion - to Withdraw Issues and to Strike Evidence *» Hach complaint alleged that the partieular arrangemerit Was an unlawful method of competition (Paragraph 12 of the “Gomplaint). The complaints did not, however, confine their charges of illegality to the sales commission arrange- ment betwéen the named respondents therein. Each com- plaint alleged that the named oil company respondent had another sales commission arrangement with another tire company (Paragraph 7 of the Complaint), and that the named tire company respondent had entered into other sales commission arrangements with other oil companies whose relations with their dealers were dilegedly similar ° to those of the named oil company respondent (Paragraph 9 of the Complaint). Since each complaint alleged sales co ‘sion arrange-. ments involving persons who were not re pondents, and . the same Hearing Examiner was assigned to the three cases, there arose the novel situation of /evidence which related to this respondent being introduced in a proceeding _ in which respondent was not a party/before the very (437) Hearing Examiner who must determine the legality of respondent’s acts. More particularly, the legality of - the sales commission arrangement between Firestone and respondent is called into question both -here and in: the Firestone-Shell case in which this respondent is not rep- resented. | t The Hearing Examiner, sitting as ‘Hearing Examiner in the Firestone-Shel - case, received in evidence in that case testimony and many documents relating to the ar- -Tangement between respondent and Firestone. Two wit- nesses who testified in the instant proceeding were called to testify i in the Firestone-Shell case, one of whom, William B. Price, purported in that case to cover, among other _ things, the same general fact situation purportedly covered in’ the instant case. ee eh JA 118 - : | Tebivisintons Appeal by Respondent The Tenas Cisiieaiy | from Ordér of the Hearing Examiner Denying Its Motion’. — ies to Withdraw Issues and to Strike ‘Evidence. : At no time. has this respondent had an epodebunity pe object to any evidence offered in the Firestone-Shell case, - or to cross examine witnesses called in-that proceeding, or to explain evidence: introductd in that proceeding, ér to reply to such evidence, or to brief or argue such i ISSUES AS o- might be created by such evidence. . - The introduction of evidence and testimony with re-— spect to the pisces “tem relationship i in the Firesteme- Shell proceeding deprives respondent. of due process, — "violates the Administrative Procedure Act and the rules of this Commiésion, and affords the basis of this inter- _ locutory appeal... ° | (438) © Respondent is sheaantthy preparing for the de- fenSe case and if the relief requested is granted, the scope of) its defense, will be reduced and the preceedings expe- + ited. One of the reasons for prosecuting this interlocutory © ~“ appeal ie respondent’s bélief that the continuance of the — . violation of respondent’s rights of due process. is so funda- ° mental that respondent cannot under these circumstances obtain the fair trial and due process of law to which itis | oanatitationsliy: entitled. o 9 ere Pe The Former Interlocutory Appeal When a as to the issues and matters relating to the arrangement between respondent and Firestone was first tendered in the instant. proceeding by counsel sup- _ porting the complaint,’ respondent took: detailed objection ~ to all such evidence (Tr. 64-66). - The Hearing Examiner ¢@ _ thereupon’ excluded most of the type of evidence: which is 7 ~ the subject of the present appeal and- ‘counsel in support of © the complaint, on. October 25, 1956, sat an. maboeinemtery aoe _ from these panei —_ cae eee ya 119. labeling Appeal. by Reaposidiins ‘The Tasas Company from Order of the’ Hearing Examiner Denying Its Motion — to a Issues and to. Strike, Evidence Counsel:i in sigport of the -complaint cnjtealbeaie that the - Examiner by his rulings excluding evidence zelating to the agreement between respondent and, Firestone had ‘‘pre-. cluded the development of the f ffect on competition ; which has been occasioned by Texas’ participation in the challenged method of competition’’ (Int. App. 10-11).* (439) Counsel in support at the ae sexyronne ‘stated (Int. App. 12)%. “Tt is clear, cas that the effects created by. both agreements have a direct bearing in the establish- * ment and proof of the. charges against Texas.”’ oe and stated (Int. ‘App. eee aa _ ‘‘No one can gain a proper aviigaelie of the actual - and potential effects of the questioned method of doing — business unless all ramifications of the relationship. é existing between Texas arid both rubber tompanies under the ‘TBA commission arrangements are e fully i presented.”? | ; ‘In its brief, filed N ovember. 8, 1956, in opposition to complainant 5 interlocutory appeal, respondent directed’ attention to, among other things, the Firestone-Shell case. and expressly noted that that. case and the instant one were _ both before the’ same Examiner. | Respondent. stated in this brief (at p.. +15): ‘To compel that’ Examiner to‘hear in the present case — evidence. against Firestone without an opportunity by _ Firestone to defend itself and similarly to compel him. — tty ‘hear i in the case ween tet evidence against. *“Int. App.”. refers to the Interlocutoty eer in sport of the complaint, filed on October 2 "1956. JA 120 ie iekeiaiaaa Appeal ‘ invita Texas Company from Order of the Hearing Examiner Denying Its Motion to Withdrawn Issues and - Strike Evidence - The Texas Company without an opportunity “ The _ Texas-Company to defend itself would, as a practical matter, be grossly unfair to both eompanies. ‘Indeed, | At’ would result in depriving both of these respondents * ‘in their respective cases’ of the basic sor aneicos tence of - due process of law.’’ i ’ The Commission, however, on Nonaiben: 28, 1956 sus- tained the appeal of counsel supporting the: complaint and thereafter, over objection, there was adniitted in evidence | in this proceeding testimonial: and documentary evidence | relating to the arrangement between renpeacees, and Fire- ’ stone. . At the time the Commission made its decifion, (440) November 28, 1956, the situation now presented had not - arisen. The introduction of evidence, documentary: and | testimonial, relating to the arrangement between respond- ae ent and Firestone before the Hearing Examiner of this complaint in a proceeding in which respondent was not : represented had not occurred. i 2 % Motion to Extend Time to Hear Appeal ef ; The i issues raised by this motion are similar, in many ie respects, to those raised by the interlocutory appeal ef. Firestone, Docket No. 6487, and the interlocutory appeal — of Goodyear, ‘Docket No. 6486, each of which is presently _ pending before the Commission. Since the issues in those proceedings are in many respects | ‘similar to. those pre- sented dy this interlocutory appeal, respondent moves that ' the time to hear its appeal be extended until the Commis- - .. gion has determined the interlocatoty appeals’ in Docket numbers 6486 and 6487. i x ee el eo : ” Interlocutory. dosed by Respondent The Texas. iiateine i from Qrder of the Hearing. Ezaminer, Denying Its Motion | t6 Withdraw Issues and to Strike Evidence . ; Respondent further dernientis an opportunity. to file, ations after those. appeals have been determined, further data’ + and briefs i in support of this interlocutory halite , ” Request’ for Oral Avgestons The issues raised on the motion and on this appeal are * | of such importance that we respectfully request the privi- - * lege of oral argument before the Commission. — 5 . Fa E -« Re Statement of Issue . Is respondent deprived. of due process of lew--dnd is the Admnistrative Procedure-Act violated—by the Hearing. -’ Examiner’ in the instant proceeding hearing evidence— - documentary and testimonial—relating to the arrangement. between Pespondent and Firestone in a proceeding to which 7 \ respondent i is not a party? a a : zt POINT I Respondsat’s 7 8 rights ander the Constitation and the Administrative Procedure Act dre Violated by the Hearing Examiner considering, in a separate proceeding, ts age -bearing on the issues in this case. Respondent is not a party to the Firestone-Shell case; ‘it cannot meet and refute evidence relating to its arrange- ~, ment with Firestone that has been introduced in that pro-~. ceeding. “A considerable number of documents. nts relating to. _ ., the arrangement between respondent a and Firestone were / + admitted into evidence, before the same Hearing Examiner who is: sitting in the instant case, in-a proceeding in~which | ®.- ‘ . —_ © . . .. g, JA 122 Interlocutory Appeal i Respondent: ‘The Texas pene from Order of the Hearing Examiner Denying Its Motion to Withdraw Issues and to Strike Evidence respondent. has no standing either-to object or to refute evidence that relates to the very. matter here in issue. . We know of no authority that lends support to such an. extraordinary procedure. Indeed, such a unique method ~ . of procedure i is clearly inconsistent with at least the spirit of tle provisions pf the Administrative Procedure Act,’ © - falling within the express condemnations of Section oo that Act which provides in part: 3 “Save to the extent required for the atéposition of -. ex parte matters~as authorized by law, no such officer - _[{hearinig officer] shall consult any person or party on - any, fact in issue unless upon notice and opportunity : for all parties to participate. PA aes The Hearing Examiner by poe Rar pilin and hearing argument of counsel in another case on: matters -Felating (443). to the arrangement between respondent - and Firestone is considering facts relevant to the issues in . this proceeding without the opportunity for respbndext to participate. This.is certainly niore injurious to the ‘re- , —_-——~spondent than a mere consultation by the Examiner - would. be. . + The vice of the Hearing iner sascha the ‘evidence relating to the arrang nt between respondent ‘and Firestone in a proceeding in which respondent is not @ party ig: high-lighted by the fact that such évidence is ; deemed by counsel supporting the eomplaint to be essential . , +e present proceeding. Counsel, in ~—~gupport of the ‘complaint, stated that the effects created by that agreement has ‘‘a direct bearing in the establishment and proof of the charges against Texas’’ (Int. App. 11) vand that mo one could gain @ proper perspective of the ee . © > ‘ . . ad : ‘ P ; ” ' . * ; = . * . al . é i Si ee JA 128, ee deadening Appeal by Reepoideit The: Texas Goingiasiy from Order of the Hearing Examiner. Denying Its Motion — to aia Issues and to Strike Evidence - gram ‘‘unless all Famifications of the relationship salating vitarieis Texas and both rubber companies under the-TBA — commission arrangements are fully presenter ”? (Int, App. © 17). | " However, certain of these ramifications are being devel- oped before the present Hearing Examiner in a procéeding . in which respondent is not a part? and,,we submit; that under the Administrative Procedure Act the Hearing Ex- aminer may not properly hear such evidence ex a to - this proceeding. . In order to. prevent the respondent’s rights being jeopardized by such ex parte receipt of evidence, it is (444) necessary to withdraw from the present proceeding the issues relating to respondent’s arrangement with Fire- se stone and all evidence with respect. thereto. eee If the Commission had intended that ‘evidence ‘relating to this respondent should be introduced in a proceeding in | which respondent was not a party it undoubtedly would” _ have assigned such proceeding to a Hearing Examiner — conciliation comnfissioner_ fixing a& va other than the one saalagied to the instant. proceeding. It ‘ is wholly undesirable for the same person at the same time to hear evidence relating to the same issues in von proceedings. ; It is: familiar law that the-ieacling officcr is not ae consider evidence introduced outside the confines of the~. oy case before him. Thus, the Supreme Court in Carter v. ; Kubler; 320 U. S. 243 (1943) in discusging the action cn. - antine which was _ partly:on the basis of his oe pe tet stated . {at p. 247): | ‘The basic ase of such a hearing yegiog: the right of each party to be apprized of all the evidence upon which a factual adjudication rests, plus the-right._ «TA 1 Interlooutory Appeal. by Respondent The Texas Company from Order of the Hearing Examiner Denying Its. Motion to Withdraw Issues and to Strike Evidence, * to examine, explaiis or rebut all such eviderice. eee It was apparently made without petitioner’s knowledge or censent and no opportunity was accorded petitioner to examine or rebut-the evidence obtained in the.eourse of such investigation. The: use of this evidence was therefore inconsistent with the right to a fair and fall _ hearing.’’ It is no alae is say that the Secstan: Demntior will do his best not ‘te be’ influenced. by such evidence he has heard under.oath in a proceeding in which respondent is (445) not represented. Thus the Court in Mozer v Mortgage Guarantee Co., 9 Cir.,° 123 F. 2d 423 (1941) cogently stated the danger. of this (p. 425) : fa ‘What influenee the evidence taken outside the hear- ing, proper or improper, may bave had upon the eon- clusion réached*by the commissioner, or what counter . effect t cross-examination or rebuttal testimony would roa “had upon such conclusion, can ever be known.”’ See ae United States v. Dillman, 5 Cir., 146 F. 2d 572, _-BT4, 5T5 (1945), cert. den. $25 U. 8. 870 (1945). Once it is conceded that a Hearing Examiner, in such— - a situation cannot avoid importing knowledge received | from. the one proceeding into his decision with respect ' the other, it is clear that the unrepresented party is deni the right to appear by counsel, the right to conduct cross - 7 examinatigp, andthe right that the ptoceeding against him be decided only on the record of that proceeding (Admin- istrative Procedure Act, §§6(a), 7(c) and 7(d); §3.16(b) Commission Rules of Practice and Procedure). ae | | Interlocutory Appeat by Respondent The Texas Company _ from Order of the Hearing Examiner Dehaing Its Motion | to Withdraw Issues and to Strike Evidence. : " (446) | gem » POINT ) The Hearing Examiner’s ruling is baséd oh ‘an errone- - ous premise. oe gdh ats _ The present situation places the-Hearing Examiner in +*-~ . the unfortunate position of having to decide at the same bs time th€ same factual issues in two different cases apon similar but not: identical evidence and without the safe- guards attendant upon representation of all the parties . affected in each case, While we are convinced that the Hearing. Examiner will use his very best efforts to keep the’ca [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0015%3A01. Public record. Not legal advice.