# Petition for Writ of Certiorari — Moore v. Standard Oil Co. of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0241%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1958 - **Citation:** 356 U.S. 975 ## Text SUPREME COURT. U, s. MAY 5 1868 No. 974 ! J som. Fey, coor tt the Supreme Court of the Rnited States OCTOBER TERM, 1957 GEORGE F’. Moore, Petitioner v. STANDARD Or COMPANY OF CALIFORNIA, a Corporation; SHELL Om CoMPANY, a Corporation; THE Texas CoMPANY, a Cor- poration; RicHFim.pD Om. CORPORATION, a Corporation; GENERAL PETROLEUM CORPORATION, a Corporation; TIDE WATER ASSOCIATED Ort CoMPANY, a Corporation; and UNION Or. COMPANY OF CALIFORNIA, a Corporation, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DONALD McL. DAVIDSON W. H. FERGUSON C. S. BURDELL Attorneys for Petitioner 1012 Northern Life Tower Seattle 1, Washington rravn <> No. in the Supreme Court of the Rnited States OCTOBER TERM, 1957 GEORGE F’. MOORE, Petitioner v. STANDARD OIL COMPANY OF CALIFORNIA, a Corporation; SHELL Or CoMPANY, a Corporation; THE TEXAS COMPANY, a Cor- poration; RICHFIELD OIL CORPORATION, a Corporation; GENERAL PETROLEUM CORPORA”™ION, a Corporation; TIDE WATER ASSOCIATED OIL COMPANY, a Corporation; and UNION Or. COMPANY OF CALIFORNIA, a Corporation, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DONALD McL. DAVIDSON W.H. FERGUSON C. S. BURDELL Attorneys for Petitioner 1012 Northern Life Tower Seattle 1, Washington FRAYN cp i INDEX Page TRI WT AIMED an nn scccccccccnnscccccececocesescens ern ‘nineeateneone iv, Vv SSE ete ene See ee Tete nT vi Ga senor dcikehadcebsinndtebssansacaaniauideuanciensnut, eRe On: vi o will 0 i £0, Sere aeiS ee eee ae JURISDICTION ........ ligiceaaaalanchasdaaaaapeamueei argues 1 QUESTION PRESENTED FOR REVIEW...................... Zz IMD occ sido co csen sccnenecncacaseadansacecssuenacsunnes 4 WE ia cvatisncleacacacecscscbiccascans Sp RE Rate ee Pe Reta 4 oa cscakcndiswiecnncersabnewetonsen — eid cay rans cash abdea badaneantaeel eae 6 RIT RENE A ERR SERA OES Sete Nara 8 FSA ee ere tale OER any ane te RS nr 10 I he cos 1 Sd dae Wa ueaaanenees 10 I. Palmer v. Hoffman does not compel exclusion of defendants’ business records when offered against RUE EN ON Ne 7 en Cee ae Ue CT Ree Ee Eines 12 II. Ruchislonaty EET aes en ee ae core 15 1. Writings giving reasons for actions of others.. 15 2. Writings attributing information to others... 16 3. Stamping, initialing and filing as authorized practice but not required........................0.00....... . 19 4. Casual and informal contents..............0....0.......... 20 5. Adherence to contemporaneous recording........ 20 III. Acts, Declarations and Admissions.......................... 21 PR RE a ee rk eR 23 eee a cee ert ope AERC I eR oa ae . 26 APPENDIX A.—OPINIONS BELOW 1. Standard Oil Company of California, et al. v. George Moore........ SA AGIDDiL Reade tan eee icieas ecekcneete See aS 1A 2. Generali Petroleum Corporation, et al. v. District SIGE oa arc sen asens uactoeientadeincens theasenriied oecneek ereae keen 61A APPENDIX B.—EXHIBIT 6-B Re eee OS eS eraaneteeaeeee ae TOA Bx: eI = Soden wectvacscoliccastoneeueeiteeaceetestas aac ar cess T1A Il. Il. . Authenticating Testimony and Evidence VI. INDEX (Continued) Other Exhibits on Form 405-A..... a. On Form 405-A b. Use of similar forms Other Exhibits Bearing File No. 13] D..........._.. a. Relating to “Form 405-A’’... Bee hana b. Subject matter: “Competitive Info”. abana. i, — i a nn cn ccna Specific Authentication of Exhibit 6-B.................... Pre-Trial Proceedings ....... adele ais oa cnacvicepcas Monti a. Meaning and understanding of Order................ OTT, aE ili Page 72A TABLE OF AUTHORITIES CASES American Tobacco Co. v. United States, 147 F.2d 93 (CCA 6th 1944), aff’d 328 U.S. 781..... .......20000..... 22 American Tobacco Co. v. United States, 328 U.S. 781 Re re rh 2 a a oe ed Co EN oem 11, 12 — = erative Serum Ass'n. v. Anchor Serum Co., d 907 (CCA 7th 1946), cert. denied, 329 vu + 721 in OTE ICSE OR Stes hel OEE Rc woth es ES ny a Connelly v. United States, 249 F.2d 576 (CCA 8th 1957) .. Clainos v. United States, 163 F.2d 593 (App. D.C. 1947) 13, 7 Cub Fork Coal Co. v. Fairmont Glass Co., fo F.2d 273 Bg SMR 65ST STEAL Sa 12 DeYoung v. Campbell, 151 Wash. Dec. 1, 315 P.2d 629 IID cdi sonat sii Kaee essa rapes cininsaeieligis ita teeaBncnetas Cinna ene 12 Duff v. Page, 249 F.2d 187 (CCA 9th 1957)............-000.-..... 12 Ethyl Gasoline Corporation v. United States, 309 U.S. | TERRI BRERA Art AIR oA Se cer ot 11 Fanchon & Marco v. Paramount Pictures, 100 F. Supp. 84, (S.D. Cal. 1951); aff?d, 215 F.2d 167; cert. I Cs en connie 6a, Wie 25 Funk v. United States, 290 U.S. 371 (1933) .............0..0000...... 12 Gencarella v. Fyfe, 171 F.2d 419 (CCA 1st 1948)... 17 General Petroleum Corp. v. District Court, 213 F.2d 689 (CCA Oth 1954). ,\_~we we noe Rae we won ee on hee Oe ee eee See Sete see eeeecessweeeesesecesess 1 Greater New York Live Poultry C. of C. v. United States, 47 F.2d 156 (CCA 2d 1931), cert. denied 2 4 | Soe 16 Hartford-Empire Co. v. United States, 323 U.S. 386 EEE: SIN eee tore Rn ala eR LD PNT 11, Johnson v. Dahlquist, 130 Wash. 29, 225 Pac. 817 (1924) ... Johnson v. J. H. Yost Lumber Co., 117 F.2d 53 (CCA RO UE coh RON AOR OWA TIE Ue Eon CIO 12 Karseal Corporation v. Richfield Oil Corporation, 221 F.2d 358 NR I ste a eens teee ovkayerciences 25 Lauderdale County v. Kittel, 229 Fed. 593 (CCA 5th MR, sce ial ae ire a a aa alae ccs cae awevacneeecnkend ons 16 Lawlor v. Loewe, 235 U.S. 522 (1914) ....0.0... eee. 16 Massachusetts Bonding & Ins. Co. v. Norwich Pharma- - cal Co., 18 F.2d 934 (CCA 2d 1927)....................00000000.... 12 Michelson v. United States, 335 U.S. 469 (1948) .......0000..... 12 Moore v. United States, #16864 (CCA 5th 1958) un- reported ............ cilefun ba decndt sn cackabeginchcatercawecasncahauataniciara mets .. 24 National Surety Corporation v. Bellah, 245 F.2d 936 Ts Titer Rea ito Oe Re ey me SCS 12 Overfield v. Pennroad Corporation, 42 F. Supp. 586 Sere MT essences cco eee eee tata 22 TABLE OF AUTHORITIES (continued) age Palmer v. Hoffman, 318 U.S. 109 (1943) -............... 2, 10, 12, 30 Patterson v. United States, 222 Fed. 599 (CCA 6th 1915), cert. denied 238 U.S. 635...................0000000...... 12, aa Pekelis v. Transcontinental & Western Air, 187 F.2d 122 (CCA 2d 1951), cert. denied, 341 U.S. 951......... 13, 22 Pollack v. Metropolitan Life Insurance Co., 138 F.2d 123 ad aa chadsahdecanssivnacnsunshiocenen 14, 17 Schine Chain Theatres v. United States, 334 U.S. 110 al le EASE ne ae ll R/O 11, 22 Selber v. Springbrook Trout Farm, 19 Wash. 49, 52 Pac. tae aks ca taneuasaxtacentiniasncanstes .. 22 Skibsaktieselskapet Bestum III v. Duke, 131 Wash. 467, sc Connanangaxantinnsnsintbatnnviconsapsaieavaverss 22 Slifka v. Johnson, 161 F.2d 467 (CCA 2d 1947), cert de- I ce cchatnny shwncxnenescsrastveasesse 13,17, 22 Smith v. Bear, 237 F.2d 79 (CCA 2d 1956) ........-.-.----.--...... 20 Standard Oil Co. v. George Moore, 251 F.2d 188 (CCA aaa can saccynsickuanesvensancdnanneiiesiapaanncecess 1 Tevis v. Ryan, Ee EY eee 16 Tretheway v. Green River Gorge, Inc., 17 W.2d 697, 136 os anesnnncnalbbsnnundanncneeresssaaniveks 23 Ulm v. Moore-McCormack Line, 117 F.2d 222 (CCA 2d 1941), cert denied, 313 U.S. 567.......................0000... a United States v. Apuzzo, 245 F.2d 416 (CCA 2nd 1957), rt noon cncpesansessnncsnceasctenctcnscess 25 United States v. Corn Products Refining Co., 234 Fed. 964 (D.C. N.Y. 1916), appeal dismissed 249 U.S. 621.. 13 United States v. Costello, 221 F.2d 668 (CCA 2d 1955), i nL, ls sa sheharch acetate shnenshiascacranedarctssacsn sess 17 United States v. General Electric Co., 82 F. Supp. 753 I 8d ciiiackscanshausniguasatnnteneioantitvtnaeniselnan Be fk een ae 2 S$ 1294(1) (62 Stat. 930) ............ Ce Learene e eee 2 ee on a 2 ee I I oe crete se At PIR a 4 ee Bs RRR TRE iia NR Le Ree one tn 20 } vl No. in the Supreme Court of the United States OCTOBER TERM, 1957 GEORGE F. Moore, Petitioner Vv. STANDARD OIL COMPANY OF CALIFORNIA, a Corporation; SHELL Or, CoMPANY, a Corporation; THE TEXAS COMPANY, a Cor- poration; RICHFIELD OIL CORPORATION, a Corporation; GENERAL PETROLEUM CORPORATION, a Corporation; TIDE WATER ASSOCIATED OIL COMPANY, a Corporation; and UNION Or, COMPANY OF CALIFORNIA, a Corporation, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OPINIONS BELOW The opinion of the Court of Appeals in Standard Oil Company of California, et al. v. Geerge F. Moore, No. 14927, (App. Infra, p. 1-A) is reported at 251 F. 2d 188. A collateral opinion in General Petroleum Corp. v. District Court, No. 14319 (App., Infra, p. 61 A) denying respondents’ petition for a writ of prohibition against discovery proceedings, is reported at 213 F. 2d 689. © JURISDICTION rer ot Petitioner, a gas Washington, scnaune © > cr oan cr 2 under the Sherman Anti-Trust Act in the District Court for the Western District of Washington, pu1- suant to 28 USC § 1337 and 15 USC § 15 (62 Stat. 928 and 38 Stat. 731) for the destruction of his busi- ness. Judgment upon a jury verdict for petitioner of $280,000.00 was entered. Respondents appealed to the United States Court of Appeals for the Ninth Circuit, pursuant to 28 USC § 1291 and § 1294 (1) (62 Stat. 929, 930). The judgment of the United States Court of Ap- peals for the Ninth Circuit reversing the judgment and remanding the action for a new trial was en- tered on November 6, 1957. A timely Petition for Rehearing was filed on December 5, 1957, and was denied on February 10, 1958, without opinion. The jurisdiction of this court is invoked under 28 USC § 1254 (62 Stat. 928). QUESTIONS PRESENTED FOR REVIEW I. Does Palmer v. Hoffman, 318 U.S. 109 (1943) require reversal of a trial court’s findings admitting into evidence in an anti-trust action documents pro- duced from files of a defendant oil company against that company, where each document was conceded- ly “made in keeping with systematic and rou- tine procedures, and concerns a matter of import- ance to the business” on the ground that the docu- ment deals “with the pricing and marketing poli- cies” of a co-defendant oil company or its service station customers. (Opinion, infra, p. 40 A). Il. Are business records of an oil company inad- missible against it as a matter of law under the Business Records Act (28 USC § 1732) not with- standing testimony and other proof that each writ- 3 ing was made and kept in the regular course of business because: 1. Such writings include reasons why a co- Le FS 2 we arr defendant oil company or one of its customers altered prices, changed marketing methods or took other action relating to competition; or 2. Some of the information recorded in such writing came from a service station operator or other person not then under an affirmative legal duty to supply such information to the de- fendant who made and kept the writing; or 3. The writings were prepared in the course of the writer’s duties and thereafter stamped, transmitted, initialled and filed by others in ac- cordance with “regular practice,” as distin- guished from being specifically “required” by internal company procedure; or 4. The contents of the document are casual and informal in nature. III. Are inter-office letters and reports dealing with the pricing and marketing , olicies of an oil company and its competing co-defendants, custom- ers and prospective customers prepared in the usual course of the writer’s duties inadmissible in an anti- trust action as acts, declarations or admissions of the company unless it is shown that its sharehold- ers, directors or authorized management officials have adopted the particular letter or report pre- pared by and offered in evidence against that com- pany. IV. Should this court exercise its power of super- vision to reverse the decision of the court below up- on the grounds that it deprived petitioner and all others similarly situated of any effective means of enforcing rights granted under the anti-trust laws? 4 STATUTES INVOLVED 28 USC § 1732 (62 Stat. 945) : ‘In any court of the United States and in any court established by Act of Congress, any writ- ing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. “All other circumstances of the making of such writing or record, including lack of per- sonal knowledge by the entrant or maker, may be shown to affect its weight, but such cir- cumstances shall not affect its admissibility. “The term ‘business,’ as used in this section, includes business profession, occupation, and calling of every kind.” THE FACTS George Moore, a former Seattle gasoline service station owner and operator, instituted this action against the seven major oil companies operating in the Pacific Nerthwest for injunctive relief and treble damages resulting from their concerted re- fusal to deal with him because of his refusal to abide by their pricing and marketing policies. After a thirteen week trial, the jury returned a verdict for, the petitioner. Injunctive relief was denied by the trial court upon the ground petitioner was no longer in business. Upon respondent’s appeal, the court be- low held that there was sufficient evidence before the jury to sustain the verdict (Opinion, infra, p. 37 A), but that all of the documentary evidence ob- tained from the defendant’s business records had 9) been erroneously admitted by the trial! court as a matter of law. It found that such evidence was not only relevant and material, but essential, and re- versed because without such documents “the evi- dence would have been insufficient.” (Opinion, infra, p.46 A). Pre-Trial Proceedings Prior to the trial, petitioner obtained an order under Rule 34 for the production of variously de- scribed categories of business documents from the files of the defendants.’ Immediately prior to the trial, petitioner filed identical requests under Rule 36 for admission that the documents it had k~ then obtained and listed as intended for use at the trial were made and kept in the regular course of business. Standard Oil Com- pany admitted each request with exceptions not now material (R. 164-70) and never contended that its documents were not admissible against it through- out the trial.* The other respondents denied virtu- ally every request, even that the documents were produced pursuant to the order it had sought to set aside upon the mandamus proceedings. (Union, an- swer 1, R. 153).° ‘The record in the District Court was printed for a mandamus proceeding against the trial judge and is included as part of this record. In their petition and during argument seeking to limit the order in both the trial and appellate courts, petitioners repeatedly referred to the documents as business records, see infra p. S4A, * These answers admitted, among other things, that the documents were “genuine” and from its “regular files” and that any document purportedly made by an agent “was made in the regular course of business of said company by or under the authority of said agent.” Standard qualified one of its answers. stating: “Since that time [of production] many thousands of documents have been added to and taken from the hundreds of files in which said documents were maintained. and many of said files have been combined with others, reorganized, retired or de- stroyed by this defendant, all in the regular course of its business.” (Answer XI. R. 168). 3 This presaged the course of the trial. When asked by the trial court if a particular document came from the business files and records of Texas. its counsel refused to so state (R. 4796). Thereupon the witness on the stand agreed that “there is no question” that the document was from the “business files” or “regular files.” CR. 4800). The Trial The trial lasted over three months,‘ a great part of which was consumed exclusively in the authen- tication of documents. Petitioner first offered the documents as the acts, declarations and admissions of the respondent that made them. Upon respond- ents’ objection, petitioner was required to furnish the additional authenticating proof required by the Business Records Act. That was accomplished by questioning adverse witnesses to establish the facts that respondents had denied during discovery pro- cedures.’ Except for Standard Oil Company, one or more of the respondents objected to every docu- ment, whether or not it was offered against it, and often objected to documentary evidence offered by another respondent on its own behalf. (R. 4517-18; 9822-24) .° In the few instances when requests were made to admit only a portion of an exhibit or otherwise limit the writing, the trial court granted the re- quest. (R. 3800; 4476). Whenever requested, the court instructed the jury that no particular docu- ment or testimony should be considered against any other respondent, except in accordance with the usual rules applicable in conspiracy cases. (R. 924; 1427; 1737; 2821). Respondents’ rights to individual consideration were emphasized again in instruc- tions given at the close of all the evidence. (Instr. 17 and 20, R. 7500, 7501). ‘ The trial was one of the longest on record and is comparable to major anti- trust litigation instituted by the Government. (Opinion, infra, p. 22 A, note 16). Jury fees alone cost the United States at least $10,000.00. See Report of Jury Service, Oct. 22, 1953, Administration Office of the United States Courts. 5 Almost 2,000 pages of the printed records are devoted exclusively to such testi- mony (R. 2177-2451; 2467-2536; 2599-4193). ®‘ One respondent even achieved the absurdity of objecting to another's obiec- tion. Thus, when Union objected to a particular sentence in Ex. 313 (R. 3969) petitioner offered to “expunge that sentence,” whereupon General Petroleum’s attorney said: “I object to the expunging.” (R. 3970). T Petitioner and respondents introduced 1088 ex- hibits, most of which were from respondents’ busi- ness files and most of which dealt with ‘‘competi- tive conditions.” The trial court required proof of each document individually, including proof of the form of the writing, identifying marks, identities and duties of the maker and recipient, subject mat- ter and regular business procedure.” He considered “the test of admissibility . . . the standpoint of the defendant whose records are in question.’” (R. 3261). No witness for respondents ever asserted that any particular exhibit was not a usual and ordinary business document in form or subject matter. Aside from counsels’ objections no one disputed the au- thenticating proof even when the sender or recipient of a writing was a witness. Respondents themselves offered in evidence many documents similar in form and subject matter as business records upon less authenticating proof then was required of peti- tioner. At the conclusion of the trial, the trial court said (R. 4484): “The Court has tried to be careful with these exhibits, and the Court has knowingly in some instances required more proof than it felt at 6& The trial court refused to admit the documents merely because they were concededly kept in respondents’ regular files and had been produced pursuant to the order. Other courts have held that production of records under an equiva- lent subpoena is a proper “indicia of authenticity” under the Business Records Tere v. Moore-McCormack Lines, 117 F. 2d 222 (CCA 2d 1941), cert. denied 313 U.S. 567. ™The maker of the record ofici conceded the particular document was a business record. Thus, when the 294 series of documents from Tidewater's files were first offered, counsel for Tidewater said: “I will not object to any of them.” (R. 2600). Counsel for The Texas Company told the trial court that its surveys of competitors’ prices as shown in the 45 series of documents were “made in the ordinary course of business” (R. 2817) and objected only on the grounds of relevancy (R. 2650) Union’s attorney objected to the introduction of “confidential business records,” because it “will disclose to the competitors the very thing which plaintiff is accusing us of, and that is inter-knowledge of competitive practices between the companies.” (R. 2201). : 8 the time was necessary in order to make doubly sure that there would be a legal authentication. “All of the authenticating witnesses called to identify offered exhibits were company officers or employees called as adverse witnesses, which some of them proved to be in fact. “If, as the trial judge presiding at this trial, I should take the view that any of those authen- ticating witnesses did not in fact understand the factual meaning of the phrase, ‘Regular course of the company’s business,’ I would be disregarding the reality of his understanding to the contrary. ‘‘Nobody could have heard these witnesses testify about these documents without knowing that every one of them understood what the question meant when he was asked whether or not that was a record made or kept in the ordinary or regular course of his company’s business .. .” Decision Below Upon appeal to the court below, respondents argued that the evidence was insufficient to sup- port the verdict, together with many other asserted errors. The court below found that there was: “an agreement, combination, or conspiracy to control price cutting and curb-sign advertising by refusing gasoline to dealers whose severe price cutting and persistent curb-sign advertis- ing bring them into controversy with their present suppliers. “There is substantial evidence that Moore was in this class of dealers.” (Opinion, infra, 23-A ) This finding upon the merits rested upon testi- mony and writings showing concurrent and uni- 9 form practices adopted by the respondents in: (1) discontinuing “split-pump” accounts and requiring exclusive supply contracts; (2) public posting of tank wagon prices resulting in a tendency toward uniform prices, (3) minimizing price competition by concealing price decreases as secret and unpub- lished rebates and discounts from tank wagon prices to selected dealers; (4) exchanges of gaso- line; and (5) “clearances” required from an exist- ing supplier before dealing with a service station operator. (Opinion, infra, p. 32-A) The evidence, the court said, showed “consciously parailel business behavior in matters touching prices and competition” and was “admissible cir- cumstantial evidence of an underlying agreement, combination, or conspiracy concerning such mat- ters.” (Opinion, infra, p. 34-A) Having found there was substantial competent evidence to support the verdict, the court below then held as a matter of law that virtually all of the writings were erroneously admitted into evidence, requiring reversal for a new trial, without regard to any or all of the authenticating facts upon which the trial court relied in admitting the documents in evidence. The court below did not refer to a single exhibit in the substantive section of its opinion and quoted only one in the evidentiary section. A portion of Exhibit 6-B is set forth in a footnote to the Opinion (infra, p. 42-A, n. 33). The court’s description of that exhibit and designation of its form, method of preparation, internal indicia of authenticity, routine transmittal and filing is so inadequate that peti- tioner has reproduced it in full, together with some 10 of the evidence upon which the trial court properly relied in admitting it. (Appendix B, infra, 68-A).° In the face of overwhelming foundation evidence, the trial court’s findings, lack of request for limit- ing instructions and careful observance of the co- conspirator rule at the trial, the court below was limited by the record to reviewing the evidence en masse and reversing upon sweeping legal rules of exclusion applicable to the Business Records Act and to “acts and admissions” made in the course and furtherance of a conspiracy. ARGUMENT Introduction This case squarely presents the issue of whether or not Palmer v. Hoffman is authority for excluding from the scope and application of the Business Rec- ords Act as a matter of law, documents of a par- ticular class or nature despite the Act’s application to “any writings or record.” It also squarely pre- sents the issue of whether or not the general exclu- sionary rules of evidence adopted by the court below effectively foreclose any litigant from seeking, proving or sustaining upon appeal any redress un- der the anti-trust laws, upon hitherto well-estab- lished principles of law. The evidence here excluded as a matter of law is of the same type and nature repeatedly admitted anc considered by this and all other courts in all % Thus, the salesman signed his full name, not merely “Art.” Although the last name is illegible on the photo copy introduced at the trial, Respondents knew his last name and set it forth in their specifications of error to the court below. It was dated and refers to a conversation “today.” It bears a regular file number and the stamps or names of three company officials, including the Seattle District and Western States Sales Managers. It is on a printed memo form 405-A, supplied by the company to its salesmen to be used for company business. It is one of a large number of similar exhibits introduced in evidence by both sides. (Infra. p. 68-A). 11 anti-trust cases, i.e., “memoranda, letters, and tele- grams * * * interoffice communications * * * [deal- ing] with such matters as the marketing and pric- ing policies and activities of the company, of other [defendant] oil companies, or of customer or com- peting service station operators.” (Opinion, infra, p. 38-A) Such documents are usually the best and often the only relevant evidence in an anti-trust case.° The decision below holds that the recorded course of conduct of large corporations is inadmissible as a matter of evidentiary law when that course of con- duct must be proved to show a violation of substan- tive law. The very means by which the illegal enter- prise is accomplished are thus shielded from in- quiry. Such a result is not required by any known principles of law and cannot be countenanced upon basic principles of justice as applicable to the law of evidence as any other branch of the law. ® United States v. Sucony-Vacuum Co., 310 U.S. 150 (1940), notes 24 and 32 at pp. 183, 190.) Ethyl Gasoline Corporation v. United States, 309 U.S. 436 (1940) (policing of jobber gasoline prices by a party who neither manufactured nor sold gasoline to jobbers) : United States v. Univis Lens Co.. 316 U.S. 241, 245 (1942) (instructions to field representatives not to sell to price cutters, and inquiry concerning price cutting activities) ; American Tobacco Co. v. United States, 328 U.S. 781 (1946) (“wide- spread and effective conduct on the part of petitioners in relation to their existing or potential competitors” (p. 789), including inter-office communi- cations reporting “upon the progress of this battle” with 10-cent brands and prophesying the results. (p. 806-07) Such evidence was specifically held admissible in American Tobacco Co. v. United States. 147 F. 2d 93, 118 (CCA 6th 1944), aff'd. 328 U.S. 781. United States v. United States Gypsum Co., 333 U.S. 364, 386 (1947) (“Complaints * * * by licensees as to their competitors’ failure to maintain prevailing prices.” ) Hartford-Empire Co. v. United States, 323 U.S. 386, 401 (1945) affirm- ing United States v. Hartford-Empire Co., 46 F. Supp. 541, 553 (D.C. Ohio, 1942). (“It is hard to imagine a case in which a court would have more first-hand information of what the parties did and intended.” ) Schine Chain Theatres v United States, 334 U.S. 110, 116-17 (1948). See particularly Appendix B to the Government’s Brief and District Court decision admitting over objection inter-department communications made in the “ordinary and usual capacity” of the duties of Branch and District Managers of non-party distributors, 63 F. Supp. at p. 242. 12 “The fundamental basis upon which all rules of evidence must rest--if they are to rest upon reason—is their adaptation to the successful development of the truth.” Funk v. United States, 290 U.S. 371, 381 (1933). Documents of the nature here excluded as a mat- ter of law have thus been admitted in anti-trust suits under the common law rule admitting entries made in the regular course of business,'’ as acts, declarations and admissions,"’ and under the Busi- ness Records Act.” The only way the court below could reverse the judgment was to ignore all such factually relevant precedents and “formulate rigid rules for the exclusion of evidence’’’* contrary to Rules 43 and 61 of the Federal Rules of Civil Pro- cedure and well-recognized principles governing ap- pellate review.” I. PALMER V. HOFFMAN DOES NOT COMPEL EX- CLUSION OF A DEFENDANT’S BUSINESS RECORDS WHEN OFFERED AGAINST IT, BECAUSE SUCH REC- ORDS DEAL WITH THE ACTIVITIES OF CO-DE- FENDANT COMPETITORS. The court below held that “writings dealing with the pricing and marketing policies” of a defendant 10 Paterson v. United States, 222 Fed. 599, 640-41 (CCA 6th 1915), cert. denied, 238 U.S. 635; Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co.. 18 F. 2d 934 (CCA 2d 1927): Cub Fork Coal Co. v. Fairmont Glass Co., 19 F. 2d 273 (CCA 7th 1927). 11 American T_bacce Co. v. United States, 147 F. 2d 93, 118 (CCA 6th 1944): Johnson v. J. H. Yost Lumber Co., 117 F. 2d 53, 59 (CCA 8th 1941). 12 United States v. General Motors Corp., 121 F. 2d 376, 409 (CCA 7th 1941), cert. denied, 312 U.S. 618; United States v. United Shoe Machinery Corporation. 89 F. Supp. 349, 354, (D. C. Mass. 1950). 13 Michelson v. United States, 335 U.S. 469, 487 (1948), Mr. Justice Frank- furter concurring. 14 DeYoung v. Campbell. 151 Wash. Dec. 1, 7: 315 P. 2d 629, 633 (1957). (“In this state, the ruling of the trial judge in admitting or excluding such records [under the uniform business records as evidence act] is given much weight and will not be reversed unless there has been a manifest abuse of discretion.” ) National Surety Corporation v. Bellah, 245 F. 2d 936, 941 (CCA 5th 1957): (“presiding as we do, to administer justice, we should hesitate long either in es- tablishing, or in acquiescing in any new rule which bars the receipt of credible, relevant, probative evidence bearing directly on the truth of a significant issue.” ) Duff v. Page, 249 F. 2d 137, 139-40 (CCA 9th 1957) (“Courts of review have a higher function than to be ‘impregnable citadels of technicality.’ ”) 13 other than the one that made them “are not busi- ness records,” because they relate “to some inci- dent, circumstance, or activity outside that business . notwithstanding it may have been made in keeping with systematic and routine procedures, and concerns a matter of importance to the busi- ness.” (Opinion, infra, p. 40-A). The direct and only relevant authority for its holding is language of Palmer v. Hoffman.” The court below recognized that the fundamental ruling of the case was that business records are admissible because of the fac- tual probability of trustworthiness arising out of all of the circumstances of the purpose and manner of making the record. It totally ignored the fact that Palmer v. Hoffman held a self-serving statement was properly excluded by the trial court. “In [Palmer v. Hoffman], an employee’s statement, offered in evidence on behalf of (not against) his employer, was held inadmissible under the similarly worded federal staute, be- cause the alleged ‘course of business’ was such as obviously to make for (not against) untrust- worthiness.’ In this case, the employee’s written statements were offered against (not for) respondents and were prepared for use in respondents’ business." 15 The court also cited Clainos v. United States, 163 F. 2d 593 (App. D.C. 1947). The court there held it error but not prejudicial error to have admitted a police record of convictions in a criminal action, because: (1) a special statute governed proof of convictions; (2) the police record was not properly authenti- cated as a business record, and (3) the police record did not possess intrinsic reliability because convictions are the business of the courts and not the police. 16 Slifka v. Johnson. 161 F. 2d 467, 469 (CCA 2d 1947), cert. denied, 332 U.S. 758. Frank, Circuit Judge, concurring. His comment is specially pertinent, since he wrote the Circuit Court decision in Palmer v. Hoffman, which was affirmed by this court. Pek lis v. Trans-continental & Western Air, 187 F. 2d 122, 130 (CCA 2d 1951), cert. denied, 341 U.S. 951, points out that introductien of documents against the maker is a proper circumstantial fact to be taken into account, since it “tends to show that they were not contrived by the entrant for litigation.” 17 The type of communication that has “the highest validity” as evidence, United States v. Corn Products Refining Co., 234 Fed. 964, 978. (D.C. N.Y. 1916). “It is hard to imagine” better “first-hand information of what the parties did and intended” United States v. Hartford-Empire Co. 46 F. Supp. 541, 553 (D.C. Ohio 1942). 14 They were not self-serving statements made for use in litigation. As a factual matter, the court’s ruling below flies in the face of economic reality and the testimony of all of the witnesses of the actual operation of the petroleum business. It was undisputed that each of the respondents —as a vital, necessary and regular part of its own business—regularly investigated the pricing and marketing policies of the other respondents. “T think it is imperative that we all keep up with competition. Vie have to know what compe- tition is doing. Certainly, I don’t think we would stay in business long if we didn’t.” (R. 4512) “I was working for Richfield, and as such I tried to be aware, as much as possible of com- petitive stations.” (R. 5570) “Competitive conditions in an area have a direct effect on a station’s gallonage.” (R. 6026) ‘“‘We were supposed to be aware of the com- petitive conditions at all times in our territory.”’ (R. 5562) ““Do you sell oil in the regular course of business?’ ‘Yes.’ ‘Well, do you take your surveys or do you ask for these reports in the regular course of business?’ ‘Yes, from time to time we do.’”’ (R. 3872). The decision below is as contrary to legal princi- ples as it is contrary to actual practice in the mar- ketplace. In the identical context of an anti-trust case, the Seventh Circuit held that such reports were business records under the predecessor of the present statute. United States v. General Motors, 121 F. 2d 376, 409 (CCA 7th 1941), cert. denied, 314 v. 8S. 618. In the same anti-trust context, United States v. United Shoe Machinery Corporation, 89 F. 15 Supp. 349 (D.C. Mass. 1950) held that the Business Records Act was broad enough to encompass what business practice made a business record. As a purely legal proposition, Pollack v. Metropolitan Life Insurance Co., 138 F. 2d 123 (CCA 3rd 1943), held a child’s birth certificate admissible under the Act to show the parent’s age, even though there was no requirement that his age be set forth or indeed had any connection with the birth of the child. The reasoning of the court below would exclude all medi- cal, hospital, accountant, advertising agency or sim- ilar records, for surely such records relate primarily to the business of the patient, client or customer and not to the business of the record-maker. II. EXCLUSIONARY RULES OF EVIDENCE LIMITING THE TYPE AND NATURE OF DOCUMENTS ADMISSI- BLE UNDER THE BUSINESS RECORDS ACT. By excluding all evidence which connected the practice of one company with another and the knowledge of each of the practices and policies of the other, it is obvious that no evidence directly relevant to the issue of a conspiracy could be ad- missible. The court below might well have concluded its opinion. The court, however, stated a number of other exclusionary rules that would cover any docu- ments it might not have included within the first class. 1. Inadmissibility of writings giving reasons for ac- tions of others. The court below held that reasons given for eco- nomic actions of others were not proper subjects for expert opinion, and hence any document stating why another company or non-customer bought or 16 sold, fixed a price or refused to buy or sell could not be a business record as a matter of law. Once again, the court below cited no relevet authority for its ruling’* and ignored the fact that the very inquiry of the trial was to show the eco- nomic effect of, reason for and knowledge of each respondent of various marketing and pricing poli- cies. The expression of opinion—the reason—was it- self the operative fact to be proved and was the pur- pose of offering the document. This and all other courts have always held that the reason for or prob- able consequences of economic action in the market- place is admissible in an anti-trust action.” It is not rational or logical to say that economic reasons for action in the marketplace reported by employees of a participant in the market are in- herently untrustworthy because such reasons “do not call for professional or scientific knowledge or skill” (Opinion, infra, 41-A), and hence inadmis- sible against the person making and keeping such repor's. 2. Writings attributing information to others not under a legal duty to furnish such information. The court below held that writings reporting in- formation obtained by a field representative from 'S Tt cited many cases holding expert opinion admissible under the Act. '* Lawlor v. Loewe, 235 U.S. 522 (1914) (reasons given by customers of the plaintiffs dealers for refusals to deal). Anchor Cooperative Serum Ass'n. v. Anchor Serum Co. 153 F. 2d 907, 912 (CCA 7th 1946), cert. denied, 329 U.S. 721, (reasons plaintiff's druggists gave why they couldn’t sell plaintiff's serum). Greater New York Live Poultry C. of C. v. United States. 47 F. 2d 156, 159 (CCA 2d 1931), cert. denied, 283 U.S. 837, (reasons “given by receivers for their refusal to sell to recalcitrant marketmen.” ) In that case, as in this, the defendants sought to exclude all evidence entirely rather than a limiting instruction. The Second Cirenit, unlike the court below. would not elevate a deliberate or inadvertent failure to utilize proper procedures into reversible error of the trial court. Evidence so admitted may be considered for its probative weight by judges or juries. The trial court cannot be put in error for not restricting the effect of evidence absent a request to do so. Lauderdale County t. Kittel, 229 Fed. 593, 602 (CCA 5th 1916); Tevis v. Ryan, 233 U.S. 273 (1914). 17 Service station operators being supplied by another company were inadmissible because the “information comes to the entrant or maker from unauthorized persons, * * * not because it contains hearsay.” (Opinion, infra, p. 42-A). The court below cited three cases nominally sup- porting this conclusion, recognizing that two cir- cuits held squarely to the contrary.” United States v. Grayson, 166 F.2d 863 (CCA 2nd 1948), a crim- inal case," however, is the only case supporting the court’s ruling.” United States v. General Motors Corp., 121 F. 2d 376, 409 (CCA 7th 1941), cert. de- nied, 314 U.S. 618, an anti-trust case, held admission of such evidence “was not improper,” “treated either in isolation or in its entirety.” The ruling is, moreover, plainly in conflict with the second paragraph of § 1732, which provides that “lack of personal knowledge” by the maker “shall not affect its admissibility,” but merely go to the weight of the evidence.” The ruling below that “hearsay” shall henceforth go under the alias of “unauthorized persons” is either pointless or destructive of orderly trial pro- cedure. The ruling must require the offering party to show personal knowledge of the party making 2° Opinion, infra. p. 42-A, n. 32). *! Admission of such evidence at the behest of the prosecution might raise grave constitutional questions. See Frank, Circuit Judge, concurring, in Slifka v. Johnson, 161 F. 2d 467, 470, note 4 (CCA 2d 1947), cert. denied, 332 U.S. 758. 22 In Clainos v. U. S.. 163 F. 2d 593 (App. D.C. 1947), another criminal case, the language relied upon was, at best, dicta. In Gencarella v. Fyfe, 171 F. 2d 419 (CCA Ist 1948), the document offered was conceded not to be a business record. Pollack v. Metropolitan Life Ins. Co., 138 F. 2d 123 (CCA 3d 1943) expressly held to the contrary in deciding that a father’s age could be proved by his child's birth certificate, even in the absence of any duty whatsoever to enter his age upon the certificate and no apparent showing of who furnished such information. *3 Wheeler v. United States, 211 F. 2d 19, 23 (App. D.C. 1954), cert. denied. 347 U.S. 1019. United States v. Costello, 221 F. 2d 668, 678 (CCA 2d 1955), aff'd. 350 US. 359. (“We conduct our most serious affairs on the strength of [hearsay]. It would be impossible to carry on a day’s business without it.”) 18 the record or permit the inquiring party to examine on voir dire to show that the source of information might have been an unxuthorized person. The statute declaring that lack of personal knowledge shall not affect admissibility thus becomes the ve- hicle for interminable courtroom inquiry into that which the statute declares irrelevant insofar as ad- missibility is concerned. The court ignored the fact that the salesmen were authorized and directed to obtain and report just such information, or at least to obtain information that could only come from a competing company or non-customer service station. How, for example, could one company determine upon an allowance to be made unisss it inquired of a non-customer the price that it had to meet? The respondents them- selves introduced numerous exhibits attesting to the fact that such information was vital “if we are “o retain our business,” necessary to determine dealer assistance,” taken into account when new outlets were under consideration,” and in efforts to solicit new business, including petitioner himself.” In all of these situations and many more the infor- mation employees were authorized and directed to gather and upon which the company necessarily re- lied could come only from what the court below held were “unauthorized persons.” Respondents made not the slightest effort to prove that any in- formation reported was unauthorized or to prove 24 Richfield, Ex. A-185, a price and price sign survey with a direction to meet “competition from other majors.” 25 Texas, Ex. A-62, a statement of policy of when and how dealer assistance was to be given-——requiring investigation of competitive conditions before allow- ance is made and withdrawal as soon as competitive conditions permit. 6 Standard, Ex. A-77, A-83, A-119 and A-123. reporting upon gallonage and contractual arrangements of nearby dealers and solicitation by other defendants. 27 Union, Ex. A-239, stating the discount Moore then had with Associated and the allowance offered by Standard. That information came either from petitioner or a Union salesman. (R. 6301-02). 19 any such exhibit was erroneous. Respondents never asked that any such documents attributing infor- mation to “unauthorized persons” be limited to the fact that the statement was made and reported. Failure to request an instruction limiting the docu- ment to the purpose for which it was offered can- not make a business record inadmissible. Surely, a document showing the source of mar- ket information is at least as reliable and trust- worthy as one similarly prepared containing the Same information acquired from totally unknown sources. 3. Stamping, initialing and filing must be required, as distinguished from authorized, practice. The court below recognized that some, if not all, of the exhibits were established as having “been prepared in the course of the writer’s duties as an employee of the company” and that “a good many” have stamps or initials showing receipt and cir- culation among company officials. Even these docu- ments were held inadmissible unless it was also es- tablished “that the internal procedures of the com- pany required” each document to be so transmitted, stamped and filed “as a matter of routine.” (Opin- ion, infra, p. 43-A)* The distinction here made is so finespun as to be almost unintelligible. It holds that documents proved to be made, transmitted and stamped in accordance with the regular practice of the company must be further supported by a show- ing that each step in the process was also “re- 28 The routine nature of stamping documents, circulating and filing them was established generally during the course of authenticating the first few of a series of documents bearing such stamps. This testimony was not usually repeated for other subsequent documents bearing the same or like stamps and showing the same or like initialing. 20 quired,” as distinguished from merely “author- ized.” 4. Casual and informal matters are *‘self-evidently”’ not required routine. Not satisfied, perhaps, with the merits of exclud- ing the documents on such a ritualistic basis, the court below ignored the evidence and held it “self- evident” that the routine described by the witnesses was non-existent, because they “were casual and in- formal in nature” and were “seeking or providing information of a kind which could be, and no doubt often was, communicated by telephone” or in con- ference.” (Opinion, infra, p. 43-A) The informal nature of the writing was recognized by the court as being no bar to admissibility." Hence, its holding is that writings disclosing the casual and informal day to day conduct of a business are inherently un- trustworthy—directly contrary to the genesis of the Business Records Act, and Palmer v. Hoffman.” ». Adherence to a regularly established business pro- cedure for contemporaneous recording. Most documents offered in evidence showed on their face that they were reporting an act, trans- °° Petitioner did establish the: “when documents are sent through some sort of chain of command or some sort of series of people for their notice and stamp” it was “just as a part of our regular business.” (R. 3915) *® Stenographic transcriptions of telephone conversations regularly made as a matter of practice—not duty—in a Government office are admissible as Govern- ment records under 28 USC § 1733 (a). Connelly v. United States. 249 F. 2d 576. 587-88 (CCA 8th 1957). *1 Opinion, note 35, infra, p. 44-A, citing Smith v. Bear, 237 F. 2d 79 (CCA 2d 1956). 82 The court itself started from the premise that “the probability of trust- worthiness * * * lies in the fact that they are routine reflections of the day-to-day operations of the business in whose files the memoranda and reports are found.” Petitioners cannot explain—nor perceive any rational explanation—of how the fundamental basis for admission of business records becomes a rule of exclusion, The court below did not purport to reconcile the patent inconsistency between its statement of the rule and its application. Me iW i Ripe Ba om Be, ae eM telat Me tie Oe ON ay eat Mag | hana CTS | DY ee ly se sD DIP ET ae TR oY eae PEE Tom te igh, at? ee AE Ae P 4 hs. A, 7 iat Ae: OR oP peti 21 action, occurrence or event contemporaneous with their date or an existing policy or practice bearing upon a matter being reported. Few objections were made by respondents on that point.” As the court below subsequently pointed out, it is not error to admit a writing in evidence where some entries were made several months and others an unknown time after the event in the absence of “evidence to show that this lag introduced inaccuracies or uncertain- ties as to * * *reliability.” (Opinion, infra, p. 09-A). As in all other cases respondents failed to offer any factual attack upon the authenticity or accuracy of any document upon this basis, despite ample opportunity to do so. Ill. ACTS, DECLARATIONS ANI» ADMISSIONS The court below held all inter-office communica- tions were inadmissible, because: (1) absent dis- closure, there is “no room for application of the rule that the statement is the principal’s if the agent or employee was authorized to make it to a third per- son” (Opinion, infra, 49-A),** and (2) hence the Statement could only become the principal’s by adoption by “its shareholders, board of directors or authorized management officials” ( Opinion, infra, 00-A). The court cited no authority whatsoever for either of its rulings. It erroneously assumed that the governing rule was that relating to admissions against interest rather than the rule admitting acts, “In their Specification of Error (pp. 37-113) respondents list no such pointed objection under the heading “Grounds of Error” for any of the exhibits they discuss in detail. *# This erroneous premise was necessary in view of the overwhelming direct, circumstantial and internal evidence that each such report or letter was made in the usual and ordinary course of the writer's business as a part of his normal duties and hence at least impliedly authorized. 22 declarations and admissions made in the course and furtherance of a conspiracy. For “admissions against interest” disclosure is required, since one can’t admit something against his own interest to himself. For an act, declaration or admission, however, “It is immaterial that the ad- mission, when made in writing, is found in a paper *“ * * not communicated to anyone else.” (Wig- more, 3rd Ed. § 1073(2), Vol. III, p. 90)* Other courts, entirely aside from the rule of dis- closure, hold that an agent’s authority to make a binding admission is co-extensive with his authority to bind his principal to substantive liability.” In the substantive section of its opinion, the court below correctly considered statements made by salesmen and other representatives of the respond- 35 Schine Chain Theatres v. United States. 334 US. 110, 116 (1948) (inter- office memos and letters found in the files of non-party distributors were admi: ible “as declarations” and admissible against defendant, as well, because the distributors were conspirators, even though not parties } American Tobacco Co. v. United States, 147 F. 2d 93, 118 (CCA 6th 1944) (correspondence from field representatives). United States v. General Electric Co.. 82 F. Supp. 753, 902-03 (D.C.N.]J. 1949); Patterson v. United States, 222 Fed. 599, 636-637 (CCA 6th 1915), cert. denied, 238 U.S. 635, (reports of salesmen and sales agents to their superiors). Pekelis v. Transcontinencal & Western Ais, 187 F. 2d 122, 128 (CCA 2nd 1951), cert. denied, 341 U.S. 951, (admissibility depends on whether the writing is “inconsistent with the position taken by the defendant during the trial.” } See also Selber v. Springbrook Trout Farm. 19 Wash. 49, 52 Pac. 238 (1899) a statement by the defendant's foreman first produced at the trial was the de- fendant’s admission; Skibsaktieselskapet Bestum II] v. Duke. 131 Wash. 467, 479- 81, 230 Pac. 650. 655 (1924) where it was stipulated that documents were sent and received and that copies were deemed originals (as was here stipulated and proved) the documents were admissible, including a resume sent by the principal to the agent of all correspondence between them. 36 Johnson v. J. H. Yost Lumber Co., 117 F. 2d 53 (CCA 8th 1941), (“ordinary incidents” of the job of local yard managers): United States v. Schine Chain Theatres. 63 F. Supp. 229, 238-39 (W.D.N.Y. 1945), (representations by branch and district managers “within the scope of their duties * * * as a natural incident of the office.”): Overfield v. Pennroad Corpvration, 42 F. Supp. 586, 628 (D.C. Pa. 1941). Long before the Business Records Act, this court held that one might prove an agent's authority to do an act or make a declaration “either by the course of the business, or by express authorization.” The United States v. Gooding, 12 Wheat 461, 469 (1827). Slifka v. Johnson, 161 F. 2d 467 (CCA 2d 1947), cert. denied, 322 U.S. 758. 23 ents proved by testimony of persons who heard the statement as “acts and extra-judicial declarations” (Opinion, infra, 34-A), and, of course, did not sus- tain respondents’ arguments that such evidence was improperly admitted.” It is inconceivable that evi- dence of acts, declarations and admission of sales- men may properly be proved by the recollection of witnesses who heard the employee’s statement, but not by a writing prepared by the employee himself. IV. SUBSTANTIAL JUSTICE The Court below reversed solely upon legal grounds barring admission of any of the docu- mentary evidence.* It carefully refrained from dis- cussing authentication, in fact, of any single docu- ment as a Business Record or an admission. Peti- tioner knows of no case where greater care was taken by the trial court or more time devoted by the court, jury and litigants in meticulous authentica- tion of each writing. No case could better illustiate denial of substan- tial justice cont2~; io the purpose of Rules 43 (a) -_———__... *t For example, a service station operator testified: “I asked Mr. Carter [an employee of Standard]. if we took our signs down, when the rest of them would be down. * * * He said they would be down as soon as possible.” (R. 1906). The opinion below itself quotes this testimony, infra. p. 31-A. It was specified as error at p. 30, p. #15 of Respondeats’ Specifications of Error. *$ The few other errors discussed were inconsequential and related only to minor matters to be avoided upon re-trial: A hypothetical question should “be framed to omit this irrelevant factor.” (Opinion, infra, p. 53-A) “Certain events” should not be considered by the expert witness in giving his opinion of value. (Opinion, p. 53-A) Moore's tax returns should not have been admitted insofar as his business income was concerned, because there is no authority for admission of such rec- ords as annual summaries of ledger accounts. But see A.L.I. Mocel Code of Evi- dence (1942) p. 237, (tax returns are against interest and relevant and admissible to show income at least to the extent that it requires payment of tax) and Trethe. way v. Green River Gorge, Inc., 17 Wn. 2d 697, 730, 136 P. 2d 999, 1013 (1943) (tax returns were not an acknowledgement of a barred debt, but were relevant to show a continuing contract). 24 and 61.” Petitioner, a service station operator whose valuable business was destroyed in 1952 by respondents, is saddled with $23,729.03 in costs and relegated to a re-trial six years later with all of the documentary evidence inadmissible and witnesses possibly dead or out of reach’ before retrial can be had. Petitioner has been penalized by respondents’ ob- jections to documents as admissions and compliance with the trial court’s requirement of the extra proof necessary under the Business Records Act “to make doubly sure that there would be a legal authentica- tion.” (infra p. 7). If the lower court’s legal obstacles to the admis- sibility of evidence stand unreversed, then no anti- trust case“ can be tried within the confines of the Ninth Circuit. If these legal obstacles to the admis- sion of evidence are correct, none of the substantial anti-trust cases reaching this court should have been decided adversely to the defendant. *8“When these rules are applied by a court or jury with average power to judge creditability better results are apt to be obtained than by the use of many technical and refined rules that * * * (b) are so difficult in application, that their method of application can be drawn in question by an appellant with a fair chance of securing a reversal that has no relation to the merits involved.” Moore's Federal Practice © 42.02 (3). 4° Under Washington law respondents may execute, levy and buy up _peti- tioners cause of action unless he is willing and able—after destruction of his husiness—to pay respondents all of the costs engendered by respondents sterile hermaneutics on the law of evidence. Johnson v. Dahlquist. 130 Wash. 29, 225 Pac. 817 (1924). Any appellate review that adopts such technicalities or re- wards such trial procedure must be justified by compelling fundamental reasons of justice and fair play. 41 Or similar mail fraud or tax fraud cases involving masses of documentary evidence can be tried or if tried be free of error. Mvore vr. United States No. 16804 (CCA Sth) decided March 18, 1958, unreported to date. Summary copy of tax return prepared by agent from pencilled return shown by taxpayer and an un- signed “return accountant testified appeared to be the copy he had prepared— both authenticated in part by a “routine serial number” stamp. *? Thus, in Hartford-Empire Co. v. United States. 323 U.S. 386, 401 (1945) the court affirmed the judgment against the Lynch Corporation over its conten- 25 It would border on malpractice for defendants’ at- torneys to ever stipulate to the admission of any documentary evidence, all of which is inadmissible under the lower court’s decision.*® No private plain- tiff*—probably not even the Government—could af- ford the time and money required to surmount the exclusionary rules adopted below if that should be possible at all. Few judges could survive the moun- tains of minutiae that would result if anyone at- tempted to do so.* tion that the only evidence against it were memos exchanged by officers of other defendant corporations. (App. Brief. No. 7. p. 3) United States v. National Lead Co.. 332 U.S. 319, 327 (1947) affirmed the judgment against duPont, its principal basis of appeal being that the only evi- dence connecting it to the conspiracy was one or two incompetent communica- tions between or within branches of other defendants. The nature of these letters and inferences drawn from them are set out by the District Court (63 F. Supp. at pages 520-531). This court merely referred to these pages in stating “we find in those facts the support necessary for the conclusion reached.” ) Use and reliance upon such evidence in the de novo hearing of these equity cases necessarily falls within the “rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity” referred to in Rule 43(a) F.R.C.P. By the express terms of Rule 43(a) like evidence is made admissi- ble in all other cases. In United States v. Socony-Vacuum Oil Co.. 310 US. 150, 254 (1940) this court affirmed conviction of R. H. McElroy, J:.. over his contention that several memos and an inter-office letter were not sustantial competent evidence against him. *8In a cryptic aside, the court below indicated that all of the evidence offered might be admissible without any foundation evidence at. all. (Opinion, infra, p. 49-A, note 39). Petitioner cannot conceive that a court of appeals would callously play such an ironic jest upon petitioner as to reverse the judgment because respondents required him to unnecessarily prove a foundation for the documentary evidence as business records and as acts, declarations and admissions. 44“The treble damage action is a sanction allowed to a private litigant be- cause of the public interest.” Karseal Corporation v. Richfield Oil Corporation. 221 F. 2d 358, 365 (CCA 9th 1955). “The treble damage was intended * * * to aid in achieving the broad social object of the statute.” Fanchon & Marco v-. Paramount Pictures, 100 F., Supp. 84, 85 (S. D. Cal. 1951) aff'd. 215 F. 2d 167, cert. denied, 348 U. S. 912. *Tt is possible that the court below deemed its ruling to be an expedient way to dispose of the big case as discussed in the Prettyman Report. If so, its ruling is contrary to the conclusions of that report. A trial judge must have more, not less, power in deciding what is relevant, material. admissible or excludible. See United States v. Apuzzo, 245 F. 2d 416, 420-21 (CCA 2d 1957). cert. denied, 355 U.S. 831. 26 CONCLUSION If the Business Record Act is to have any utility, trial judges’ effective control of their courtroom and cases, or the anti-trust laws any enforcement, this court should grant certiorari and reverse the decision below. Dated at Seattle, Washington, May 2, 1958. DONALD MCL. DAVIDSON, Esq. WILLIAM H. FERGUSON, CHARLES S. BURDELL, Attorneys for Petitioner 1012 Northern Life Tower, Seattle Washington No. 14,927 IN THE UNITED STATES COURT OF APPEALS For the Ninth Circuit STANDARD OIL COMPANY OF CALIFORNIA, a corporation; SHELL O1L CoMPANY, a cor- poration; THE TEXAS COMPANY, a corpora- tion; RICHFIELD OIL CORPORATION, a cor- poration; TIDE WATER ASSOCIATED OIL CoMPANY, a corporation; and UNION OIL No. 14,927 CoMPANY OF CALIFORNIA, a corporation, Nov. 6, 1957 Appellants, vs. GEORGE F. MOORE, Appellee. Appeal from the United States District Court, West- ern District of Washington, Northern Division. Before: Stephens, Chief Judge, and Pope and Ham- ley, Circuit Judges. HAMLEY, Circuit Judge: This is a treble-damage antitrust suit, brought by George F. Moore, a former Seattle gasoline service station owner and operator, against seven major oil companies.’ Charging defendants with the de- ‘Standard Oil Company of California (Standard), Shell Oil Company, Incor- porated, a Virginia corporation, The Texas Company (Texas), Richfield Oil Cor- poration (Richfield), General Petroleum Corporation (General). Tide Water Associated Oil Company (Tide Water), and Union Oil Company (Union). Prior to trial, Shell Oil Company (Shell), a Delaware corporation, which, on September 30, 1949, succeeded Shell Oil Company, Incorporated, was made an additional party defendant. At the close of the trial, the court granted a motion for a directed verdict as to Shell Oil Company, Incorporated, and a judgment of dismissal as to this defendant was entered. 1A 2A struction of his business, plaintiff sought treble damages in the amount of $285,000. He also asked for a decree requiring defendants to divest them- selves of all interest in, or control of, retail service stations in the competitive area. Attorneys’ fees in the sum of $40,000 were requested. After a trial which lasted more than three months, the jury returned a verdict of $80,000 tre- bled, or a total of $240,000. Judgment in this sum, and for attorneys’ fees in the amount of $40,000, was entered on June 24, 1955. The prayer for equita- ble relief was denied. Defendants appeal. Under five general specifica- tions of error, they question the sufficiency of the evidence to support the verdict, the manner in which the coconspirator rule was applied, the admissibility of some of the evidence, the failure to give certain instructions, the giving of other instructions, and the failure to set aside the verdict because of as- serted extraneous influences upon the jury. I BACKGROUND OF THE CASE Each of the appellants is engaged in the business of producing and refining oil, and in transporting and marketing gasoline, oil and other petroleum products, in Washington and other states. The pro- duction and (at the times here in question) refining operations take place in California. Transportation to the state of Washington is generally by ship tanker. The gasoline is received by appellants at their respective marine storage terminals, and from there it is distributed to bulk storage plants located at convenient marketing centers. Distribution from these terminals and plants falls generally into four categories: Sales to independent 3A service station dealers; retail sales at company- operated stations; sales to secondary wholesale dis- tributors or jobbers; and sales to large commercial, agricultural, and industrial consumers. Except for appellants, only one company transports gasoline into the Puget Sound area of Washington, and then only in relatively small amounts. During the period in question, there was no well production of petro- leum products in the state of Washington. In 1939, Moore opened a retail gasoline service station and truck service station at 1961 Fourth Av- enue South, in Seattle. Except for eight months in 1944, when he served in the army, Moore oper- ated this station continuously until August, 1952. Throughout this period, Moore obtained his gaso- line and other petroleum products from Tide Water. Moore was an extremely competitive dealer. While Tide Water required him to post retail gaso- line prices on his pumps, it was his practice to give discounts which resulted in a net gasoline price lower than the posted price. Generally speaking, this discount, which he gave to all customers, was three cents a gallon. Moore’s business was successful from the begin- ning. This was due to his pricing policy, the ex- cellence of his location, the efficiency of his opera- tion, his ability as a salesman, and perhaps other factors. His business grew steadily, year by year, until he became the largest Tide Water dealer in the state of Washington. Eight employees were re- quired to operate the station. By 1951, his annual gasoline sales exceeded 1,600,000 gallons. Commencing in 1950, however, disagreements de- veloped between Moore and Tide Water. The nature of these disagreements will be discussed at a later point in this opinion. Late in 1951, Moore began 4A looking around for another source of supply. He had conversations with representatives of Standard and General. At that time, however, both of these appellants declined to deal with Moore. Negotia- tions between Moore and representatives of Union, begun in October or November, 1951, were still in progress in May, 1952. On May 2, 1952, Moore received a written notice from Tide Water, canceling its contract with him, effective July 30, 1952.’ He continued his negotia- tions with representatives of Union during the pe- riod from May 2 to July 30, 1952. In June or July, 1952, Moore also had several conversations with representatives of Richfield. Before the end of July, however, Richfield indicated its refusal to deal with Moore on the basis which he proposed. Tide Water supplied no gasoline or oil to Moore after July 30, 1952. By utilizing the large capacity of his storage tanks and obtaining relatively small quantities of gasoline from independent sources, Moore was able to operate his service station for a few days after that date. During this period, nego- tiations continued with Union, and were reopened with General. Moore also made a “last-minute’”’ ef- fort to obtain gasoline from each of the other ap- pellants. As events turned out, Moore did not obtain a con- tinuing supply of gasoline and diesel oil from Union, General, or any other source, following termination of the Tide Water supply on July 30, 1952. When Moore’s stored supply became exhausted about the middle of August, 1952, he closed his service sta- 2We use the term “contract” to include the entire contractual arrangement between Tide Water and Moore concerning the supply of petroleum products. Actuaily, there were five written instruments, including two leases, a petroleum products sales agreement, a merchandise agreement, and a delivery allowance letter, all of which were referred to and canceled in Tide Water's notice to Moore. oA tion. The complaint in this action was filed on Oc- tober 4, 1952. The theory of the action is that Moore was re- fused a supply of gasoline pursuant to, and in fur- therance of, an agreement, combination, or con- spiracy in restraint of, or to monopolize, interstate trade and commerce, entered into by two or more of the appellants.’ Jurisdiction to entertain the action and grant the requested relief is asserted under sev- eral sections of the Sherman, Clayton, and Robin- son-Patman Acts (15 U.S.C.A. §§ 1, 2, 13, 13a, 14, 15, 18, and 26). In Moore’s first amended complaint, the alleged unlawful agreement, combination, or conspiracy is pictured as one to accomplish a dual purpose through multiple lines of action. It is asserted that the general objectives were to control, fix, and regu- late gasoline prices, and to monopolize, control, and channelize the distribution of gasoline.‘ The plans and programs adopted in furtherance of these ob- jectives, Moore alleges, relate both to the refining and to the distribution of gasoline. Concerning the refining of gasoline, these plans and programs, according to the complaint, called for self-imposed controls and restrictions upon ap- ll * The term “conspiracy” is not used in the complaint. The facts therein alleged, however, are comprehensive enough to encompass conspiracy as well as unlawful agreement or combination. A conspiracy is a joint undertaking having an unlawful purpose, arising out of agreement, and usually extending over a period of time. U. S. v. Kissel, 218 U. S. 601: Duplex Printing Press Co. v. Deering, 254 U. S. 443, 465. See, also, Piquett v. United States (7 Cir.), 81 F. (2d) 75, 80. The briefs of all parties deal with the question of “conspiracy” as an issue in the case. Likewise, the trial court instructed fully, and without any obpection being inter- posed, on the meaning of the term “conspiracy,” and the application of the law vf conspiracy to the facts of this case. *In the complaint, “gasoline” is defined to include diesel fuel. 6A pellants’ own activities.* With respect to the distri- bution of gasoline, it is alleged that these plans and programs included not only self-imposed controls and restrictions, but also the imposition of various forms of economic pressure and coercion upon wholesale distributors and retail dealers.‘ As compared tu the sweep of these allegations, the averments concerning the way in which the as- serted unlawful agreement, combination, or monop- oly injured Moore raise a relatively narrow issue. It is not alleged that during the time he was engaged in business Moore’s profits or costs were affected in any manner by reason of the production, refining, transportation, storage, marketing, or pricing poli- cies referred to above. The way in which Moore was damaged, according to the complaint, was in being driven out of business at a time when the business was prospering. This was accomplished, it is al- leged, by the practice of one of the forms of eco- * Self-imposed controls and restrictions pertaining to the refining of gasoline included, according to the compiaint, the use of private committees to determine and impose quotas of crude oil to be produced; the purchase of gasoline pro- duced by independent refineries and producers; the use of price-posting systems to fix and maintain uniform and noncompetitive prices to be paid for crude oil purchased from independent companies; the exchanging of crude oil among them- selves; and the pooling of transportation facilities. ® Self-imposed controls and restrictions pertaining to the distribution of gaso- line included, according to the complaint, the use of price leadership and price- posting systems for the purpose of manipulating and stabilizing prices; the ex- change of gasoline supplies among appellants; and the sale to retail dealers, for resale under their respective brand names, gasoline actually produced and refined by other appellants. The forms of economic pressure and coercion imposed upon wholesale distributors and retail dealers included, it is alleged, the control and limitation of gasoline supplies, or the cutting off of supplies, of independent whole- sale distributors and retail dealers who do not conform to appellants’ joint price policies; refusal to permit such distributors and dealers to advertise the type or brand of gasoline sold; utilization of contract forms and other devices which per- mit appellants to control, adjust, and change retail prices; refusal to sell gasoline to wholesale distributors and retail dealers who will not conform to the joint price policies, or who desire to resell under low cost and cheaper methods of distribu- tion, such as self-service gasoline stations; the artificial decreasing or depressing of gasoline prices, and the creation of so-called “price wars”; at times the pro- hibition of the use of “price signs” by retail dealers, and at other times the in- sistence that such signs be displayed; the refusal to sell gasoline to dealers who purchase gasoline from any other appellant; the acquisition, operation, and con- trol of retail service stations; and the practice of discriminating between pur- chaser as to the price of gasoline. a i { | TA nomic pressure contemplated by the asserted un- lawful agreement, combination, or conspiracy— namely, concerted refusal to deal.’ Appellants filed separate answers in which they denied the allegations of the complaint concerning the alleged - greement, combination, or conspiracy, concerted refusal to deal, and monetary loss. The cause came to trial on the issues raised by these pleadings. As before noted, the jury verdict was for Moore, and the judgment conforms to the ver- dict. II SUFFICIENCY OF THE EVIDENCE—IN GENERAL Before reaching any question as to the amount of damages sustained by Moore, the jury had to find in his favor on two other questions of fact. One of these is whether Moore was unable to obtain a sup- ply of petroleum products which would permit him to remain in business.* The other is whether the inability to obtain such a supply, if this was the case, resulted from an agreement, combination, or conspiracy of the kind alleged. The verdict represents a jury finding for Moore on both of these questions. Appellants’ first speci- fication of error challenges the legal sufficiency of the evidence to support either of these findings. The evidence is legaily sufficient to support a 7 Specifically, it is alleged that appellants concertedly refused to deal with Moore because he would not adhere to appellants’ “artificial price fixing and price maintenance programs.” Another reason attributed to appellants for their asserted concerted refusal to deal was appellants’ desire to prefer and favor service station outlets wmch they individually owned or controlled. 8 This was the only damage asserted to have resulted from the alleged agree- ment, combination, or conspiracy. If Moore did not prove such resulting damage, he would not be entitled to judgment, even assuming the existence of an unlawful agreement, combination, or conspiracy Letween two or more of the appellants. : proper foundation had been laid for the introduc- tion of certain business records, where a partner had admitted that they were “the books” of the partnership. United States v. General Motors Corporation (7 Cir.), 121 F. (2d) 376, 409, cert. denied, 314 U.S. 618, comes the closest to supporting appellee’s po- Sition. It is stated in that opinion that intracompany reports are admissible, under the predecessor busi- ness records act, “as recorded acts or transactions made in the regular course of business.’’ The court went on to say however, that most of the errors as- signed in connection with this class of evidence were 46A not argued, and that the appellants admitted that none of such evidence was prejudicial in and of it- self, though its cumulative weight might influence the jury. The court expressly stated that the ap- pellants “could not possibly have been prejudiced or injured” by the reception of such evidence, either in isolation or in its entirety. In discussing the admissibility, under § 1732, of the exhibits introduced in the case before us, it has not been practical to deal individually with the hun- dreds of items which were offered and received. It has been our purpose, however, to outline the fac- tors to be considered in ruling upon these or other like exhibits offered on a different record at a new trial. In our view, there was an inadequate foundation for the admission, as business records, of most of these exhibits. The objections which appellants voiced to the in- troduction, under § 1732, of the exhibits in question were sufficient to present all of the considerations which have been discussed above. That the introduction of these exhibits was preju- dicial to appellants is not denied. All of the 46 ex- hibits mentioned in the specifications of error were referred to, and many were quoted, in the argument to the jury made on behalf of appellee. A great many additional exhibits of this kind are referred to in appellee’s brief as providing evidence of an un- lawful agreement, combination, or conspiracy. If none of these inadmissible exhibits had been received, the evidence would have been insufficient to support the jury finding that there was such an unlawful agreement, combination, or conspiracy. If we were able tc say that this evidence would not be admissible on any record which could be made, 47A and is irreplaceable, we would be warranted in di- recting dismissal of the action. On a new trial, however, a proper foundation may be supplied for the admission of some of these docu- ments, and other admissible evidence may be found in substitution of evidence here found to be inad- missible.” The attainment of substantial justice therefore requires that the action be not dismissed, but that it be remanded for a new trial. See 28 U.S.C.A., § 2106; Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A. Admissibility as Extrajudicial Admissions of a Party-Opponent. Appellee, however, argues that, if these exhibits were inadmissible under § 1732, they were, in any event, properly received as extrajudi- cial admissions of a party-opponent (herein re- ferred to as admissions). To this contention, ap- pellants reply that (1) the course of the trial precludes sustaining the introduction of the docu- ments as admissions; and (2) there was no founda- tion for introduction of the documents as admis- sions. Turning to the first of these points, it is appel- lants’ position that the challenged exhibits were offered and received only on the ground that they were business records admissible under § 1732. The possible admissibility of these exhibits as admis- sions having assertedly not been raised and inquired into at the trial, they should not now, appellants argue, be held admissible on the latter ground. Examination of the record indicates that appel- °6 Some of these exhibits which were admitted to establish the truth of the recitals therein contained (and so were hearsay) may also be admissible on a new trial for limited and nonhearsay purposes, such as to show the orders of a superior, pattern of business conduct, contemporary explanations of ambiguous conduct, notice, or motive. In this event, it would not be necessary to qualify them as busi- ness records, extrajudicial admissions, or under any other exception to the hearsay rule, 48A lants are correct in stating that these exhibits were admitted as business records, and not as admis- sions. Counsel for Moore, on two or three occasions, sought to admit documents of this kind as admis- sions. Each time, the trial court rejected this con- tention, and made it clear that the writings were receivable, if at all, only as records made in the regular course of business. Conforming to this rul- ing, the foundation evidence was directed only to the requirements of § 1732 as a ground for ad- mission.*’ All of the discussion and argument of counsel concerning the admissibility of individual exhibits, with the possible exception noted in the last foot- note, were directed to that inquiry. Likewise, the comments of the court regarding the ground of ad- missibility concerned only that line of inquiry. As a result, the challenged exhibits were received only on the basis that they constituted memoranda or records made in the regular course of business. In view of what has been said, it would be mani- festly unfair for us to now hold ‘hese exhibits ad- missible on a different ground, assuming that the evidence in the record would support such a ruling. Appellants have had no trial court opportunity to inquire into the factual basis for admission of the exhibits on any ground other than that they were business records.“ Upon a new trial of this action, Moore may seek “tT There is one possible exception to what has just been said. This concerns Plaintiff's Exhibits 28-A, 28-C, 29-E, and 32-A. The witness who gave the addi- tional testimony concerning these exhibits testified that they had been prepared in \ssociated’s San Francisco office, and that he had no knowledge of the procedure tollowed. Coneeding that, as to these exhibits, a foundation for their admission as luesiness records had not been established, counsel for appellee reoffered them only us against Associated, and on the theory that they were admissions. We have failed to find, in this voluminous record, where this reoffer of these exhibits was acted pon, ‘S See Shepard v. United States, 290 U. S, 96, 103; 1 Wigmore, Evidence (3d ed. 1940), 320, note 14. 49A introduction of some or all of these documents as admissions. We therefore consider it appropriate to state the principles to be applied in the event this effort is made. We speak here noi of the foundation which must be laid to establish the authenticity and genuineness of such writings.* Our purpose is to indicate what showing Moore must make to war- rant a determination that a properly autiienticated document may be received, as an admission, to prove the truth of the statements therein made. Extrajudicial admissions of a part-opponent are receivable as exceptions to the hearsay rule.*’ In our case, the documents consist of the writing of employees and agents of the companies against which, at a new trial, they would be produced. To obtain their reception as admissions, it must there- fore be made to appear that the statements in ques- tion were made or acted upon under circumstances which require appellant corporations to accept re- sponsibility for them as admissions. The writings here in question were, for the most part, prepared and transmitted by employees and agents of the appellant company in whose files the documents were found. However, they were not, with a few exceptions, communications to persons out- side such company. They were interoffice memo- randa, letters, telegrams, reports, and the like. It follows that there is here no room for application of the rule *’ that the statement is the principal’s if the agent or employee was authorized to make it ‘9 Where a document is not admissible as a memorandum or record made in the regular course of business, its authenticity and genuineness must be established in accordance with familiar rules pertaining to the authentication of private writings in general. See the cases cited in 32 C.J.S.. Evidence, pages 606 et seq., $ 706. “For a discussion of the distinction between extrajudicial admissions and statements of fact against interest, see 4 Wigmore, Evidence (3d ed. 1940) 6, § 1049: McCormick, Evidence (1954) 502, § 239, 546, § 253. 41 Restatement, Agency, § 286. DOA to a third person. A report made by an employee or agent to his principal, and not to a third person, is not, as such, the principal’s statement or extra- judicial admission.” If, however, a corporation, through its sharehold- ers, board of directors, or authorized management officials, vouches for part or all of an employee’s or agent’s statement, then the part vouched for is re- ceivable against the corporation as an adoptive ad- mission. It is not necessary, in such case, to show that the statement was expressly vouched for. If authorized management officials direct that busi- ness be conducted in reliance upon a particular in- tramural statement or report, and it is so conducted without reservation, the company has, by implica- tion, adopted the statement or report, and is charge- able with it as an extrajudicial admission. VI CAUTIONARY INSTRUCTIONS CONCERNING ACTS OR EXTRAJUDICIAL DECLARATIONS OF COCONSPIRATORS As stated in a preceding section of this opinion, evidence concerning the acts and extrajudicial dec- larations of one member of an asserted agreement, combination, or conspiracy are not to be considered as against other alleged members unless there is independent evidence establishing, prima facie, that such others were members of the conspiracy. When evidence of this kind is received, a caution- ary instruction should be given to the jury, to be repeated at the end of the trial, calling attention to the limited effect to be given to such evidence. 42 Lever Bros. Co. v. Atlas Assurance Co. (7 Cir.), 131 F. (2d) 770; Restate- ment, Agency, § 287: Morgan, The Law of Evidence, 1941-1945, 59 Harv. L. Rev. 481, 559: Morgan, The Rationale of Vicarious Admission, 42 Harv. L. Rev. 461, et seq.; Mechem, Agency (2d ed. 1914) § 1784. . | o1A Appellants complain of the cautionary instruction here given, asserting that the jury was not clearly told that, in order to impose liability upon any in- dividual appellant, Moore had to connect that appel- lant with the alleged agreement, combination, or conspiracy, by evidence apart from the acts and declarations of any other appellant. Instead, accord- ing to appellants, the court permitted the jury to determine the complicity of one appellant from evi- dence of the acts and declarations of others. Appellee argues that appellants are giving the trial court’s cautionary instructions a strained con- struction, and that appellants did not, during the trial, point to the asserted defect they now rely upon. Since the case must now be returned for a new trial, it is sufficient for us to say that the caution- ary instruction dealing with this matter should clearly indicate that evidence of the acts and extra- judicial declarations of the agents and employees of one appellant is not to be considered in determin- ing whether another appellant entered into the as- serted agreement, combination, or conspiracy. How- ever, if the jury finds, from substantial evidence independent of the acts and extrajudicial declara- tions of the agents and employees of other appel- lants, that a particular appellant entered into such an arrangement, then the evidence of such acts and declarations may be considered on the question of whether an overt act was committed pursuant to, or in furtherance of, the agreement, combination, or conspiracy.“ 43 hes Mayola v. United States (9 Cir.), 71 F. (2d) 65, 67; Oras v. United States (9 Cir.), 67 F. (2d) 463, 466. See, also, the general discussion of the order of proof and the so-called “rule of convenience,” in Flintkote Company v. Lysfjord, supra. o2A Vil ADMISSIBILITY OF EVIDENCE RELATING TO DAMAGES Appellants question, in several particulars, the admissibility of certain evidence adduced by Moore on the question of damages. Since these questions may again arise on a new trial of this action, we here state our views. The Hypothetical Question as to Good Will Value. It was Moore’s contention that his business had been totally destroyed on August 15, 1952, when he could no longer obtain gasoline. He therefore asked the jury to measure his damages by the market value of the business on that date. Moore owned the land and the other capital assets of the business, and retained them when he went out of business. It follows that the only value which his business had before it was closed that it did not have afterwards was its “going concern” or “good will” value. As one means of proving going concern or good will value, Moore produced the opinion testimony of an expert witness. The hypothetical question asked of this witness included, as one of its assumptions, that in August, 1952, Moore was forty-one years of age, was in reasonably good health, and wanted to continue the management of the service tation. Appellants argue that the question, as so framed, was irrelevant to the issue. We agree. In measuring the value of the good will of such a business, appropriate factors to be con- sidered are: (1) What profit has the business made over and above an amount fairly attributable to the return on the capital investment and to the labor of the owner? (2) What is the reasonable prospect that this additional profit will continue into the fu- , x ~ 4 ra ia ey * o3A ture, considering all circumstances existing and known as of the date of the valuation? See Kimball Laundry Co. v. United States, 338 U. S. 1, 16-17. These are the factors which would influence a pros- pective purchaser. The special value which the busi- ness might have to Moore, or the profit potential of the business beyond that which would be transfer- able to a purchaser, would have no effect on market value of the business.** Upon the retrial, the ques- tion should be framed to omit this irrelevant factor. Appellants also contend that the hypothetical question, as asked, omitted the recital of many fun- damental facts which were in evidence, and as- sumed basic facts contrary to the uncontradicted record. We have no way of knowing what evidence will be in the record upon a retrial, on the basis of which a new hypothetical question may be asked. It will therefore serve no useful purpose to express an opinion as to whether the hypothetical question now before us, measured by the evidence in this rec- ord, is subject to the -riticism leveled at it by appel- lants. In general, it may be said that a hypothetical question should include any undisputed fact which is clearly material and important.’ The parties, however, are often not in agreement as to what facts are undisputed, material, and important. If it is objected that certain facts should be included, it is for the trial judge, in the exercise of his discre- tion, to determine whether the question should be 44 Moore retains his life expectancy and business acumen. Assuming that he is entitled to, and so receives, the market value of the destroyed good will of his business, he can, at least theoretically, do as well with it as he could have done hy continuing in business at his Fourth Avenue South location. 45 Berndt v. Dept. of Labor & Industries, 44 Wn. (2d) 138, 148, 265 P. (2d) 1037, 1043: Starr v. Oriole Cafeterias, 182 Md. 214, 34 A. (2d) 335. Conversely, such a question need not include every fact in the case. Rowe v. Pennsylvania Greyhound Lines (2 Cir.), 231 F. (2d) 922. 925. cert. denied, 351 U. S. 984. o4A reframed to add such facts. Pasadena Research Laboratories v. United States (9 Cir.), 169 F. (2d) 3195, 384, cert. denied, 335 U. S. 853. If the trial judge does not require this to be done, it is seldom that prejudicial error can be said to result. This is because the objecting party can, through cross-examination, expose to the jury the asserted deficiencies of the hypothetical question as asked. Dunagan v. Appalachian Power Co. (4 Cir.), 33 F. (2d) 876, cert. denied, 280 U. S. 606. It is for this reason that it is usually held that de- fects in such a question go not to the competency of the evidence, but merely affect its weight. Per- manente Metals Corp. v. Pista (9 Cir.), 154 F. (2d) 068, 569. : A hypothetical question calling for expert opinion must be based upon facts in evidence. Hupp Motor Car Corp. v. Wadsworth (6 Cir.), 113 F. (2d) 827. There is here less leeway for the exercise of discre- tion, since the determination of whether certain facts are in evidence is not so dependent upon judg- ment factors as the determination of whether cer- tain facts are undisputed, material, and important. Even where it is found that facts assumed in the hypothetical question are not in evidence, however, it is not often that prejudice results. This, again, is because the exercise of the right of cross-examina- tion makes it possible to illuminate any false as- sumptions contained in the hypothetical question.” Qualifications of Expert Witness. The witness from whom Moore’s counsel sought an expert opin- ion as to value of the business was Dr. Henry Burd. 46 Tt should not be understood, from the ivregoing discussion, that it is always necessary to propound a hypothetical question in eliciting the opinion of an ex- pert. The present trend of thinking is that the use of hypothetical questions is not required except in the discretion of the trial judge. See Uniform Rules of Evi- dence, Rule 58; Uniform Act on Expert Testimony, § 9: McCormick on Evidence (1954) 34, § 16. voA Dr. Burd taught marketing at the: University of Washington from 1924 to 1954. Since then, and until the trial, he was engaged in business as a consultant in marketing fields. Appellants concede that Dr. Burd was eminently qualified in many phases of marketing, but argue that he was not qualified by study, training, or experience to state an opinion on the salable value of Moore’s service station. In determining whether a particular witness is qualified to express an expert opinion, the trial court is called upon to exercise a sound discretion. Pollard v. Hawfield (D.C. Cir.), 170 F. (2d) 170, cert. denied, 336 U. S. 909. Whethér the witness has had occupational experience in the particular field embraced by the hypothetical question is a factor to be considered in determining his qualifications. But it is not controlling. The court may find that it is sufficient that such witness is qualified by study, research, and general background, to express an opinion. Empire Oil & Refining Co. v. Hoyt (6 Cir.), 112 F. (2d) 356; 2 Wigmore, Evidence (3d ed. 1940) § 556. Our examination of the record convinces us that the trial court did not abuse its discretion in permit- ting Dr. Burd to express an expert opinion as to the value of Moore’s gasoline service station business. Formula Used to Measure Going-Concern Value. In expressing an opinion as to the going-concern value of Moore’s business, Dr. Burd used a formula which allocated average profit to (1) capital in- vestment, (2) values of personal services, and (3) “good will,” and which capitalized the latter derived figure at various postulated percentages. Appellants state that nowhere did Dr. Burd ex- plain why the formula which he used was reason- able under the circumstanc 2s. Thus, it is contended, 56A his testimony is subject to the same objection which was upheld in Emich Motors Corp. v. General Mo- tors Corp. (7 Cir.), 181 F. (2d) 70, 83, modified on another ground, 340 U.S. 558. Without undertaking to say that the lack of back- ground testimony explaining the formula used by Dr. Burd was a fatal defect, we express the view that it would have been better practice to have such an explanation from the witness. The outline of Dr. Burd’s formula seemed to follow rather closely the prime factors mentioned in Kimball Laundry Co. v. United States, supra. But the jury should have had his reasons for adopting the particular formula and its component factors and assumptions. This de- ficiency can be supplied upon the retrial. Opinion Based upon Developments Subsequent to Valuation Date. The measure of damages which Moore sought to establish was the market value of Moore’s good will as of August 15, 1952. In testify- ing as to such market value, however, Moore and Dr. Burd were permitted to base their respective opinions in part upon certain events, facts, and busi- ness developments occurring subsequent to that date. Appellants contend that this should not have been permitted. We agree. See Ithaca Trust Co. v. United States, 279 U. S. 151; New York v. Sage, 239 U. S. 57. Opinion Testimony Based on Facts Not in Evi- dence. We have discussed above the contention that the hypothetical question asked of Dr. Burd was de- fective, in that it assumed facts not in evidence. Ap- pellants also argue, quite from the asserted im- prop form of the hvpothetical question, that Dr. Burd should not have been permitted to premise his answer upon facts which were not in evidence, and many of which were based on hearsay. olA Dr. Burd testified that, in preparing himself to express an opinion as to market value, he made cer- tain studies and gathered background information from a number of sources. He indicated the nature of these studies and the sources drawn upon.*’ The information gained or findings arrived at in the course of this research were not revealed, however, nor were the source materials which Dr. Burd con- sulted offered in evidence. On at least one occasion, counsel for Moore sought to have Dr. Burd testify as to the information gained in these pretrial studies. Appellants’ objection was sustained, the court instructing the witness: “You can state if you considered things as a reason for this, but you cannot say what the things are as a factual basis.” It is common practice for a prospective witness, in preparing himself to express an expert opinion, to pursue pretrial studies and investigations of one kind or another. Frequently, the information so gained is hearsay or double hearsay, in so far as the trier of the facts is concerned. This, however, does not necessarily stand in the way of receiving such expert opinion in evidence. It is for the trial court to determine, in the exercise of its discretion, whether the expert’s sources of information are sufficiently reliable to warrant reception of the opinion. If the court so finds, the opinion may be 47 (1) History of Moore’s station from 1940 to July, 1952, the information being supplied by Moore: (2) retail gasoline business in Seattle as disclosed in published data for the nation as a whole: (3) general economic and business con- ditions, as reported in materials available in public library; (4) general business conditions from July, 1952, to 1955, based on Dr. Burd’s personal study: (5) flow of traffic on Fourth Avenue South, shown by Seattle traffic surveys; (6) business performance of other gasoline stations in area since Moore went out of business. s~hown by Dr. Burd’s personal observations: (7) data concerning gasoline stations in Seattle, taken from United States Census of Business; (8) gasoline prices from 1952 to 1955, revealed by Dr. Burd’s research; (9) competitive conditions in the area of Moore's station from 1952 to 1955, as determined by investigations made by Dr. Burd: (10) service station operating problems learned by Dr. Burd as a result of discussions with a representative of Time Oil Company, and with a Richfield and a Standard dealer: and (11) business conditions in the Fourth Avenue South area, known to Dr. Burd hecause of his familiarity with the area. o8A expressed. If the opinion is received, the court may, in its discretion, allow the expert to reveal to the jury the information gained during such investiga- tions and studies. Wide latitude: in cross-examina- tion should be allowed.* Admissibility of Income Tax Returns. Copies of Moore’s original income tax returns covering the period 1940 to 1952 were admitted in evidence over appellants’ objections. These tax returns, being offered in proof of the facts therein recited, were concededly hearsay. They were not admissible as admissions, because they were offered by the party for whom they were pre- pared. Nor does the fact that these returns were “public records” under the internal revenue laws render them admissible. Greenbaum v. United States (9 Cir.), 80 F. (2d) 113. They are not “business rec- ords,” within the meaning of 28 U.S.C.A. § 1732, since not made in furtherance of Moore’s business, but at the behest of the Director of Internal Rev- enue, under sanction of a federal statute. Matthews v. United States (5 Cir.), 217 F. (2d) 409, 413-414. Moore, however, asserts that they were admissi- ble as summaries of the details of his loose-leaf ledger which was admitted in evidence as Plaintiff’s Exhibit 207. Summaries of voluminous records may, in the descretion of the trial judge, be received in evi- dence. Board of County Commissioners v. William J. Howard, Inc. (10 Cir.) , 230 F. (2d) 561, 564, cert. denied, 351 U. S. 926. No case has been cited, how- 'S See District of Columbia Redevelopment Land Agency v. 61 Parcels of Land (D.C. Cir, 235 F. (2d) 864: Gwathmey v. United States (5 Cir.), 215 F. (2d) 148: United States v. 5139.5 Acres of Land (4 Cir.), 200 F. (2d) 659. Some of the sources drawn upon by Dr. Burd, as summarized in the last footnote, are ob- jectionable because they pertain to events occuriing since the critical date of August 15, 1952. The witness should have been directed to exclude such considera- tions in arriving at his opinion. o9A ever, in which it has been held that income tax re- turns are admissible on such a theory. While the returns in question undoubtedly contain informa- tion drawn from Moore’s ledger, they also contain coniputations which are not reflections of ledger en- tries. Moreover, the returns were actually offered as primary proof of the income from Moore’s busi- ness. No testimony was offered, -nor statement made, that these returns were being submitted as summaries of Moore’s accounting records. In our view, the income tax returns should not have been received in evidence. Admissibility of Ledger and Summary Sheets. Certain of the entries in Moore’s ledger, introduced as Plaintiff’s ) Exhibit 207, were not made until sev- eral months after the transaction recorded. Mrs. Moore, who kept the ledger, was unable to recall the lapse of time involved in making certain other en- tries. The business records act provides that memo- randa or records, to be admissible, must have been made at the time of the act, transaction, occurrence, or event recorded, or within a reasonable time there- after. 28 U.S.C.A. § 1732. Appellants argue that, in view of this provision, portions of Plaintiff’s Ex- hibit 207 which were not made shortly after the transactions recorded should have been excluded. The entries were based upon cash register tapes, and, in most cases, were pusted shortly after the ena of each month. There were occasional time lags of several months in posting these entries. There was no evidence to show that this lag introduced inaccuracies or uncertainty as to the reliability of the ledger. The lapse of time was less than involved in United States v. Potson (7 Cir.), 171 F. (2d) 495, 499, where annual summary sheets were held to be admissible as business records. In our view, the trial 60A court did not err in admitting Plaintiff’s Ex- hibit 207. Certain summary sheets, admitted as separate exhibits, were based upon Moore’s income tax re- turns. Since we have found such returns to be inad- missible, summaries based thereon should not be received at the new trial. Appellants remaining specification of error re- lates to asserted prejudicial extraneous and coer- cive influences exerted upon the jury. The circum- stances upon which this specification of error is based are not likely to recur at the new trial. It is therefore unnecessary to discuss the point in this opinion. Reversed and remanded with directions to grant appellants a new trial. (Endorsed: ) Opinion. Filed Nov. 6, 1957. Paul P. O’Brien, Clerk. No. 14,319 IN THE UNITED STATES COURT OF APPEALS For the Ninth Circuit GENERAL PETROLEUM CORPORATION, a Corpo- ration; THE TEXAS COMPANY, a Corpora- tion; and TIDE WATER ASSOCIATED OIL CoMPANY, a Corporation, Petitioners. vs. No. 14319 May 25, 1954. THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHING- TON, NORTHERN DIVISION, HONORABLE JOHN C. BOWEN, Judge, Respondent. / ON PETITION FOR WRITS OF PROHIBITION AND MANDAMUS BEFORE: HEALY, PoPE AND LEMON, Circuit Judges PoPE, Circuit Judge. Petitioners seek writs of prohibition and of man- damus directed against the respondent District Court, prohibiting the enforcement of a certain or- der of that court dated March 17, 1954. The order under attack was entered in an action entitled “George F. Moore, plaintiff, v. Standard Oil Com- pany of California, et al., defendants.” It was made pursuant to that plaintiff’s motion under Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides for the “Discovery and Production of Documents and Things for Inspection, Copying or 61A 62A Photographing.” As written the order requires each of the petitioners as a defendant in that action to make available to plaintiff’s attorney for the pur- pose of inspection and copying, documents in their possession falling within 91 described categories and covering an eighteen year period extending to April 1, 1953. We do not understand petitioners to object to the order as written, but the petition is based upon the contention that as construed and understood by the respondent court, and as petitioners are now called upon by the order not merely to make available to plaintiff’s attorneys documents in their possession falling within the designated categories, but rather to supply and make available to plaintiff’s attorneys their entire files and records so that such attorneys may examine and search through them for the re- quired documents. Petitioners say that they must make such an interpretation of the order because of certain statements made by the court at the time the form of the written order was settled upon. At that time counsel for the defendants had presented to the court affidavits tending to show that in view of the number of years involved and the voluminous character of their files and records, it would re- quire them as much as eighteen months to search for, procure and make available to plaintiff’s at- torneys the documents described in the listed cate- gories. During the course of its colloquy with coun- sel upon this matter the court said: “It does not re- quire the defendants to segregate anything from anything else. It requires the defendants to make the files of the company pertaining to this subject available, and at this time it is no concern of this plaintiff that the files might contain a letter he is not interested in. I do not see how it could possibly 63A take eighteen months to make available to plain- tiff’s attorneys and typists or photographers the files of the company that were accumulated in Se- attle. * * * The only oral decision this court made or intended to make was that defendants make these files available to the plaintiff, to let plaintiff go and look at them and take copies of them. I do not re- call making any order that required the assignment of an employee for six months or two years or a dozen employees for three days or any other length of time to make any copies or segregate any files. All the Court has intended to order is that defend- ants make these files relating to the subjects which are dealt with in these numbered items of the mo- tion available to these persons acting for plaintiff and let them do the segregating and weeding out. * * * The Court is not requiring any defendant in this case to look for any group of letters and read each letter and determine whether or not the letter is pertinent to the case. The Court requires under the terms of this order which has been suggested by defendants that each and all of these defendants make available to plaintiff for inspection, photo- graphing and copying within the times that are now to be stated in this order, and the burden is on the plaintiffs to do the segregating and getting the stuff that is material. * * * The Court does not intend to say by this order that any defendant must, for example, read two or more letters in order to find out which one of the letters is useful or rela- tive to this case, but the defendants must under- stand this order is meant to make available to plain- tiffs the files and records of the defendants which relate to the subject matter. * * *” The court thereupon proceeded to fix May 3, 1954, as the date for production of the required 64A documents at Seattle, and July 1, 1954, as the date for production of those documents which were at petitioners’ California offices. In signing the order the court struck from it a provision to the effect that any party might apply upon good cause shown for an extension of time for the production of the documents. Thus petitioners contend that since the May 3, and July 1 dates did, according to their showings, afford insufficient time within which to separate and furnish the desig- nated documents or categories of documents de- scribed in the order, and since the court by striking from the proposed order the provision for an appli- cation to extend the time indicated that compli- ance must be completed by those dates, the only meaning they could attach to the fixing of these dates, in the light of the court’s remarks was that the order must be complied with by making avail- able to plaintiff for the latter’s examination, all of their files and records. This, they say, is the only way in which they could possibly comply with the order, and hence they were required to understand it so. The position of the petitioners is that so con- strued the order is one in excess of the jurisdiction of the district court. This is so, they say, because Rule 34 authorizes production and inspection only of “designated documents”.' As they say they are 1“Rule 34. Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30 (b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, ob- jects, or tangible things. not privileged, which constitute or contain evidence re- lating to any of the matters within the scope of the examination permitted by Rule 26 (b) and which are in his possession, custody, or control: or (2) order any party to permit entry upon designated land or other property in his possession or coutrol for the purpose of inspecting, measuring, surveying, or photographing the property or any designated ol,ject or operation thereon within the scope of the ex- amination permitted by Rule 26 (b). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terras and conditions as are just.” 65A required to construe the court’s order it is not so limited. Petitioners also assert that the order thus con- strued calls for an unreasonable search and seizure of their papers in contravention of the Fourth Amendment to the Constitution, as the same is con- strued in Hale v. Henkel, 201 U.S. 43, 76, 26 S. Ct. 370, 50 L. Ed. 652. Petitioners seek these writs for the seasons, as they say, that since the order in question is not ap- pealable there is no other means by which they may seek redress or protection against the attempted invasion of their rights. They argue that they may not test the validity of the court’s order by non- compliance, and an appeal from an order of con- tempt, since under the doctrine of United States v. United Mine Workers, 330 U.S. 258, 293a, 67 S.Ct. 677, 91 L.Ed. 884, the invalidity of the court’s order would furnish no defense. By the time the final judgment in the case below reached this court on appeal the lesal damage they would suffer through such unauthorized disclosure of their books and records would be beyond remedy, and hence they say this is one of those extraordinary cases in which such a writ should be issued; that under the circum- stances the issuance of the writ would be in aid of this court’s appellate jurisdiction. If the order of the district court were held to have the meaning which petitioners attach to it, we would be confronted with a nice question as to whether the issuance of such a writ is within our power or jurisdiction under the “All Writs Act’, 28 U.S.C.A. § 1651 (a). We do not reach that question here and express no opinion upon it for the reason that we think that the order of the district court 66A here under attack must be construed to have no meaning beyond or apart from that which is set forth in the order as written, and that it requires of the petitioners the production of nothing other than those designated documents listed within the several categories to which the written order refers. Further, the quoted remarks of the court during the colloquy with counsel which attended the hearing at which the form of the written order was determined upon, should not be construed by us as modifying that which the order itself says, or as enlarging the obligations of the petitioners in respect to that or- der, or as going beyond the limitations expressed in Rule 34. We think the court’s remarks to ccunsel are to be understood as no more than an effort, in an informal manner to indicate the court’s belief that no greater time was required by the showing then made. It is our view that the order of March 17, 1954, did not and does not require the petitioners to per- mit the plaintiff in that action to have access to or an inspection of the files and records of petitioners without restriction or designation, but that on the other hand, the right of inspection and copying granted by such order was limited to the docu- ments and papers designated in the order as writ- ten. We construe the action of the district court in striking from the submitted form of order the ex- press provision for further applications to extend the time for compliance as having been done, as the court’s return shows, because of the court’s view that such a provision for an extension of time was unnecessary in the light of Rule 6(b) which ex- 67A pressly permits such an application for an extension of time in any such case. The respondent Judge has here disclosed that he ‘“‘would have considered, and in the future will con- sider, modification of said order upon good and suf- ficient cause therefor being shown”. The situation is Similar to that which was presented to this court in United States v. Fee, 174 F. 2d 1020, and for rea- sons similar to those which prompted our action in that case we hold that the petitioners’ application should be, and is denied. 69A Appendix B T1A APPENDIX B Following is a compilation of the identifying marks and authenticating testimony relating to the indicia of authenticity of Exhibit 6-B and a portion of the pre-trial proceedings and representations made to the trial court that formed the background to his trial rulings on objections. The testimony is limited, however, to that bearing directly upon the technical authentication of 6-B and does not purport to include all of the testimony describing respond- ents’ business operations or respondents’ requests and use of such information. I. WITNESSES Mr. Martin, whose stamp is on Exhibit 6-B was, at the time it was prepared, Seattle District Sales Manager of Union (R. 3494) Mr. T. G. Wise, whose name appears on 6-B with a note “for your info,” was Northwest Territory Manager at that time (R. 3494-95, R. 6223). Mr. Bode, who gave further authenticating testimony had been in the Sales Serv- ice Department in Seattle (R. 3989) for seven or eight years (R. 3990). At the time of trial Mr. Martin was Northwest Territory Manager. He testified both as an adverse witness and as a witness for Union. No respondent ever asked him to explain or rebut any inference that might arise out of the numerous documents on which his name appeared. T2A II. O@THER EXHIBITS ON FORM 405-A A. Exhibits on Form 405-A offered by petitioner or respondent Union: Ex. No. Date File No. Subject : 4-A 9/ 3/51 Fair Trade Agreement 4-C 8/17/51 Fair Trade Agreement 4-G 9/ 2/49 Gasoline Prices 4-J 9/ 1/49 Gasoline Prices o-A 5/10/52 131D 6-A 11/18/49 Competitive Info. 6-F 7/19/51 131D Gasoline—Competitive 6-P 2/23/50 131D Photographs— Competitive Stations 6-T 6/17/49 Competitive Conditions 6-W 10/11/50 Price Information Jard Petroleum 11-A 1 5/13/48 131D reine A-231 U 131 D Competitive Price Conditions—Retail B. Use of Similar Forms Standard Oil Company offered many exhibits con- sisting of memoranda in almost identical form and with similar subject matter. The Standard form was designated “GO-144”. It offered as business records at least eighteen exhibits in this form, including: A 73 (SO), A 92 (SO), A 94 (SO), A 96 (SO), A 98 (SO), A 99 (SO), A 100 (SO), A 102 (SO), A 104 (SO), A 111 (SO), A 118 (SO), A127 (SO), A 130 (SO), A 131 (SO), A 132 (SO), A 133 (SO), A 134 (SO), A 135 (SO). T3A Hil. OTHER EXHIBITS BEARING FILE NO. 131 D The following exhibits also bear File No. 131 D, the same number as was on Exhibit 6-B: Ex. No. Subject Exhibit 6-I A survey of cut prices, price signs and Surv-Ur-Self gaso- line stations, headed ‘“Com- petitive Conditions’ Exhibit 6-Q Survey of Serv-Ur-Self Stations Exhibit 7-C Relating to “Gasoline Pricing Brackets” Exhibit 11-D Serv-Ur-Self service stations IV. AUTHENTICATING TESTIMONY AND EVIDENCE RELATING TO EX. 6-B a. Relating to “Form 405-A”’ Martin (R. 3724-26) Q. That [Ex. 6-A] is on a memorandum, is it not, on a regular Union Oil Company memoran- dum form? A. It is on a regular Union Oil memorandum form, yes. ” | Q. It is Form 405-A, is that not correct? A. That is right. Q. And that is a form regularly used in the business of the Union Oil Company, is it not? A. It is a form that is used in the business of the Union Oil Company, yes. Q. For the purpose of transmitting business T4A information back and forth between representa- tives or executives of the company? A. It is used to transfer various types of in- formation back and forth. Q. But primarily information relating to some portion of the business of the Union Oil Com- pany, is that not correct? A. I don’t know as it is primarily. It is used in our business and it is used for conducting in- formation back and forth between the various departments, yes. Q. Information about the business? A. Various types of information. THE CCURT: Read the question. I ask the wit- ness to answer that question. A. It could be, yes. Q. (By Mr. Burdell): Well, it is not used for transmitting any information other than busi- ness information, is it? , A. It could be. I couldn’t say that it is ever used for any other purpose. It is used for busi- ness informatfon—transmittal of the informa- tion of business. Q. That is its purpose, is it not? A. I would assume that to be so, yes. Q. It is? A. Yes. Q/ It is not intended for the purpose of trans- mitting personal information or anything of that sort? A. Not as far as I know. It could be used so. Q@. The company doesn’t permit it, does it? A. I wouldn’t say that they sanctioned it, no. Mr. Martin (R. 3564) Q. Is that [ Ex. 4-A] on a Union Oil Company form? TSA. A. It is on a Union Oil Company form, yes. Q. Does it bear a form number? A. Yes. @. And is that a form number that you are familiar with? A. Yes. Q. Is it a form number used by Union Oil Company in transmitting memoranda? A. Mainly inter-office, yes. @. Mainly inter-office memoranda; and is it a form used in connection with the business matters of Union Oil Company? A. I would say it would be used in the busi- ness matters of Union Oil Company. Q. And it is a regularly used form in the busi- ness matters of Union Oil Company, is it not? A. I would say it would be used in the busi- ness matters of the Union Oil Company. @. When I say “regularly” it is used when- ever information has to be transmitted, and this type of form is appropriate for transmitting that information? A. It could be transmitted on this type of form Bode (R. 3943) Q. That [Ex. 11-A] is [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_IA40386419_0241%3A2. Public record. Not legal advice.