Petition for Writ of Certiorari — Wray Equipment Corp. v. Westinghouse Electric Corp. (No. 885)
Supreme Court brief1960
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PETITION’ FOR A WRIT: OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE’FIRST CIRCUIT
se
Cen CAR we SRR Oe oO PRE eM CEE eke eee ee ee
“7. 1940) 111 F.2d 63
' Page
> . Upinions Below ...... CE ee a Said’ “Y.
Jurisdiction ..... ES ROG AS eh ee Ee RO
NN INN ui cub cosa dv sssave'esvsh odes 3
Statutes Involved ......... Zt bepoe it ALY ES OEE i
Statement of the Case ............. bh waite ceaaice 8
1. Proceedings Below ..... Kanth NRE Ree Ries ne ee 3
II. Summary of Findings of Fact and ( ‘onclusions
* _of-Law of the Distriet Court: .720 22.00... 5
IIL. Summary of Opinion of the Court of a = &
Reasons for Granting the Writ ..................... 1
‘1. The failure of respondents to raise the issue of
prejudice: at trial ............ PC sieesGh ne wien end 10.
_Il. The harmless effeet of the Hoyt deposition testi-
PE . NaNpanatceune eh apn thous 6b eb neecasewews I
> IIL. Phe harmless effect of the failure of petitioner
to introduce related parts of a deposition on
"© consecutive pages of a transcript ............ lo
[V. The failure of the Court of Appeals to find a
_ single demonstration of prejudice by the trial
ee ir cee e Cask aetetae hin hie Sas gee ae
Conclusion mr “\ ae kauks = Sapsnetceeeen tiariieta we 17
I ee ee adie wae wins 18
RR ae A
Citations — ~~~
Cases
Assoctated Press vy. United States, 326 U.S.1 0.0... Is
. Baker v. Mueller (CA. 7, 1955) 222, F.2d 186, 183 .. 11, 12
Becker Steel Company of America v..Cummings, 296
» ~Cloeago, M. & St. Paul Ry. Co. ¥. Harrelson, (CLA. &,
15
Northern Pacific Railway v. United States, 356 U.S. |,
i Index
Page
Dowell, Inc. v. Jowers (CA. 5, 1950) 182 F.2d 76,
International Salt ( 'o. v. United States, 332°U.S. 392.
el ee ena els nc See
Kobe, Inc. v. ‘Dempsey. reas Co., (C.A. 10, 1952) 16
F.2d 416, 423, cert. dem..344 U.S. 837°. ............. l4
New Arcade Co. v. Owens (C.A.D.C. 1919) 258 F. 965 .. 15
EE ci dedtecinvkanecheeheenekas 4nd seuss 1304-
Osborn v. Sinclair Refining Co., (C.A. 4, 1960) 1960
Trade Cases p. T7080 ....ccccccesecccccceccceuss 14
Oxford Varnish Corp. v. Ault & rane Corp. (C.A. 6,
A Eo iin bing cD tnd cesicesscess: Be
Ralston Purina Co. v. Novak (CA. 8,1940) 111 F.2d 65) 15
Scott v. Beams (C.A.10, 1941) 122 F. 2d 77, 782, TR,
cert. den. 315 U.S.809 ... - ee ero ere os i aa
Slattery v. Marra Bros, (U.A. 2,°1951) 186 F.2d 154,
137, cert. den. 341-U.S. 915 ................ M1, 12, Ie
Socony-Vacuum OW'Co. v. t "nited-States, 310 U.S. 150.5
LV ae ti cna AKER awe ORK TET ae
Standard Oil Co. v. United States, 337 U.S. 293 ......
Suburban Transit Corp. v. Malone, (C.A. 4, es) 156i
cg ere r rere rrr yr rer rT er verry pre 1]
Texas Pacific Ry. Co. v. Watson, 190 U.S. 287, 291. 1)
' United States v. Griffith, 334 U.S. 100, 107, 108 ae 14
United States v. Yellow Cab Co., 332 U.S. 218 .7...... 14
Statutes
Sherman Act, 26 Stat. 209 r
Section 1, 15 U.S.C. §1 ... ri... ee
Section 2, 15 U.S.C. §2 .............. Munareee
(‘layton Act, 38 Stat. 731
Section: 3, 15 U.S.C. §14-...... Pedaon tae ee
Section -4,.15 U.S.C. 615 .......... PO RR ster
°
“A
° * ‘ " Fu the ; '
Supreme Court of the Ruited States
‘Octone n TeRM, ° 1960
No.
ty
W RAY EQUIPMENT. CORPOR ATION,
PETITIONER,
vr.
W ESTINGHOUSE Ki BCTRIC CORPORATION AND
" ALD NEW YORK INC.,
RESPONDENTS. ai
?
PETITION FOR A WRIT OF CERTIORARI TO THE
ED STATES COURT OF APPEALS
FO
To THe HonoraBLeE THE CHIEF JUSTICE AND THE ASSOCIATE
JUSTICES OF THE SuPREME C'ouRT OF THE UNITED STATES:
Petitioner prays that a writ of certiorari issue to review
_ the judgment of the United States ( oat of Appeals for the
First Ci *
: st Cireuit. SPS ; ‘a
Opinions Below
The opinion of the United States Court of Appeals for
the First Cireuit is not yet reported but is printed in Ap-
a :
2 ) a
pendix A to this petition.’ The District Court did not file
an opinion. The District (ourt’s Findings of Fact an
Conclusions of Law are found in the Consolidated Recor
Appendix beginning at p. 1623. 7
| ‘Jurisdiction
Question mae
‘In wv seven-year-old antitrust case tried without a jury.
where defendants contended that the trial judge displayed °
prejudice against them throughout a 28-day trial but where
defendants raised the niatter of prejudice for the first time
on appeal, whether a court of appeals is justified in va
eating a judgment for plaintiff and remanding the case for
re-trial béfore another judge on the ground of the origina’
trial judge’s prejudice: [ay
(a) without any specification of the prejudice al-
legedly shown by the trial judge except for the possible
commission of harmless error in the admission of evi
dence; and Rn
~
‘
1 (App. A). as used hereinafter refers to the opinion of the Court o/
Appeals ‘as printed in Appendix A...”
2 Both respondents appealed from the judgment of the District Court.
The appeal of respondent Westinghouse Electric Corporation ,¥2
docketed in the Court of Appeals as No. 5682 and that of respondent
ALD, New York, Inc. as No. 5683. The record in both appeals w
consolidated and consists of three volumes. Volumes I and II contain
pleadings and testimony. Volume III contains exhibits and Proceeding»
in Court of Appeals. This consolidated record will be referred tv het
inafter as R.A. rerven by the appropriate page number.
3
(b) without. any consideration of the merits of the
case.
Statutes Involved
The statutes involved are Sections 1 and 2 of the Sher-
nan Act, 26 Stat. 209, 14 U.S.C. Sections 1 and 2 ‘und
Sections 3 and“4 of the Clayton Act, 38 Stat. 731, 14 U.S.C.
- Sections 14and 15, all.of which are set forth in Appendix B «-
‘to this petitions pp. 25 and 26, —
bac? Statement of the Case _
~~ Procrepixes BeLow vb
Petitioner, a Massachusetts corporation, was at all perti-
nent times engaged in selling machinery aud equipment to
Operators of so-called automatic half-hour laundries. Re-
spondent ALD New York, Ine.,.a New York corporation
(héreinafter ALD), was engaged: in the same business as
petitioner. Respondent Westinghouse Electrie Corporation
a Pennsylvania corporation (hereinafter Westinghouse),
“was engaged, among other things, in manufacturing and
selling 9-pound washing machines, for use in half-hour laun-
dries, :
On February 4, 1954, petitioner filed a complaint in the
‘United States District Court for the District of Massachiu-
setts (R.A. 13). In substance the complaint alleged. that
.'the respondents combined and conspired to restrain and
monopolize, and entered into unlawful agreements with re-
spect .to, interstate commerce in half-hour laundry ma-
chinery, in. violation of Sections 1 and 2 ef the Sherman
Act and Section 3 of*the Clayton Act. It was further
alleged that the unlawful conduct of respondents consisted,
in part, of their exclusive dealing arrangetients as to the
grea
_ Westinghouse 9-pound washing machine accompanied |.
tie-in sales of other laundry equipment; of their refusal
. to deal with petitione?; and of threats to other makers of,
laundry machines to prevent their dealing with petitioner: -
‘As a result, according to the complaint, petitioner way in.
jured in its business.
Respondents’ answers denied most of the munteeia! alle.
gations of the complaint.
Trial of-the case commenced on October 8, 1958. Testi. -
mony was taken intermittently on 28-days,. concluding on
January 13, 1959. Both respondents filed motions to di--
miss (R.A. 1581) and motions to strike certain evidence
(R.A. 1585, 1614). All parties submitted requests for find:
~ ings of- fact, conclusions of law and briefs and presented
oral arguinent. On February 18, 1960, the District Cour
filed its Findings of Fact and Conclusions-of_Law in whiel’.
it was ruled that, through their violations of the antitras—
laws, respondents had injured petitioner to the extent of
$55,000.00_(R.A. 1623-1632). |
Thereafter, petitioner applied for the allowance of cou
sel fees and costs and for the entry of a judgment, fo
_ treble the amount of the damages found, plus any cost
and ‘counsel’ fees which might be awarded. This matte!
was briefed and argued orally by the parties. On March 25,
1960, thé District Court entered a judgment totalling
$198,102.84 in faver~of petitioner and» against hot h I
spondents.{R.A. 1633-1634).
Westinghouse filed its notice of appeal on April 5, 16
and ALD followed with its notice on _— 8. 1960). (R.A:
1634). |
It should be noted that at no stage of the pre-trial and
trial proceedings, all of which were administered by the
same judge and which encompassed the period betweew
February 4, 1954 and April 5, 1960, did respondents bring
to the judge’s notice any claim that a single ruling was
.
od
‘prompted by bias. or “prejudice. Respondents raised the
question of prejudice for the first time on appeal.
On February 2, 1961, the Court of Appeals filed its
‘ opinion and entered its judgment vacating the judgment
of the District Court and remanding the cause for a new
trial before a different judge. As will be stated more fully
below, the Court of Appeals based its action upon its find-
ing of a prejudicial attitude on. the part of the trial judge.
Hl. SumMaky of Finpines oF Fact anp Conciusions oF Law |
oF THE District Court
The Findings of Fact and Conclusions of Law of the Dis-
trict Court (R.A. pp. 1623-1632), may be summarized: a-
follows: | de
o The District Court found that Westinghouse had granted
. respondent ALD and ‘its parent ALD, Inc. the exclusive
right to buy and re-sell the commercial Westinghouse: 9)-
pound washing machine (known as a Laundromat ) to half-
hour laundries. This exclusive arrangement also delegated
solely to the ALD companies the authority to permit. the
half-hour laundries to advertise themselves .as Westing- |
house stores. The ALD companies reciprocated by agree-
ing to buy and re-sell no 9-pound washers except the West-
_ inghouse Laundromat. |
According to the District Court’s findings the commercial
Laundromat, in construction and performance, is a uniqae
and superior 9-pound waslier for use in half-hour laundries..
This cireumstance resulted in such expansion of the sales
of commercial Laundromats that during the period of the
case more of those machines were sold to half-honr lani-
dries than all other makes combined. Similarly, the Laun-
dromat outstripped all competitive produets i in sales in the
New England grea.
The casi Court also found that, although the primary
‘ .: .
concern of the half-hour laundry operators was to obtain
commercial Laundromats, the operator also needed asso-
‘ciated equipment: such.as driers, extractors, boilers and the
like. Westinghouse -did not manufacture this associated
equipment. Nevertheless, Westinghouse permitted the oper-
_ ator. to advertise his store as an ‘‘Authorized Westing-
-house Laundromat Equipped Half-Hour Laundry" with
the knowledge that it contained much of this non-W esting-
house machinery.
The ev idence also demonstrated, aeons to the Dis-
‘ trict ‘Court, that the ALD organization instructed its sales”
‘men and announced to the trade that if the half-hour
laundry operator wanted to obtain the commercial | aun.
dromat, he would also have to buy all needed non-Westing:
house equipment from ALD. W estinghouse was found to
- have acquiesced in this practice.
- In-its early days, petitioner, which the Distriet Court
found to be comparable to ALD in ability to serve the
trade, made purchases of Laundromats from ALD for re-
sale to new half-hour laundries. ALD was found to have
known of petitioner’s intended use of these machines. Ilow-
ever, upon‘a subsequent order from petitioner and there.
-after both ALD and W estinghouse refused to furnish |.aun-
dromats to petitioner. ‘This refusal was determined to be
without justification by the District Court.
The District Court also found that ALD tortiously inter-
fered with petitioner’s business relationships with sup. -
pliers of equipment. In that connection, the District Court
mentioned two such suppliers, Hoyt Manufacturing Corpe-
ration and Cook Machinery Company. . .
As to the Cook company, the District ( ourt found that
it had been acquired by respondent ALD’s parent, AL AD.
Ine., and that thereupon petitioner had been denied its
previously exercised right to purchase 25-pound: Washing
v
machines made by Cook. The Court of Appeals ‘made no
mention of this Cook incident in its opinion.
The District Court also found that, because of the co-
ercion of ALD, the Hoyt company refused to sell a dryer
to petitioner to fill a particular order. In making the find-
‘ing, the District Court quoted this statement of ‘Hoyt, the
company president, as to the pressure exerted by ALD:
I tried to exercise a certain amountof prudence. If a
man is going to hold me up, I am not going to find out
whether he has a bullet in his gun.
As will be explained below, the Court of Appeals singled
out the Disiriet Court's reception and use of the quoted
' statement as the primary facts hearing upon the District-—
Court's so-called prejudice.
As the result of the above-summarized and other acts of
respondents, the Distriet Court found that petitioner was
not ouly prevented from selling Westinghouse Laundro-
Mats but was also’ prevented from selling other laundry
machines not made by Westinghouse. Petitioner's damages
were determined to be $55,000.
From its faet- findings, the District Court drew a number
of lvgal conclusions. Its basic conclusions were three, First,
it held that’ respondents injured petitioner in its business
by combining to restrain a ‘‘not insubstantial’? amount of
iiterstate commerce in automatic, laundry machines in vio-
lation of Section 1 of the Sherman Act. Seconfly, the Dis-
trict Court concluded that respondents had. damaged. jieti-
tioher by monopolizing and attempting to monopolize an
. appreciable segment of the laundry machine trade in viy-
lation of Section 2 of the Sherman Act. Finally, the District
Court ruled that the tie-in sales of Westinghouse and non-
Westinghouse equipment.impesed on half-hour laundrie~
by respondents injured petitioner and wrought a substan-
8
tial lessening of competition in ehohation of Section 3 of the
Clayton Act. Accordingiy, the District Court conc luded —
as a matter of law that respondents’ violations of the anti.
trust laws resulted in damages to ew to the extent
of $55,000.00.
Il. Summary oF OPINION OF THE C‘ouRT oF APPEAL ~ .
The opinion of the Court of Appeals specifies that the
- District Court committed prejudicial error in receiving ouw
piece of evidence and that’the District Court departed
from orderly procedure in treating with deposition testi.
mony. Without identifying any portion of the record to
support the charge, the opinion also concludes wit! the
statement that a reading of the record shows that the Dis-
trict Court was prejudiced in favor of petitioner.
The Ogurt of Appeals assigned as prejudicial error tle
District Court’s reception in evidence and use in findings
of the colorful ‘‘gun’’ statement of the Hoyt president
referred to in the summary of the District Court's findings
(App. A. 20-23).
As appears from the Court of Appeals opinion, Hoyt,
inade the statement at a deposition given -a. few mon'li-
after the incident took place, but more than four years
before trial. As his memory was somewhat: hazy whien a
witness. at trial, petitioner’s counsel read the quotation
in question to him for two pufposes, to refresh his: reco!
lection or to.show a prior inconsistent statement.
The Court of Appeals concluded that Hoyt’s mc inory
was not refreshed ‘by the reading of the deposition; that,
he did not adopt the deposition statement as his present
recollection; that a majority of eases do not allow a prior
statement to be received in evidence as a prior incon~:-teu!
statement and that it was prejudicial error to receive that
particular statement on any theory (App. A. 22, 23).
a
a
~<A -
=e
* ee 9 = -
The Court of Appeals did not diséuss .the question of:
whether the Hoyt statement was essential to the finding
that-ALD had exerted undue pressure on Hoyt Manufae-
turing Corporation; of the question of Whether the Hoyt —
Manufacturing Corporgtion incident -was essential to the
finding that ALD had tortiously interfered with petitioner's
---afrangements with suppliers; or the question of whether
the finding as to tortious interference was essential to the
ultimate conclusion reached by the District Court. As will
he pointed out under Reasons for Granting the Writ, the
Hoyt statement was a picturesque but trivial item of proof
with respect to an independently proved incident .which
could not have changed the ultimate outcome even if not
proved. If error, it will be shown to be harmless.
_ It is not argumentative to state that the second fault
- foiind-by_the Court of Appeals is of even less consequence
than the first. In-the early stages of the trial, petitioner
rend into evidence certain portions of depositions. There-
upon, respondents requested ‘that ‘petitioner read other —
portions claimed to be related to the parts already. read. |
Petitioner objected to reading such portions “and claimed
that they formed a part of respondents’ case. The District ,
Court sustained petitioner’s objection, Later, respondents
read such portions into the record and petitioner offered
ir evidence as a part of its own case the portions read by -
_ respondents (App. A. 23-24). |
_ The. Court of Appeals ruled that the District Court's _
treatment-of this deposition testimony was faulty because
the supplementary testimony read by respondent was sepa-
rated by more than 1000 pages of the transeript from ‘the -
deposition testimony read by petitioner. The Court of
Appeals stated that such a wide separation of .relevant
parts of a deposition ‘‘unduly impedes the orderly con-
sideration of the deposition testimony, even in.a non-jury
' case."’ (App. A. 23-24).
, 10
After its discussion of the Hoyt testimony and the depo.
sition testimony situations, the Court of Appeals concluded
its opinion with the sweeping and serious charge that a
reading of approximately 2000 pages of: transeript. showed?
that the trial judge was prejudiced in favor of petitioner
(App. A. 24). To support this conclusion, the Court
of Appeals mentioned that there were several indications
of prejudice manifested bythe District Court’. ‘eros.
ex#mination’’ of respondents’ witnesses ( App. A. 24):
The Court of Appeals did not identify a single instane® 01
improper ‘‘cross-examination ”’ by the District Court and.
it did not* advert to the fact that the District “Court
also questioned petitioner's witnesses (e.g. RvAy 119, 398).
Finally, the,»Court of Appeals speculated that the Pistrict
Court’s prejudice may have resulted from the Hoyt refer:
enee to the gun (App. A. 24). For. these reasons, the
Court of Appeals ‘vacated the judgment in favor of yeti-
tioner and ordered a re-trial before a new judge. a
o
Reasons for Granting the Writ
; ™
I. Tue Faure or. Respoxpests to Raise tHE Iss) bo
— Presepice at Trin |
; ¥
- The principal reason for the Court of Appeals* vacating
the Disirict Court's judgment in favor of petitioner and
remanding for a new triai before a different judge was i!-
_ conclusion that the trial judge was prejudiced. This issu
of prejudice was_never raised by respondents duritiy th
four years of pre-trial rulings by the same judge. As th:
docket entries show there were many such rulings (R..\.
1-7). The issue was never raised by respondents at any
time during the 28-day trial. It was not raised at the final
oral argument held before submission of the ease 'o the,
1]
District Court for decision, It was not made the subject
of a motion for new trial.
Respondents gave the ‘trial judge no opportunity to
disqualify Himself. Indeed, they gave the trial judge no
hint or inkling that they believed he was doing anything
other than ruling according to the law and facts as he
- saw them during the protracted trial. They waited to sec
whether the trial judge would find in their favor. When te
did ‘not, théy then claimed before another court, the Court
of Appeals, that the trial judge had displayed bias and
prejudice. . fa ‘ A &
The Court of hstounie’ reversal of the District Court's
judgment under these circumstances was. in conflict with
decisions of this Court and in conftiet with decisions of
other federal courts of appeals. ca 7
If'there is one rule pertaining to the auestione properly
to he considered on appeal which is uniformly applied, it is
that where the appellant: has, failed to object to rulings
or conditions below, he may not raise them on appeal, in
" the absence. of rare- and unusual circumstances. Becker
Steel Co. of America vy. Cummings, 296 U.S. 74; Socony-
Vactum Oil Co.-v. & nited States, 810 U SS. 150, 238, 230s.
Scott v. Beams (C.A.-10, 1941), 122 F.2u Tit, 782; 789, cert.
den. 315 U.S.809; Suburban Transit Corporation v. Malon
ACLA. 4, 1946) 156 F.2d 422; Dow ell, Inc. v. Jowers (CLA. 2
1950) 182 F.2d 576, 579; Slattery ry Vv, Marra Bros, (CLA.
1951) 186 F.2d 134, $37, cert. ‘den, 341 U.S. 915; ee ia v.
Mueller, (C. A. 7, 1955) 222 F.2d. 180, 183.
Petitioner concedes tliat if the record shows a ¢ lear mani-
festation of bias ‘of the trial judge, an appellang court may
take cognizance of the fact even though the issue were not
raised at trial. However, in the cases cited above, showings
~ Were made of trial proceedings much more likely to be
prejudicial to the litigants | than those the Court of Appeals
was-able to muster in this case.
12
In Dowell, the trial jadge made remarks in the presence
of a jury which were claimed to be prejudicial. The (our: °
of Appeals for the Fifth Circuit held that it was appel-
lant’s duty wake a-seasonable objection. In. Sluttery.
appellant raised the issue that the trial judge’s questioning
of witnesses was prejudicial and that it posed such a
_ serious problem that it should be noticed on Appeal even
though not brought out below. The Court of Appeals fo
the Second Circuit, through Judge Learned Hand, heli:
that timely Objections should have been made even if the
error were serious. The Court of Appeals for the Seventh
Circuit in Baker refused to consider the question of whether
the trial judge should have disqualified himself, cans:
_ the point was not raised in the District Court. In Svott,
_ the Court of Appeals for the Tenth Circuit held that th
question of whether the tsial judge was prejudiced wa no:
timely raised’ because, although brought to the attention of
the trial judge before appeal, it was not raised until <ixt)
days after the alleged prejydice became apparent.
Here, the alleged prejudice was not raised for more than
eighteen months after respondents claimed it became ap
_parent. Moreover, accordfng to the opinion of the Court of
cd
Appeals in this case, the only demonstration of pregydic:
by the trial e consisted of one instance of admitting
some coating, Wilaa- thesia not have been admitted, of
one instance of not follow ing an-erderly procedure in the’
admission of evidence and of some _undeseribed- atid wn
identified ‘‘cross-examination’’ of witnesses, This shouing
falls far short of the unusual cireumstanees whieh }« rmit
‘an appellate court to consider alleged errors not claimed
below. Furthermore, as will be demonstrated below, the
Court of Appeals’ holding that any of these three types o!
actions by the District €ourt would amount to prejidici:
error. is in conflict with decisions of other federal apjllat«
courts.
<7 | 13
IL. Tue HARMLESs Kerect or tue Hoyt Dareomnes Trst1-
MONY ‘ ae
a)
' Before reaching the question as to whether the Hoyt
deposition testimony was improperly admitted to* prove
__ that Hoyt Manufacturing Corporation was coerced by ALD.
~~ it should be pointed out that under the facts which it found
_ the District Court was required to reach its ultimate de-
cision regardless of the entire Hoyt incident.
The District Court found that respondents had a mu- .
tually exclusive arrangement whereby Westinghouse would
sell its 9-pound washer only- to the ALD companies and the -
ALD companies would buy no 9-pound washer other than
the Westinghouse Laundromat ; that the Westinghouse
Laundromat was unique among 9:pound washers and wa-
most in demand by half-hour laundries; that ALD would
sell the Laundfomat to half-hour’ laundries only on con-
“dition that, they would buy their necessary non-Westing
house-made equipment from ALD; that the 9-pound washer
was the most important piece of equipment in a hatf-hour
. laundry; that petitioner. was at first permitted to buy the |
Westinghouse Laundromat but was later unjustifiably de-
nied the right to purchase the machiffe hy both respondents ;
that petitioner was, thereby, not only prevented from sell-
ing Westinghouse Laundromats but other laundry equip
ment to those Kalf:hout laundries which demanded, the
- Laundromat; and that the interstate commerce in the West
_ inghouse and non-Westinghouse equipment invelved in the
Hea ‘case was-appreciable in extent (R.A. 1623-1632).
_From-these facts, apart from the Héyt incident, the Dix
trict (ourt_woald have been. required to conclude that re
spondents violated Section 1 af-the Sherman Act to the -
injury of petitioner’ ~ business. Associated Press vl nited
Sfates, 326 U.S. 1; International Salt Co. v. United States. ~~ —__
332 U.S. 392, 396; Northern Pacific Railway v. U nited :
=
14
States, 356 U.S. 1, 10, 11; Oxford Varnish Corporation y.
Ault & Wiborg Corporation (CLA. 6, 1936) 83 F.2d 764:
Osborn v. Sinclair Refining Co. (C.A. 4, 1960) not yet offi
‘cially.reported but found in 1960 Trade Cases, p. 77030.
The same amtivities of respondents also constituted a
violation of Séction 2 of the Sherman Act to petitioner's
damage. ['nited States +. Yellow Cab, 332 U.S. 218; Kobr.
Inc. v. Dempsey Pump Co. (CLA. 10, 1952) 198 F.2d 416,
423, egrt. den. 344 U.S. 837. «
Similarly, the tie-in sales involved, constituted violations
of Section 3 of the Clayton Act actionable by petitioner.
Standard Oil Cou. v, United Stotes, 387 U.S. 293; 0; ford
Varnish Corp. v. Ault d) Wioorg Corp., supra.
The Hoyt incident, therefore, wax but ‘frosting. on the
cake’’ which indicated that ALD liad a predatory intent,
un intent unnecessary for petitioner to establish. Ser
‘United States vy. Griffith, 334 U.S. 100, 107, 108.
Moreover, without the **gun*’ statement by Hoyt, there
was sufficient independent evidence introduced to cause the
District Court to conclade that ALD did influence the Hovt
Manufacturing Corporation not to: sell a dryer te pet:
tioner. °
For exantple, Hovt testified at trial that his compiins inauel
heen “under pressure” to. *tdo business: entirely with
ALD” (R.A. 369). An ALD representative. conceded that
he called Hoyt about the transaction in question (R.\. 1H82.
1083). A representative of the Hoyt company, other that
Mr. ‘Hoyt, notified ‘petitioner that the Hoyt Company wer
under pressure about the transaction in question (R.\. 211,
212). Hoyt acknowledged that he was filling order. fo
_ ALD when he held up petitioner's order (R.A. 399).
Thus, the District Court was amply justified | in conelned-
ing, from evidence which the. Court of Appeals did ne!
question, that ALD had exerted pressure upon petitioner
supplier, Hoyt Manufacturing (Corporation.
15
Finally, even if the Hoyt incident were oritien to the
case, the admission of the Hoyt deposition testimony could
not be prejudicial error because it was corroborated by his
later testimony’ (R.A. 369): and by the other testimony
noted above. Texas Pacific Ry. Co. v. Watson, 190 U.S. 287,
291; Chicago, M. & St. Paul Ry. Co. v. Harrelson (CLA. &y
1926) 14 F.2d 893; Ralston Purina Co. v. Novak, (CLA. &,
1940) 111 F.2d 63.
Til. Tue HarMuess Errect or tHe Faitune or Peririoner
to Intropuce Revatep Parts or a Devositign ox Con-
SECUTIVE Pages oF TRANSCRIPT
The Court’ of Appeals complains of the lack of orderli- ~
ness in the fact. that. relevant portions of the same depo-
~ition were separated by 1000 pages of the transcript in a
ion-jury trial, The Court of Appeals did not indicate how
any prejudice to respondents could possibly acerue from
such separation, There coukd be nove. All of the relevant
portions of the depositions became a part of petitioner's’
case before the total case way submitted to the District
Court: for consideration and decision. Respondents had
imuple opportunity by briefs, requests for findings and oral.
argument to make such use‘of all parts of the depositions
as they saw fit. It could hardly be contended that, if the
District Court relied on memory instead of, a reading of
the transcript, it would have remembered the éarlier rather
than the latter readings from deposition testimony.
The District Couft did not commit prejudicial ‘error in its
hamlling of the depositions. New Arcade Co. v. Owens,
(CLA, D.C., 1919) 258 F. 965:
16
IV. Tue Fature or THe Court or APPEALS Ww Fivn 4
“Since DemonstraTion or Presupice By ‘THE Trial.
JUDGE
‘As noted above under the Statement of the Case, the
Court of Appeals, in its opinion, failed to identify. ove iota
of evidence of bias and prejudice on the part° of the trial
judge. It was conteyt to base this accusation on it» w-
supported statement that a reading of the record brouglit
_ about this conviction. Its allusion to some unspecitied ‘in-
stances of ‘‘cross-examinatiow’’ on the part of the trial
judge and its speculation that the ‘‘ prejudice’? was ** per-
~haps’’ the result of the testimony about the gun, Add
nothing in substantiation of the charge. More precisely
documented charges of prejudice on the part of a triai
“judge have been found wanting by federal appellate courts.
Dowell, Inc. vy. Jowers, supra; Slattery v. Marra Baws.
ra; Scott v. Beams, supra. An examination of thie en-
tire record of this case will show that the trial judge wa. _
not prejudiced but was impartial. This Court is in as gourd
a position as the Court of Appeals to make that exami
nation and determination. | '
Since the Court of Appeals’ opinion was utterly bere!
of reasons as to why, when and how the trial judge was
prejudiced, its judgment in’remanding the case for re-tria!
before a new judge should not be permitted to stand. Thi
petitioner is a small concern which has lost money in it-
operations as the record shows (Ex. K, R.A. 1970). After
its case was pending more than four years, jt had it~ day
in court and obtained a judgment after what must be con
.sidered a fair trial. Certainly, the Court of Appeal- failed
to show the contrary. The findings of the District (vu'".
which were not even examined by the Court of Apyeal>
support the legal conclusions reached. It would Jw i
equitable to subject petitioner to another long trial, sagen
17
years after this case was filed, without a determination as
to whether it should have prevailed on-the merits.”
Conclusion
For the foregoing reasons, petitioner requests that the
writ of ‘certiorari issue and that this Court either decide
the case on the merits or, in the alternative, remand the
— ease to the Court of Appeals for a consideration of the
merits. |
Respectfully submitted,
James M. Matioy
RaLtpo WarkEN SuLiivan
10 State Street |
- Boston 9, Massachusetts
Attorneys for Petitioner
Mautoy, SuLtuivan & Myerson |
of Counsel ;
18.
APPENDIX A
United States Cc Court of Appeal
_ -For the First Circuit
No. 5682.
_ WESTINGHOUSE ELECTRIC CORPORATION,
DEFENDANT, “APPELLANT,
v. ae
WRAY EQUIPMENT cone.
PLAINTIFF, APPELLEE;
"No. 5683.
ALD NEW YORK, INC.,
DEFENDANT, APPELLANT,
v.
WRAY EQUIPMENT CORP.,
PLAINTIFF, APPELLEE.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR TRE
DISTRICT OF MASSAC HUSSTTS
Before Woopsury, Chief Judge, Hartican, Circuit Jutge,
and Juan, District Judge.
John M. Hall, with whom Rhodes G. Lockwood and Choate, Hall
& Stewart were on brief, for appellant in No. 5682.
Douglas L. Ley, with-whom Elliott V. Grabill, Nathaniel J. 7 ‘4,
Jr., and Grabill, Ley & Mason were on brief, for appellant in No. 5083. —
James M. Malloy, with whom Ralph Warren Sullivan and Morton |
Myerson were on brief, for appellee.
OPINION OF THE COURT
February 2, 1961
HaaricaN; Circuit Judge. These are appeals from a judg-
ment of the United States District Court for the District
of Massachusetts entered for plaintiff on March 25, 1960.
—_
4g
Plaintiff-appellee, Wray Equipment Corp., sued West- ©
inghouse, Electric Corporation (Westinghouse) and ALD
New York, Inc. (ALD) for treble damages under the
‘Sherman and (layton Acts, 15 U.S.C. §1. et seq., alleging
that the defendants and various co-conspirators. had con-
___spired-and-—were conspiring to monopolize and unreason-
ably restrain interstate trade and commerce in half-hour
launderette machinery and equipment, and that by various
acts done in furtherance of this conspirdey plaintiff had
been injured in its business:
- The plaintiff alleged that the conspiracy and acts in
furtherance of it included: (1) an agreement between West-
inghouse and ‘ALD that Westinghouse would not sell its
nine pound laundry machines to any launderette machinery
distributor other than ALD and that ALD would purchase
nine pound machines only from Westinghouse; (2) pur-
suant to the agreement and with the approval of ALD,
Westinghouse refused to sell its nine pound machines to
3
plaintiff at any price; (3) with the approtal of Westing- |
house, ALD refused for several months to sell nine pound
machines to plaintiff at a price lower than that charged.in-
dividual launderette operators and subsequently ALD re-
fused to sell nine pound machines to plaintiff at any price;
(4) with the approval of. Westinghouse, ALD used its ex-
elusive right to distribute Westinghouse nine pound ma-
chines to cause prospective launderette operators desiring
| these machines to purchase from ALD their entire re-.
a of twenty-five pound laundry machines, dryers,
: (5) with the approval of Westinghouse, ALD used
sindbis right to distribute the Westinghouse. nine
pound machine as the basis for threatening manufacturers
of twenty-five pound machines, boilers, dryers, ete. with a
boyeott if they did not discontinue making sales to the
plaintiff. Plaintiff alleged, inter alia, tHat as a result of
the conspiracy and the acts in furtherance of it, (1) plain.
20
tiff had been prevented from making sales of Westinghouse
nine pound machines to launderette operators ; (2) plaintiff
had been prevented from making sales of boilers, dryers,
etc. to launderette operators who desire to use Westing-
house nine pound machines; (3) manufacturers of the’ as-
sociated equipment have refused to sell to-plaintiff and have
refused to meet shipping commitments on machines al. —
. ready sold to plaintiff. -
The case was tried by the district court sitting without
a jury. An unnecessarily protracted trial of twenty-cight
days was held during which a great deal of evidence was re-
ceived by the court over the objection of the defendants.
The district judge announced several times that in order
to conduct the trial expeditiously he would receive the
evidence but that it was subject to a motion to strike to
be made at the conclusion of the trial. Motions to strike
were made by the defendants at the close of the evidence.
In the preface to its findings of facts and conclusions of
law the lower court stated: “Defendant ALD submitted
a Motion. to Strike, whicl{ is denied.’’!
The court. made findings of facts and conclusions of law
‘ that plaintiff was entitled to recover treble damages under
the Sherman and Clayton Acts and entered judgment for
the plaintiff.
Defendants in their appeals specify numerous errors, hut
we do not believe it is necessary to discuss all of them in
the disposition which we make of this case.
We -believe that the district court weed prejedicially by
failing to grant defendants’ motions to strike certain evi-
dence objected to by the defendants. The president of Hoyt
Manufacturing Corp., Harry Hoyt, was called as a witness. 4
by the plaintiff io testify in connection with an alleged” a at-'
iThe record dves not contain any disposition by the court of de-
fendant-Westinghouse’s motion to strike certain evidence from the
21
tempt by ALD to have Hoyt Manufacturing Corp., a man-
ufacturer of dryers, slow down delivery of a dryer to plain-
tiff. When Hoyt was asked at the trial if defendant ALD’s |
‘employee Rowan had spoken to him about an order from
plaintiff, Hoyt replied that he had no recollection of such
a conversation. Plaintiff’s counsel then asked: ‘‘Do you
recall testifying on deposition in this case .. .?’ Hoyt re-
plied: ‘‘I recall making a deposition, yes, sir.’’ Plaintiff’s
counsel then read from the deposition,’ stating he was so
doing for two purposes, to refresh the witness’ recollec-
tien and to indicate a prior inconsistent statement. At
the conclusion of the reading, plaintiff’s counsel asked
Hoyt: : |
~- **Q. Do you recall so testifying, Mr. Hoyt?
A. If that is my deposition, I do.
Q. The statements you made there are true? -
A. They would be, yes, sir.’’
be.
~ On cross-examination Hoyt was asked :
‘XQ. Do you have any memory now of the conver- -
sation you had with Mr. Rowan?.
A..Other than what the deposition shows. [sic]
XQ. Did Mr. Rowan make any suggestions to you
that the shipment to Wray Equipment Company be
delayed?
A. I do not reeall.’’
Earlier in his testimony when Hoyt was questioned by
plaintiff’s counsel in’ ne to the delay of shipment he
. said:
‘*Q. You have no recollection of these transactions,
independent of the documents I must show you?
A. No, I haven’t. I haven’t had access to them.
It has been, what. four or five years?
22
Q. You-do recall that’ you testified at some length
about these transactions?
A. Ido.
The Court: You knew you were going to be a
witness here? ,
The Witness: Yes, sir.
The Court: You knew you had answ ered some
questions by way of deposition?
The Witness: Yes, sir.
The Court: Did it occur to you it would have been
a good idea to refresh your recollection on the ques-
tions that you were asked in the deposition, at the
time it was taken, when you knew you were going tw ‘
be here? ¢ 3 .
The Witness: Mr. Malloy [counsel for’ plaintiff| ~
said that he woul! have the deposition here."’
In the deposition read during the trial Hoyt had stated:
‘*That was one of my reasons {for delaying the plaintiff's
order}. I tried to. exercise a certain amount of prudence.
If a man is going to hold me up, I am not going té find
out whether he has a real bullet in his gun."’ The’ district
judge in commenting on this testimony recognized that
Hoyt was not testifying from his present recollection and
said: ‘‘Figuratively speaking, someone put a gun to hi-
head ... He [Hoyt] gave an answer four ang a half year-
ago, and he very frankly and honestly said: ‘If I gave
that answer under oath, my memory then was better than
now, and ‘that is the answer’ ” and that is what I would ex-
pect a good citizen to say .
‘The cases are clear, leeds that a deposition used in
an attempt to refresh the witness’ recollection is not itself
admissible as evidence. See U. S. v. Socony-Vacuum (il
Co., 310 U.S. 150, 234 (1940); 5 Wigmore, Evidence (1415
(3d ed. 1940). When a witness is unable to recall a pas!
. 23
transaction, the majority of the cases do not allow a_prior.
statement of the witness concerning tliat transaction to be
introdaced 4s a prior inconsistent statement. See Corsick
v. Boston Elevated Ry., 218 Mass. 144, 105 N.E. 600 (1914); .
3Wigmore, Evidence §1043 (3d ed. 1940).? We believe that
the district court erred in receiving the deposition of plain-
tiff’s witness Hoyt. The incorporation of Hoyt’s gun
figure of speech from his deposition in the court’s opinion.”
as well as frequent references to it by the court during the
trial indicates that defendants were prejudiced by the ad-
mission into evidence of the deposition. | ;
There is another matter which arose during the trial
‘that warrants cominent because it may be met again in
a new trial. Parts of several oth® depositions were pro-_
perly admitted and read into evidence by plaintiff’s counsel. —
When counsel for the defendants sought then to have ir
troduced other parts of these*depositions relevant to those
read into evidence, relying on F.R.Civ.P. 26(d) (4), the dis-
triet court refused to allow such ere The court
indicated that defendants could intre'uce the desired parts
at a later time? ‘
We have been directed to no cases bearing directly on
this point. Rule 26(d)(4) provides:
‘If only part of a deposition is offered in evidence
by a party, an adverse party may require him tp in-
‘troduce all of it which is relevant to the part intro-
duced, and any party may introduce any other parts.’’
_ _ 2 Wigmore states that the basis of this exclusion is the possibility of |
improper testimonial effect being given to the prior statement. The
instant case presents a forceful example of this danger.
_- Toward the end of the trial the plaintiff's counsel offered the parts
read by defendants’ counsel as part of plaintiff's case and the court so
noted. We do not believe thag this step obviated the defect pointed
out below. | ;
24
The rule provides a methfd for averting, so far as pos-
sible, any misimpressions from selective use of deposition
testimony. The opposing party is entitled under the rule
to have’the context of any statement, or any qualifications
made as a part of the deponent’s testimony also put into .
v-evidence. We believe that the spirit of the rule dictates that
the opposing party should be able to require the introduc.
‘tion of the relevant parts of the deposition testimony at
least at the conclusion of the reading of the deposition. I
the instant case the supplementary relevant testimony au.
thorized by the rule was separated by more than 1,000 .
_ pages of transcript from the deposition testimony intro.
duced by thé plaintiff: Ipseems to us that such wide separa-
tion of the relevant parts of a deposition unduly impedes
the orderly consideration of the deposition testimony, even,
in a non-jury case.
We conclude from a careful reading of the record of “ip.
proximately 2,000. pages that the trial judge was prejudice»
in favor of the plaintiff. Several indications of this preju-
dice are’ manifest in his ‘‘cross-examination’’ of certain
of the defendant’s witnesses. Perhaps his’ prejudice wa-
a result of Hoyt’s reference ‘to a gun in his deposition.
which appears from the record to have made an extreme
and unreasonable impression on the trial. judge. What
ever the cause, the court’s prejudicial — warrants a
new trial before another judge.
We express no opinion on the merits of this case. ;
Judgment wiil.be entered vacating the judgment of thr
district court and remanding the case for anew trial con-
' sistent with this opinion.
29
APPENDIX B
. Statutes Involved,
Section 1 of the Sherman Act, 15 U.S.C. ‘J so far as
- pertinent : cane <a
Every contract, combination in the form of trust or ‘
otherwise, or conspiracy, in restraint of trade or com-
merece among the several States, or with foreigi na-
tions, is declared to be illegal... °
Section 2 of the Sherman ‘Act, 15 U.S.C. §2 so far as
pertinent: ,
Every person who shall ‘monopolize, or attempt to
monopolize, or ¢ombine or conspire with any other
person or persons, to monopolize any part of the trade.
or commerce among the several States,.or with foreign
nations, shall be deemed guilty of a misdemeanor .. .
Section 3 of the Clayton Act, 15 U.S.C. G14:
It shall be unlawful for any person engaged in com-
merece, in the course of such commerce, to lease or
make a sale or contract for sale of goods, wares, mer-
chandise, machinery, supplies, or other commodities,
whether patented or unpatented, for use, consumption,
or resale within the Unmted Statics or any Territory
. thereof or the District of Columbia or any insuiar pos-
session or- other: place under the juxisdiction of the
United States, or fix a price charged therefor, or dis-
count from, or rebate upon, such price, on the con-
dition, agreement, or understanding that the lessee o1”
purchaser thereof shall not “ise or deal in the goods,
26
a
wares, merchandise, machinery, supplies, or other
‘commodities of, a competitor or competitors of the les-
sor or seller, where the effect of such lease, sale, or
contract for sale or such condition, agreement, or .
understanding may be to substantially lessen competi
tion or tend to create a monopoly in any line of com
merce. |
.
a .
Section 4 of the Clayton Act 15 U.S.C. S15:
¥
#2
Any person who shall be injured in his busines.
‘property by reason of anything forbidden in the anti
trust laws may sue therefor in-any distriet court of,
the United States in the district in which the defendant
resides or is found or has an agent,-without respect to
the amount of controversy, and shall recover threefold
the damages by him sustained; and the cost of ~<uit,
including a reasonable attorney's fee.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.