243 F. 1 | 3rd Cir. | 1917
This is an action brought under the seventh section of the Sherman Act (Act of July 2, 1890, c. 647, 26 Stat. 209) to recover damages for injuries alleged to have been sustained in consequence of conduct thereby forbidden and declared unlawful.
The plaintiff’s case may be briefly stated as follows: Before October 14, 1899, the parties to -this action were active competitors in importing bananas into the United States and selling them in interstate commerce. On that date, the defendant, for the purpose of destroying, competition and monopolizing the importation of bananas and controlling their distribution and price in the several states, purchased from various stockholders of the plaintiff one-half of its capital stock, and procured the voting power of one additional share.
By force of the control thus obtained, the defendant dominated the affairs of the plaintiff, elected its officers, and through them directed its policy in a manner that unreasonably restrained trade and created in itself a monopoly in the banana business contrary to law.
To attain this end the defendant, acting through officers of its selection, compelled the plaintiff to enter into contracts with the Fruit Dispatch Company, a corporate subsidiary of the defendant, whereby the plaintiff was required to distribute all its fruit in the manner and dispose of it at prices determined by that company, and by various acts greatly reduced the acreage and increased the cost of banana planting upon the plaintiff’s plantations, sold its fruit at greatly reduced prices compared with what would have been obtained if the fruit had not been sold through the Dispatch Company, curtailed importations, increased operating expenses, wasted money in unnecessary competition, leased certain of its properties for inadequate rents to irresponsible tenants, neglected and abandoned other properties, and permitted deterioration of its shipping facilities and equipment. From all these things, the plaintiff claimed to have suffered actual damage to the amount of five million dollars, to be trebled by the provision of the Sherman Act. Stated generally, the plaintiff’s principal claim of damage was the loss of profits which it would have
For defense the defendant offered evidence tending to prove that no injury had been inflicted upon the plaintiff by anything it had done or had permitted to be done, but, that, on the contrary, its control had been to the plaintiff’s financial advantage; that if it inflicted any injury upon the plaintiff it was done without intent to injure; and that the conduct of its control and its management of the plaintiff’s properties and the marketing of its product through the channels employed were pursued according to the terms and within the spirit of contracts sought by all the plaintiff’s stockholders and entered into between the defendant and all the plaintiff’s stockholders (save one), in which contracts the plaintiff corporation actively participated and all its stockholders (including this one) freely acquiesced through a long period of years, so that, the defendant maintained, if its conduct be found to offend the provisions of the Sherman Act, then the plaintiff was in pari delicto and was without right to recover. The defendant further pleaded the statute of limitations.
The jury rendered a verdict for the defendant; on the judgment entered, the plaintiff sued out this writ of error.
This trial, covering a period of forty-five days, produced a record of unusual length. Eighty-four errors are assigned. While some of the assignments bear upon separate and unrelated matters, it has been possible, with the assistance of counsel, to so group the most of them, that the substantial questions may be considered and determined upon broad principles of law.
Before we approach the trial and follow its trend, we shall dispose of a number of assignments of error arising out of certain action which the court took before trial.
That was an action against the United Fruit Company and others, instituted by a stockholder of the plaintiff, and concerned the defendant’s stock control over the plaintiff. The findings recited in detail the manner of its acquisition and exercise. The plaintiff conceived that many of the facts upon which the decree in that case was based would sustain a judgment in this case, and therefore their submission and determination in that case constituted res judicata in this case. If that were so, then manifestly the plaintiff would have the great advantage of being relieved of the necessity of proving here what had there been judicially determined, and the defendant would have the corresponding disadvantage of being concluded thereby. So in order to ascertain before trial what the court would decide at trial as to whether and to what extent the findings in the Steele Case were res judicata of the issues in this case, the plain
Having before it the full record of the Steele Case and only so much of the record of this case as had then been made by the pleadings, the trial court heard argument and stated in advance the rulings which it would make at the trial.
To the first question—whether or not the findings and conclusions in the case of Steele v. United Fruit Company in the District Court for Louisiana are res judicata as to any of the issues in this case—the court stated it would rule that:
“Such of the findings and conclusions in the Steele Case as are material and essential as a basis for the decrees therein are res judicata in so far as they are material and relevant to the determination of the issues in this case.”
To the next question—to what extent are the findings and conclusions in the Steele suit res judicata—the court announced that they would be held to be “res judicata only in so far as they are evidence—
“1. To show domination and control of the Bluefields Company by the United Fruit Company up to the time of the commencement of the Steele suit;
“2. To show intent to dominate and control;
“3. To show intent through domination and control to injure the business or property of the Bluefields Company in restraint of interstate or foreign trade or commerce.
“4. To show that, through such domination and control, injury was done resulting in damage to the business or property of the Bluefields Company within the period of the applicable statute of limitations.
“They are not res judicata as to the extent of damages suffered by the Bluefields Company, because the extent of damages was not in issue in the Steele Case.”
The court then passed upon and designated the particular findings and conclusions of th© special master (being thirty-four in number) which were within its ruling. When the case came on for trial and the record grew from pleadings of parties to testimony of witnesses, the court, acting within what appears to be a deliberately made saving clause in its advance statement, refused to hold as res judicata some of the findings it had previously designated as such, because found immaterial and irrelevant to the issues in this case as they had developed. The plaintiff therefore claims, under appropriate assignments, that the court erred greatly to its prejudice: _ (I) By refusing to admit as res judicata certain findings and by striking out others; (2) in admitting evidence offered by the defendant tending to contradict matters' concluded by the findings; and (3) in neutralizing or devitalizing certain other findings, duly admitted, by charging the jury in a manner inconsistent with their proper application.
We think no criticism should be directed to the trial judge for his change of attitude at trial, for to determine before trial, merely from examination of pleadings and before the case has broadened into tes
lint as the rulings when made at the trial were duly excepted to, the questions still remain whether the matters to which they related were res judicata. In order to determine these questions we must inquire into the Steele Case and ascertain what was that case, what were tho issues raised and contested, the nature of the findings, the character of the relief sought and afforded, and what was there decided.
The Steele Case was begun by bill filed in the Circuit Court of the United States for the Eastern District of Louisiana, on December 3, 1909, by Frederick M. Steele (on his own behalf as well as on behalf of all other stockholders of the Bluefields Steamship Company, who chose to intervene) against United Fruit Company, Bluefields Steamship Company, Jacob Weinberger, Charles Weinberger, and certain other individuals, officers and stockholders of both companies. Adolph Se-gal, a stockholder, intervened, and Simon and Emanuel Sieinhardt, co-defendants, filed cross-bills, all praying substantially for the same relief; the remaining parties answered. Issue being joined, the case was referred to a special master.
As the reference was made upon the pleadings, and the decree upon, the findings, we must first inquire into tho bill. The staling part of the bill recited acts and conduct of the Fruit Company in the unlawful acquisition and exercise of control over the Bluefields Company. Much of this conduct, stated at length and in detail, was pleaded we think rather as inducement or matter leading up to the matter particularly complained of and from which relief was sought. The matter complained of was: (1) That the Fruit Company controlled by stock ownership the Bluefields Company; (2) that its control was hidden by an assignment of its stock to the Weinbergers. The relief prayed for was
The master’s findings .of fact, being fifty-three in number, sustained not only the main allegations of the bill, that the Fruit Company had acquired stock control in the Bluefields Company and had exercised that control contrary to Louisiana law, upon which was based the complainant’s right to the relief prayed and ultimately granted, but sustained in detail the allegations of acts and conduct of the Fruit Company, by which that control, made unlawful by the law of Louisiana, had been acquired and exercised (such findings of acts and conduct being the principal matters urged as res judicata of the issues of the case now before us).
Upon the master’s findings the court entered its decree. By the decree the court (1) overruled exceptions to the master’s report, (2) dissolved the preliminary injunction enjoining an election of officers and directors of the Bluefields Steamship Company, (3) directed an election of that company to be held by the master, (4) enjoined the Fruit Company and Cháríes and Jacob Weinberger from voting at that or any other election of the Bluefields Company the shares of the capital stock of that company assigned by the former to the latter, and (5). maintained the receiver in control of the property of the Bluefields Company.
Upon petition previously presented bj'- the receiver representing that he believed “that the Bluefields Steamship Company, Limited, has a very large, well-founded and provable claim for damages against the United Fruit Company and that suit should be prosecuted on behalf of said Bluefields- Steamship Company, Limited, and against the said United Fruit Company for recovery of such damages,” and praying leave to intervene in a suit then brought or to be brought, or to insti
We.have recited at some length the offense charged and relief sought and granted in the Steele Case in order to disclose the controversy in that case, and show the matters to which the allegations of the hill were addressed, the inquiry and findings of the master were directed and the decree of the court extended.
The inquiry of the master followed the stating part of the bill, which covered a wide range and dealt with the relations of the two. companies —the dominant conduct of the one and the servient conduct of the other—through the period of years they were in business association. As the District Judge (Louisiana) said in his opinion:
“Tlie master endeavored to deal specifically with, all the contentions of the parties and to find the facts with particularity, those collateral as well as those material to the main issue.”
Pie further said:
“There appears to be evidence to sustain all of the master’s findings of fact, though I have not examined with particularity those matters not bearing directly on the main issues before me.”
The “main issues,” clearly shown not only by the court’s decree but by its accompanying opinion (the decree authorizing the receiver to bring this action having already been entered on his petition), were (1) whether the two corporations had been competing corporations, (2) whether one had acquired and exercised over the other a control forbidden bi- the laws of Louisiana, and (3) whether that control had ceased and terminated by the transfer of its shares to the Weinbergers. Some of the findings manifestly did not bear upon these main issues. Under no theory cah they be res judicata in this action; while those which were material to the main issues are res judicata and concluding upon the defendant in this action only if the matters there determined and here upon trial were in controversy between the same parties and were identical.
The adversary parties in this case were not (at least by alignment) adversary parties in the Steele Case. In that case, the controversy was between Steele and the Fruit Company. Other persons and corporations conceivably related to or affected by that controversy were made parties to the action in order that they might be reached by the decree. The Bluefields Company and the Fruit Company were co-defendants. As both were present as parties, the plaintiff here maintains that both are bound by the judgment. This contention is based principally upon what is unquestionably true, that in an action in equity the mere alignment of parties does not determine their position in the action, or affect the assertion of rights by or against them upon issues raised in which they are involved, or alter the force of the decree when it includes, them. But the doctrine of res judicata, in requiring identity of parties, demands something more than their mere presence in the two actions howsoever aligned. It requires that they shall- be parties to the issues raised, asserting or having an opportunity of asserting their rights, and declares that they shall be bound in so far and only in so far as the decisions embrace those issues and determine their rights. 16 Cyc. 196; 24 Am. & E. Cyc. (2d Ed.) 732, 753; Corcoran v. C. & O. Canal Co., 94 U. S. 741, 24 L. Ed. 190; Snell v. Campbell (C. C.) 24 Fed. 884; South Covington, etc., Ry. Co. v. Gest (C. C.) 34 Fed. 628; Stearns v. Lawrence, 83 Fed. 738, 28 C. C. A. 66; Montgomery v. McDermott (C. C.) 99 Fed. 502; Harmon v. Auditor, 123 Ill. 122, 13 N. E. 161, 5 Am. St. Rep. 502; Mitchell v. Banks, 180 U. S. 471, 480, 21 Sup. Ct. 418, 45 L. Ed. 627.
The parties to the Steele Case were Steele, and a certain intervener, as plaintiffs, and United Fruit Company, sundry persons, and finally Bluefields Steamship Company, as defendants. The objects of tire suit, as indicated by the prayer of the bill, were to enjoin the Fruit Company from voting its stock in the Bluefields Company at an election of that company, and to secure the appointment of a receiver for the Bluefields Company (not then so stated but obviously for the purpose of bringing the action we are now reviewing). The charges of wrongdoing were directed against the Fruit Company, developing a situation which, if true, justified an injunction against the Fruit Company and the appointment of a receiver for the Bluefields Company. Upon the issue between Steele and the Fruit Company as to an unlawful stock control, the Bluefields Company was merely a nominal and passive party, while upon the issue between Steele and the Blue-® fields Compafiy as to the expediency of the appointment of a receiver for the Bluefields Company, the Fruit Company was presently interested only as a stockholder, though prospectively interested as a party in another action. Both made answer directly to the bill. Both de- ■ nied its charges. Neither filed a cross-bill against the other. There was thus no issue raised or contested between the two, a requisite to the doctrine of res judicata. 1 Van Fleet on Former Adjudication, § 256; Peters v. St. Louis, 226 Mo. 62, 125 S. W. 1134, 21 Ann. Cas. 1069. The finding that the Fruit Company held stock control of the
“A riglit, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined mast, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” Mitchell v. National Bank, 180 U. S. 471, 21 Sup. Ct. 418, 45 L. Ed. 627; Hopkins v. Lee, 6 Wheat. 100, 5 L. Ed. 218.
We must therefore inquire what “questions” and “facts” were “distinctly put in issue and directly determined * * * as a ground of recovery” in the former action, and what are the like matters in controversy in this one. We may do this by inquiring, what were the things sued for in the two actions? Bull v. Hopkins, 7 Johns. (N.Y.) 22; 5 M. & W. 109.
The things sued for in the Steele Case, as we have found it necessary to say several times, were (1) an injunction against the Fruit Company from voting its stock in the Bluefields Company in violation of the law of Eouisiana, and (2) the appointment of a receiver for the Blue-fields Company (with authority to bring this suit). The thing sued for in this case is damages for injuries arising out of a violation of a law of the United States. Both actions, we assume, may be maintained by proof of some of the same facts. Based upon these facts, the decree in the Steele Case was two-fold: (1) It was a judgment that the Fruit Company had violated a law of the state of Eouisiana. It was not a judgment that the Fruit Company had violated a law of the United States. (2) It was a judgment that, in finding that the Fruit Company had violated a law of Eouisiana, enough was shown that it had also violated a law of the United States, with consequent injury to the Bluefields Company, to justify the appointment of a receiver for that company and his authorization to institute suit for damages against the Fruit Company. The judgment, in so far as it affected
If, instead of adjudging the master’s finding sufficient to justify the appointment of a receiver for the Bluefields Company with authority to bring this action against! the Fruit Company for a violation of the Sherman Act, the court had adjudged .the findings insufficient and had thereupon dismissed Steele’s bill, surely that adjudication would not have been a judgment that the Fruit Company had not violated the Sherman Act, nor would it-have made the findings upon which it was based res judicata pleadable by the Fruit Company in an action by the Bluefields Company for a violation of the act, nor would it have concluded the Bluefields Company from bringing such an action. This is upon the principle that no one can take advantage of a judgment or decree if he would not have been prejudiced by it if it had- been otherwise. Chandler’s Appeal, 100 Pa. 262, 265; Chantangco v. Abaroa, 218 U. S. 476, 481, 31 Sup. Ct. 34, 54 L. Ed. 1116; Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127, 32 Sup. Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875; Penfield v. Potts, 126 Fed. 476, 479, 61 C. C. A. 371.
As between the Bluefields Company and the Fruit Company there is not even a remote resemblance between the things sought and recoverable in the two actions, nor is there as to them a resemblance between the controversies in the two actions. We are therefore impressed that the difference in the adversary parties, in the matters in controversy and in the relief sought and matters decided in the two cases makes the evidence in-the first wholly inadmissible as res judicata of the issues in the second.
We therefore dismiss as without merit all assignments of error relating to questions of res judicata.
There are two groups of assignments charging error to tire court in certain rulings upon evidence and instructions upon the law. These rulings and instructions, appearing repeatedly in one form or another throughout the trial, disclose what the court conceived to.be the under
In this aspect of the case the learned trial judge discovered very early in the trial that much of the law announced by courts in actions brought under the Sherman Act by independent competitors for injuries inflicted by unlawful combinations was not applicable to this case. Instead of having, as in such cases, two clear issues, one as to whether the defendant was an unlawful combination and the other as to the fact of injury done and damages sustained,'there arose in this case (1) the controlling question whether the plaintiff had not itself violated .the Sherman Act, together with the defendant, in forming an unlawful combination which did the acts complained of, this question being dependent upon other questions (2) as to the manner in which that combination was formed; (3) its nature and the extent of control over the plaintiff intended thereby to be conferred upon the defendant; (4) the manner of its exercise, whether within or without the scope of the combination, and (5) not only whether injury was inflicted, but (6) if inflicted, whether it was the natural and probable consequence of the combination as formed, or extended beyond it, and was committed with intent to injure and destroy the plaintiff.
Issues of acquiescence and intent arose at once from the very nature of the acquisition of control and its exercise, for if the things complained of were things agreed to or acquiesced in, then manifestly if they were unlawful, the plaintiff was in pari delicto and was without right to recover. If, on the contrary, they were things not agreed to
The court therefore consistently ruled and finally charged that in all these acts there entered the elements of the plaintiff’s acquiescence and of the defendant’s intent to injure. Of this the plaintiff now earnestly complains, contending that the acts which occasioned the injury were torts, and that in torts the elements of intent to inflict injury and of acquiescence in the wrongs done do not enter. Ross v. Pines, Wythe (Va.) 69; Nagy v. Press Co., 16 Manitoba, 616; Stephenson v. Brown, 147 Pa. 300, 23 Atl. 443; McCloskey v. Powell, 123 Pa. 62, 16 Atl. 420, 10 Am. St. Rep. 512.
Taken in the abstract and without reference to the facts of the case, that is the law. When in this class of torts unlawful combinations or unlawful agreements necessarily operate to unduly restrain trade and inflict injury, questions of willful' purpose or conscious design to violate the law and inflict injury have no place. Addyston Pipe Case, 175 U. S. 211, 214, 234, 20 Sup. Ct. 96, 44 L. Ed. 136; Northern Securities Co. v. United States, 193 U. S. 197, 331, 24 Sup. Ct. 436, 48 L. Ed. 679. The courts have held that so far as intent is involved (that is, intent either to violate the law or thereby to inflict injury) persons so combining or contracting.are presumed to have intended the necessary, natural and probable consequences of their acts and agreements, and if their effect is to unduly restrain interstate trade with consequent injury, then the combination is illegal and the participants are chargeable with die consequences and are liable for the damages resulting. Continental Wall Paper Co. v. Voight, 212 U. S. 227, 29 Sup. Ct. 280, 53 L. Ed. 486; Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815; O’Halloran v. American Sea Green Slate Co. (D. C.) 207 Fed. 187, 189. There in no question about this law when the damages inflicted by an unlawful combination fall upon one not involved in the combination and not participating in violating the law. But here there was evidence that the plaintiff, acting through all its stockholders, had .combined with the defendant to restrain trade and commerce and to build up a monopoly between them. In prescribing the zone for banana cultivation and in limiting the purchase price and regulating the importation of bananas into the United States, the parties unquestionably effected thereby a combination which in some, degree restrained trade and measurably created a monopoly. If that combination unlawfully restrained trade and created an unlawful monopoly, as averred by the plaintiff, then certainly when the plaintiff complains of injury done by the defendant, the question arises ex necessitate rei whether the injury complained of was the natural and the probable consequence of the combination or was in consequence of conduct pursued beyond its scope with intent to inflict injury not within the agreement of the parties.
The plaintiff’s claim was in effect that it did not reap all the profits which the combination should have yielded because of the manner in which the defendant exercised its control and conducted the plaintiff’s business. The plaintiff’s business wás intended to be conducted by the
It is impracticable to rehearse even briefly the testimony of the case, but the theory upon which the court tried the case and submitted it to the jury runs through its most elaborate and carefully delivered charge and is disclosed by a few excerpts.
It appears that the Bluefields Steamship Company was a corporation engaged in the business of importing bananas into the United States. It was a small combination of one-time competing concerns having a rather close control of the banana business in Bluefields, Nicaragua. In June 1899, the United Fruit Company, a larger combination, engaged in the same business elsewhere in Central America, entered the Bluefields region in competition with the Bluefields Company. In August 1899, after two months’ competition, the directors of the Blue-fields Company sent a committee to New York or Boston for the purpose of coming to a trade understanding with the Fruit Company. The authority which the board of directors conferred upon the committee in its proposed dealings with the Fruit Company extended to the fixing of prices by a combination of fruit importers, the limitation of importations, the fixing of uniform freight and passenger rates, the regulation of prices at purchasing points, and division of territory. This committee was appointed upon the unanimous vote of the directors on motion made by one Simon Steinhardt, who figured conspicuously in the matters now in litigation. As a result- of the negotiations three contracts were entered into on October 14 following. Of the three contracts signed on that date, one was between an officer of the Fruit Company acting for that company, and stockholders of the Bluefields Company, and was signed by the president of the Fruit Company and all stockholders of the Bluefields Company excepting Simon Steinhardt. After providing that the stockholders should not compete with the Bluefields Company in growing, importing or selling tropical fruit in Nicaragua, Honduras or New Orleans for ten years, the stockholders of the Bluefields Company agreed to sell five hundred shares or one-half of its capital stock to the Fruit Company. In pursuance of this undertaking, each shareholder of the Bluefields Company (excepting Simon Steinhardt) transferred one-half of his shares to a designated person for the Fruit Company. Simon Steinhardt did not sign the contract or assign one-half of his shares, it being testified that he stated he did not wish to sell his shares, but thaL, however, “one-half the joint holdings of him and Emanuel Steinhardt would be covered by the contract.” Emanuel assigned all his shares, sixty-two and one-half, and Simon retained the same number, sixty-two and one-half. By the assignment of one-half its stock and an arrangement by which the voting power of an additional share was conveyed, the Eruit Company acquired stock control over the Bluefields Company.
The second contract was between the Fruit Company and stockholders of the Bluefields Company, similarly signed by the stockhold
The third contract was between the Bluefields Company and Fruit Dispatch Company (a subsidiary of the Fruit Company), made the Dispatch Company the sole selling agent of tide Bluefields Company, and provided for the fixing of prices. This agreement was unanimously ratified by the board of directors of the Bluefields Company at a meeting at which Simon Steinhardt was present, there being testimony that Steinhardt urged and with the others approved the whole arrangement including the contracts of October 14, 1899.
It would add nothing to the discussion to repeat the evidence upon which these questions were submitted to the jury. The point for our consideration is whether they were properly submitted. As they were submitted on the theory of the law which we have found the trial court properly applied to the peculiar facts of this case, we find that they were determined by the verdict of the jury upon evidence which was sufficient to sustain it.
' “When a cause of action has been fully b'arrefl by the laws of the state or country in which it arose,, such bar shall be a complete defense to an action thereon brought in any of the courts of this commonwealth.”
It is a very close question whether that provision of the Pennsylvania Act did not throw the plaintiff back upon the statute of limitations of Louisiana as the place where the damage was done and the -cause of action arose. Under the statute of that state, the limitation in .actions in tort is one year. Civil Code, arts. 3536, 3537; Warner v. New Orleans and Carrollton R. R., 104 La. 536, 29 South. 226. The trial court however did not apply the Louisiana one year limitation b-y force of the recited provision of the Pennsylvania Act, but applied the six year limitation of the Pennsylvania Act. If tire court’s refusal to .apply the one year Louisiana limitation by direction of the Pennsyl-. vania statute was error, it was beneficial rather than prejudicial to the plaintiff and is no ground for reversal. The only question is whether ■the six year limitation of the Pennsylvania Act was properly applied. During the period in question the plaintiff was undoubtedly under the •stock control of the defendant, which elected its officers and directed its affairs. Yet, until this suit-was contemplated, we find no evidence
After a full and painstaking consideration of the many errors assigned in this very considerable record, we are of opinion that the trial court committed no reversible error.
The judgment below is affirmed.
As to the plaintiff’s action the court said: “The plaintiff's case is based on an unlawful combination and unlawful contracts.” This unlawful combination is the one made by stockholders of the plaintiff with the defendant, and tlie unlawful contracts are the two made between stockholders of the plaintiff and the defendant, and one made between the plaintiff and the defendant. Upon the subject of the defendant’s unlawful acquisition of control and its intent to injure the plaintiff, the court said:
“In other words, to put it briefly, the plaintiff’s claim is based on injury through the destruction of competition, which is alleged existed, and which ought to have existed, between it and the defendant, and the injuries are based or the damages for injuries are based on the losses which the plaintiff claims were caused by the destruction of that competition.
“All of these averments in the statement of claim set up unlawful acts, and the question then arises as to whether the plaintiff was a party to those unlawful acts. While the law prohibits unreasonable restraint of trade, it does not permit parties to take an unreasonable position with regard to acts in restraint of trade, and where two parties are equally guilty of a, violation ol’ the provisions of the Sherman Act, it does not permit one of the guilty parties to recover from the other. The; policy of the-law is that as between two wrongdoers, who are jointly responsible for the conditions of which one party complains, the law leaves them in the position in which It finds them, and the courts will not interfere to iiroteet one wrongdoer against the other.
“I am outlining this at the outslart so that you may bear these principles in mind when you come to consider the evidence as to the circumstances under which the alleged unlawful combination was formed, the alleged unlawful contract was entered into, and the alleged unlawful use that was made of the coni rol, which it is claimed the defendant exercised over the plaintiff.
“If, under all the evidence, you find that the defendant did obtain a control of the plaintiff, and used that control in the restraint of interstate commerce, with the view of monopolization of tlie banana business in interstate trade and commerce, and did various unlawful acts which the plaintiff alleges it did, and did these things without the acquiescence or consent of the plaintiff, with the intent to injure the plaintiff, then it would be your duty to return a verdict in favor of the plaintiff for the amount of damages which It has suffered by reason of the injurious acts.
“If, however, you find that there were such unlawful acts, and there was such an unlawful combination, and the plaintiff through the unanimous consent of its stockholders, joined in forming the unlawful combination, joined in entering into the alleged unlawful contracts, and acquiesced iu the use of alleged unlawful control, then the plaintiff cannot recover in this case, and it would be your duty to return a verdict for tlie defendant. And if you should find that there was an unlawful combination, an unlawful control, an unlawful use of tbe control, and you should fail to find that the plaintiff was injured thereby, even though the control was exercised, without consent, then your verdict should be for tbe defendant because tbe plaintiff cannot recover in this case unless it was injured. * * *
“If from all the evidence you find that at that time it was the purpose, not only of the United Emit Company, but also the Blueflelds Steamship Company, through its direction, and with the unanimous consent of its stockholders, to make that combination, to destroy competition, or tlie arrangement by which*16 this competition was destroyed between the two parties, and the contract with the Fruit Dispatch Company were entered into under the same circumstances, then you would be justified, and I instruct you to find in that ease that both parties were equally guilty of a violation of the Sherman Act, if either was.
“If the defendant was not guilty of a violation of the Sherman Act, it is not liable in this case. If by doing these acts with the consent of the plaintiff, it was guilty of a violation of the Sherman Act, it follows that the plaintiff was equally guilty bf a violation of the Sherman Act in forming a combination and entering into contracts in restraint of trade, and for the destruction of competition between these two companies.”
Upon the subject of the defendant’s unlawful exercise of control lawfully acquired over the plaintiff, and of its intent- to injure, the court said:
“The further question arises whether in case the contracts were not intended' at that time to be contracts in violation of the Sherman Act, the defendant thereafter made an unlawful use of the combination, that is to say, exercised its control to do injurious acts, which had the purpose of destroying competition in this combination, and the monopolization of the banana business in the defendant. As to those acts, if you find from- the evidence that they were done with the acquiescence of the board of directors and stockholders, of the Bluefields Steamship Company, then the Bluefields Steamship Company would be in exactly the same position as“ to the use of that control that it would be in in the entering into of this combination and the contracts with the Fruit Dispatch Company at the outstart. So that in either of these cases it would be your duty to return a verdict for the defendant without going into any question as to whether or not the plaintiff was injured. If, on the other hand, you find from the evidence that the defendant compelled the plaintiff to enter into this Fruit Dispatch Company contract by reason of the stock control obtained without the unanimous consent of the stockholders, and that through the exercise of power through the Fruit Dispatch Company and through control obtained by the ownership of stock, that it alone had the purpose of restraint of trade, and a destruction of competition between the two, and that in the exercise of the control and in the carrying out of the purpose, it injured the plaintiff in its business, then it would be your duty to return a verdict in favor of the plaintiff. * * * ”
“The plaintiff cannot recover if, prior to the acquisition by Steele of his shares in the Bluefields Steamship Company, all the stockholders had acquiesced in the control of the United Fruit Company and in the various things now complained of by the plaintiff.
“I instruct you that acquiescence by all of the stockholders of the plaintiff in the exercise of the voting power by the defendant upon the shares held by it had the same legal effect as original consent to the formation of the illegal combination, and for any acts or omissions while such acquiescence continued the plaintiff cannot maintain this action.”
In addition to what is found in these excerpts upon the element of intent, the court repeatedly charged in different phraseology what it said in affirming a point:
“If you are not satisfied by preponderance of evidence that the defendant in this case intentionally injured the plaintiff, then I charge you that your verdict must be for the defendant.”
And again:
“In case you find that intentional injury has been done the plaintiff company by the exercise of control by the defendant, I instruct you that the proper measure of- damage in this case is the difference between what the plaintiff company actually earned during the continuance of the control of the defendant, and the sum which it would have earned if there had been no control and if the -plaintiff, and defendant had been strictly competitive.”
