South-East Coal Company v. Consolidation Coal Company, South-East Coal Company v. United Mine Workers of America

COMPANY, COAL SOUTH-EAST Plaintiff-Appellee,

v. COMPANY, COAL

CONSOLIDATION Defendant-Appellant. COMPANY, COAL

SOUTH-EAST Plaintiff-Appellee, AMER- OF WORKERS

UNITED MINE ICA, Defendant-Appellant. 19622, 19623.

Nos. Appeals, States Sixth Circuit.

Nov.

7f>9

77I Operators minous Coal Association designed (BCOA) which to force pro- South-East and other small coal Kentucky ducers in Eastern out of bituminous coal After trial business. lasting weeks, six returned a plaintiff, verdict for South-East Coal $2,410,452. amount tripled ($7,231,356) This amount was attorneys’ required by 15 U.S.C. § bringing allowed, $335,000 fees of judgment $7,566,356. total We affirm. Pa., Pittsburgh, Schmidt, Harold R. Co.; Anthony J.

for Consolidation On numerous occasions this Dixon, Rose, Polito, Pitts- Schmidt & conspiracies considered similar Eblen, Eblen, burgh, Pa., Amos How- large H. between the bituminous UMW Lexington, Ky., Milner, on brief. ard general & producers explana- coal and for a description tion C., Washington, nature of the Carey, D. L. Edward case, America; contended following Mine Workers particularly Owens, cases are illumi- Combs, P. Willard Harrison nating. Hazard, United Mine C., Noble, Workers Amer- Washington, D. H. B. Pennington, 664, Knoxville, Tenn., ica v. 381 U.S. 657 at Ky., Rayson, M. H.E. 1585, (1965); 85 Va., S.Ct. 14 L.Ed.2d 626 Boiarsky, Charleston, on E. W. Company Tennessee Consolidated brief. Workers, v. United Mine 416 F.2d 1192 Tenn., Rowntree, Knoxville, John A. (6th 1969); Ramsey at 1193 Cir. v. Stoll, Downing, appellee; C. Gibson Workers, F.Supp. United Mine 265 388 Fowler, Park, Lexington, Ky., Keenon & (E.D.Tenn.1967); Penning- at 393 Robertson, Rowntree, Knox- Fowler & Workers, ton v. Mine United 325 F.2d ville, Tenn., on brief. (6th 1963). 804 Cir. PHILLIPS, Judge, and Before Chief recognizing present While that the BROOKS, Circuit CELEBREZZE and factually distinguishable from case is Judges. differing cited that these proof cases2 and by employed plaintiff, the was BROOKS, Judge. Circuit South-East, attempting in to establish defendants-appel- conspiracy, appeals These are the existence of this lants, would, however, unduly opinion of America United Mine Workers (UMW Union) lengthened by and Consolidation Coal an elaborate discussion Therefore, Consolidation),1 (Consol plaintiff’s proof. Company case and specific jury imposing unique from a lia- in civil and facts involved verdict bility alleged 1 this on which bear on issues raised violation Sections case appeal conjunc- 2 of Act will be considered Anti-Trust Sherman (15 2). Plaintiff, appellants tion with those issues. Both 1 and South- U.S.C. §§ (South-East), conduct at have taken issue with certain East Coal con- allegedly prejudice, them trial which tended that to restrain UMW, jointly, and issues be con- will trade existed between Consol large Issues companies Bitu- solidated for consideration. other coal that, action, in the which 2. A notable difference is unlike 1. Ia this unlike situation above, present Ramsey is in the Work cases cited Mine existed v. United (6th America, made that ease contention Cir. no ers of 416 F.2d 655 manipu- conspiracy attempted allegedly 1969), company to affect or which a coal prices conspired bituminous late coal the T.V.A. to restrain trade with the Union coal market. was made a codefendant. explore jury by appellants appel which al- order to conclude that raised singular having sig- only leged lants violated Sherman Act. errors individually. Union, relying upon Penning dealt with nificance will be Lewis v. ton, (6th 1968)3 400 F.2d Cir. IN ALLEGED ERRORS I. Ramsey v. Mine of Amer Works INSTRUCTIONS ica, (6th 1969),4 416 F.2d con Cir. Required tends the District not ade Proof Court did A. The Standard Liability Impose quately accurately jury instruct impose liability on Union argue the Union Consol every violation, element essential charge erred its Court District damáges, except must be established necessary degree jury or standard on proof”.5 joins plaintiff proof must meet “clear in and which Consol Pennington (1969) finding ease lia- affirmed Lewis 3. The v. history. bility first This Court union for viola- involved an antitrust rather holding (The Kentucky District Court tion. pany West Coal Com- affirmed UMW, joined Pennington against as a v. defendant UMW 1963). alleged coconspirator The Su- it was an because F.2d 804 325 preme voluntаrily agreed ex- non-suited. the Union’s of the union Thus, Court only again did not we emption laws here had union sued.) regard- being reversed on This Court observed apply situation but in this Pennington, ing grounds. the District Court’s instructions UMW given of a 14 L.Ed.2d 626 the Union was benefit proof by 85 S.Ct. U.S. Penning- stringent (1965). Lewis v. more standard On retrial (1966), F.Supp. ton, the District in- the District fashion in which Court proof” and, “clear in favor the Union reason- structed therefore, Court found prejudiced plaintiff in- failed to demonstrate proof” any even if violation of anti- structions incorrect. “clear following respect- remark Lewis made the This Court in v. Pen- trust-laws. 1968) (6th ing nington, of 806 Section 6 the Norris-LaGuardia 400 F.2d Cir. (Before provide par- 6 does the District Court. Act: “Section affirmed Combs, per Edwards, ticipation, Judges Peek and ratification ‍​​‌​‌​‌‌​​​‌‌​​​​​‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​​‌​​‌‍authorization by proof. Edwards). by' was denied be clear J. Certiorari must shown Section Supreme 983, in 393 U.S. 89 does not the unlawful acts the Court 6 state that proof.” 450, (1968). by Judges 21 L.Ed.2d 444 be must shown clear S.Ct. among judges Peek and the Combs Ramsey 4. en In v. UMW this Court sat supra, Ramsey, the court in in divided appeal from the Dis- bane. This was an of which held that all elements action, ruling dismissing the Court trict except damages the antitrust violation plain- F.Supp. (1967), because 265 388 by proof. Judge must be shown Weick, clear not show an antitrust viola- tiffs could opinion in Tennessee author of by tion on the of the “clear Union joined Coal, judges in those Consolidated by ordinary proof”, although standard Ramsey only the felt that authoriza- who preponderance of of the evidence the Court tion, participation by or ratification liability might imposed suggested that be of need the unlawful acts be shown Union three-judge panel upon A the Union. by proof. clear Certiorari in Tennessee appeal April on of this Court heard by Consolidated Coal was denied preme the Su- 8, Rehearing granted en 1969. banc 999, 964, Court, 397 90 U.S. S.Ct. appears opinion 416 F.2d and that 655 (1970). 256 25 L.Ed.2d (6th Judge Phillips 1969), Cir. Chief gave Judges Edwards, 5. on Peck and af- The District Court instruction Combs for by evidence, opinion by Judge firming; proof preponderance Edwards. a of the Weick, O’Sullivan, However, Judges p. supple- in see its Celebrezze infra by reversing; Judge jury, opinion mental instructions McCree to by charge following granted gave on “clear O’Sullivan. Certiorari was Court, Supreme 1006, proof”: 397 90 U.S. jury, (1970). the Court 25 L.Ed.2d “Members of 419 S.Ct. already charged you hearing of the issue week the en banc One before Ramsey, panel composed alleged conspiracy Judges must in in this case a of proof, is, upon Weick, (opinion Peck Combs be decided plaintiff clear produce proof Judge Weick) must clear of in Tennessee Consolidated proof UMW, alleged conspiracy. means F.2d 1192 Clear v. get proof applied hold- in the bene- standard be that it too should maintains civilly stringent liable for a Sher- a labor union standard this more fit of proof” of all in dis- Act is “clear proof. is somewhat man violation This Circuit degree elements, question proper then is: essential agreement as to the company li- proof required labor union a which is fortuitous- a “Should ly to hold coconspirator joined In as a violating a labor Act. Sherman able get hearing Ramsey union an antitrust case bene- banc the en Workers, proof supra, fit of the standard the Court divided stricter af- Mine judges held There is Four forded union?” no basis evenly issue. either the Sherman Act impose liability on a union Norris- labor impose Act LaGuardia to indicate Section that to Act violation for a Sherman liability company, on a requires that Act6 namеd as a co- the Norris-LaGuardia conspirator of a union unlawful act ex- labor an anti- every element of violation, anything damages proof”. trust “clear more than a cept shown be preponderance judges section is neces- evidence construed Four sary. provide company get To hold that Act should the Norris-LaGuardia applied standard, the benefit of proof” this more standard strict “clear that the simply partici- because it named proving only that the Union with a labor coconspirator union as a in, the un- or ratified pated scheme authorized trade, grant restrain actual would be to of its officers with such a acts lawful company advantageous a more knowledge. They position after concluded that companies than other proof” re- would have, “clear shown this was might violate maining the antitrust viola- antitrust laws but are elements joined con- with a union. The law does tion—formation provide acts, arbitrary advantage. such an spiracy, causation the unlawful proof standard applicable damages, elements—re- all the to a company attempting quired by preponderance of proof only show it vio- laws, lated regardless the antitrust the evidence. joined whether it is coconspirator as a company major coal Because a union, with a labor preponderance a cocon defendant as been named a has spirator Bigelow of the evidence. v. RKO Radio this antitrust with the UMW Pictures, 150 F.2d presented case, unique problem 1945); grounds, reversed on other proof ques respect standard U.S. 66 S.Ct. L.Ed. problem That is what standard tion. proof (1946). plaintiff must met Having company stand for an concludedthat the hold a liable antitrust proof a conspired ard of hold if it with a labor needed to be met to violation company civilly for If it is that the correct an antitrust union. assumed liable proof stringent clear, unequivocal, convincing proof fit more of a burden of finding participated in, them liable. the defendants ac- tually alleged conspiracy authorized the having (29 106) it or ratified after actual knowl- 6 of the Section Act U.S.C. § give you edge provides: thereof. I want any a additional instruction as definition “No or member as- officer of my charge.” organization, I one terms used sociation or no asso- Thus, charge organization participating the District did or ciation or proof” participation, dispute, that “clear of be interested a labor shall responsible any or of of authorization ratification held liable in court by conspiracy the defendants acts was neces- United States for the unlawful sary members, agents, officers, of to hold them liable. While is con- individual it par- proof” except upon proof of actual cluded that the “clear clear standard of, ticipation applicable only holding in, or authorization is a rati- actual union acts, officials, acts ratification of such such or of fied or authorized the acts of its knowledge after District Court’s instruction even actual thereof.” gave erroneous both defendants the bene- 774 officers, preponderance of evi of its

violation essential elements of conspiracy legal necessary is encountered hurdle to resolve dence, another join case, liability when, company a ultimate need shown issue of be this only by preponderance coсonspirator a union. of the evidence. ed as a (See 4). jury charge Again, standard n. the correct the stand- assume that proof proof applicable union under ard of a labor more issue could have been proof.” clear, however, given parties is “clear circumstances partial Hypothetically, could exist benefit of a instruction a situation which single stringent company by only required and a more than a union where Sup proper conspired Court’s restrain trade. conclusion on what is the Thus, proof.7 parties pose hypothetical ease could standard in this prejudiced by by preponderance evi were the instruction be shown conspire if it even company was erroneous. did dence that however, laws, antitrust violate preponderance evidence while B. The Reasonableness of the Restraint conspired, could also showed union they were Consol claim UMW by proof.” There “clear shown by instruc of an prejudiced the absence and, fore, be exonerated the union would only un undue or tion Act of the fact that a Sherman force competi trade or restraints of reasonable wrong only is an actionable violation grounds finding a Sherman tion are con an unlawful committed under when find that a Usually, Act violation. more, company spiracy two or Act occur Sherman violation liability. escape States United would also competition red, the restraint of trade Socony-Vacuum Company, U. 310 Oil v. resulting committed acts from certain 811, 150, 1129 L.Ed. 60 S.Ct. 84 S. parties “unreason must be the accused (1940); of Cali Standard Oil generally, Oil Com Standard See able.” Moore, 251 F.2d 188 fornia v. States, Jersey pany v. New 975, denied, 1957), 78 S.Ct. 356 cert. U.S. 502, 1, S.Ct. L.Ed. 221 U.S. Thus, the com 2 L.Ed.2d 1148. Hosiery Cоmpany v. (1911); Apex pany by indirect method would have Leader, 469, 60 S.Ct. U.S. more strict the benefit of the received Penning (1940); v. Lewis L.Ed. proof. standard While the chances However, ton, supra. are several occurring perhaps are a situation as this per types which are of restraints trade remote, explains problem type g., States se unreasonable. See e. United parties to result when an ac U.S. Trenton Potteries v. wrong conspiracy tionable like have their (1927); 71 L.Ed. 700 47 S.Ct. gauged by respective ultimate liabilities Socony-Vacuum Oil United States v. proof. different standards Company, Inc., supra; United States Corporation, 291 Consolidated Laundries question This leads 1961). re (2nd Cir. Other F.2d 563 all al whether essential elements face, straints, on their while reasonable leged against labor ac become unreasonable when proof.” union must be shown “clear companied specific ac a intent to The en banc in decision this Court complish a forbidden restraint. United Ramsey controversy. did not resolve this Company, 334 States v. Columbia Steel repetitive Without a discussion 68 S.Ct. L.Ed. U.S. panel’s rationale behind this conclusion (1948). issue, already extensively explored on this Judge opinion Ramsey, in O’Sullivan’s v. In United Mine Workers America alleged is proof” Pennington, supra, it concluded that while “clear an conspiracy necessary par purpose is to show.that the Union existed which had as of its ticipated, authorized, objective plaintiff, or ratified acts the identical that the 5, supra.

7. n. See marginal wages produc- object of at a level that the South-East, contends was (cid:127) is, they pay conspiracy. so be That ers could not would particular this industry.” conspiracy U.S. driven from the into a the “union entered agreed- impose large at operators to 85 S.Ct. wages royalty upon the scales upon and be The conclusion which can regardless smaller, operators, non-union language from this is that drawn when regardless ability pay of their employer an into labor union and enter represented not the union or whether plan type re scheme companies, employees all of these losing exemption union sults its eliminating them from purpose of law, liability from under the antitrust pre- limiting industry, production and plan by an or scheme is definition large union- empting market for the. unreasonable under anti restraint type of operators.” Respecting this ized interpretation trust laws. see the [But Supreme conspiracy Court observed given language Judge by Peck 665, 666, 1591: 85 S.Ct. at 381 U.S. Pennington, Lewis 813- v. 400 F.2d wage agree- may union make “[A] Judge (1968) and District Wilson bargain- multi-employer ments awith Ramsey Workers, United Mine may pursuance of its unit and F.Supp. 388, (1967)]. Thus, it interests seek obtain own union could be that in shown this case the Union employers. No same terms from other entered into a with certain be case under the antitrust laws could large agreed operators impose up coal such made out on evidence limited to wages royalties upon smaller, on non (Footnote omitted). union behavior regardless producers, union coal of their ex- But we think a union forfeits its ability regardless pay of whether emption laws when represented employ Union agreed clearly it is shown that companies, ees these smaller all for impose employers with one set of purpose eliminating the avowed them wage bargain- certain ing scale business, limiting production from the group employers units. One larg pre-empting the market for the conspire competi- to eliminate er, producers, unionized coal con industry tors from union spiracy per would be a se unreasonable employers is be- liable with if it competition. restraint of trade While party conspiracy.” comes a give in District Court did not only struction that or unreasona undue Supreme The made follow- then competition ble restraints of trade or can ing analogy: grounds be for a to conclude that contend, ex- hardly could “One violation, light there was an antitrust group employers ample, one of the conclusion that if the con lawfully union demand could spiracy proved, would this case was wages that employers impose on other unreasonable, specific no definition higher those significantly than were paid instruction on the reasonableness of employers, aor requesting necessary. restraint was that, wages computing be- system of pro- in methods of differences cause Ex- on a Labor Union’s C. Instructions costly set one duction, be more would emption Laws from the Antitrust employers than to another. of anticompetitive argue Workers potential Mine such prejudiced obvious, the District little is but combination give proffered in alleged to failure to its Court’s than more what severe exemption labor purpose struction on a union’s and effect have been the The District to from antitrust laws.8 conspiracy case establish Clayton Act, preferred following in- 6 of the “3. In Section 8. The Union Antitrust which amended Sherman struction : following gave re- employers; instructions same terms from other but specting exemption union and a union activities a labor forfeits its from relationship clearly to laws: their anti-trust laws when it is agreement shown that has an “Now, does not make it un- the law employers wage impose one set of a to combine for the lawful for them bargaining on scale unit.”9 making purpose a for the union rights group protecting employers may purpose their “One agent, you bargaining conspire competitors having a so to eliminate industry, the union from the not to consider because union is are miners, great many employers composed liable with the if it of a becomes is party conspiracy. this Eastern Ken- a miners in all of the it, tucky that of are members who though “This is true the un- even courts unlawful. is not itself part ion’s taking in the scheme is an under- expressly so. said have wages, to secure the same hours, employ- expressly so or other conditions of said “The law remaining employees Act ment for the known as LaGuardia what is Congress. employer industry. passed That in the that was is not unlawful.” legitimate any “It a aim is na- organization tional labor un- obtain standards, iformity of labor and it national law and “Then under may consequence be a of such union policy, the labor national under the activity competition to eliminate based laws, produced what under have as we on difference in such standards. Act, La- and the as the Labor is known however, “This, does not mean other Acts Act and these Guardia Congress, they employers in one and the union to bar- were allowed bargain bargaining unit free to collectively. They hire one gain didn’t working hours, wages, con- about for so another for so much and man much, bargaining or to of other units ditions work- and other the miners but attempt for the these matters to settle allowed industries were ers industry. entire collectively bargain a to select bar- agent.” gaining bargain duty “The union has its serve unit order best

unit obligatiоns to its members. wage agree- may “A union make abili- retain the bargain- should Union multi-employer “The ments with bargaining situ- ty respond to may, each pursuance its ing unit and circumstances the individual interest, ation as obtain union’s seek own objective price on Act, Congress of such and the effect the labor declared ‘that commodity competition of the anti being is not violative is not of a human Hosiery Apex Lead (labor) Co. v. or- trust laws. nor shall article of commerce er, ganizations [60 S.Ct. thereof 310 U.S. members or the Pennington, ; illegal UMWA 1311] com- 84 L.Ed. to be or construed held conspiracies S.Ct. [85 restraint 381 Ü.S. binations under, 626].” laws.’ L.Ed.2d the antitrust trade agreement entering wage into a per Pennington employers, successful union statement which is a 9. The correct bargain- wage activity, on other some influence scale “a certain eliminating Apparently, competition mis- price was a units.” Judge competition spoken phrase, based District as the such charge How- than more in labor standards. the remainder of the on differences conveys adequately must dis- ever, to be effective the idea that union a labor goods (or competition employer is when an allowed conduct eliminate bargaining unit) multi-employer produced con- com- labor under sub-standard price impose com- certain bines with a labor union to The elimination ditions. petition differences in labor on other based on labor standards or conditions objective bargaining employers. union is a lawful units standards

777 being straight- ques- indicates that the in might instructions without warrant agreement appeal prior tion on this were both with correct jacketed some employers.” fair. favored instructions, portions of which These Equal Hypоthesis D. Rule Pennington, 381 taken from UMW v. are 1585, Appellants 657, 626 L.Ed.2d contend it was error for 14 S.Ct. 185 U.S. jury (1965), adequately explained the District Court not to jury instruct give proven equal union types labor that “where facts of conduct a what support to engage of vio- each of two in fear antitrust inconsistent in without ; event, in which of repercussion. The instructions ferences neither lation established, being judgment, jury circum- them a under what as also advised activity against law, go par union lawful matter must stances otherwise necessity ty upon in an antitrust violation. whom rests the sus would result Bradley Company taining generally, v. one of as Allen inferences See against 3, other, Broth- he is International before Local Union entitled No. Workers, Pennsylvania U.S. 325 Railroad of Electrical recover.” Com

erhood (1945); Chamberlain, 333, 339, 1533, pany 797, 1939 v. 65 89 L.Ed. 288 U.S. S.Ct. Hutcheson, 391, 393, (1933). 312 U.S. 53 77 819 United States v. S.Ct. L.Ed. ‍​​‌​‌​‌‌​​​‌‌​​​​​‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​​‌​​‌‍(1941); argued 463, It a 61 85 L.Ed. 788 that such an instruction is S.Ct. Workers, swpra,. necessary component applica Ramsey of the law United Mine v. expression complains that the ble The Union “exemption” to circumstantial evidence given only properly Ramsey in once in United used v. Mine Workers, interesting (1967), F.Supp. at It is observe instruction. proffered in instruc- and Tennessee even UMW’s Consolidated Com (unre 8) subject (see expres- pany Mine v. United Workers tion n. ported “exemption” opinion) and re While District Court sion used. right legal spectively party his affirmed a has the Workers, Ramsey v. Mine F. claims defenses stated United long 1969), instructions, (6th way as Dis- 2d and Tennes so Cir. Judge accurately these claims states see Consolidated Coal v. trict Workers, defenses, grounds for can no 416 F.2d 1202-1203 Mine (6th 1969). objection simply exact because the Cir. requesting wording phrasing appears “equal It party not used. negative hypothesis simply rule” a way phrasing the Union contends that the rule law that instruc- plaintiff his as those must in this case were fatal sustain burden tions given Hats, Thus, proof. plaintiff v. not come Inc. United does Cedar Crest evidence, Hatters, Millinery Cap In- forth when considered Workers evidence, Union, (5th light opposing which ternational 362 F.2d 1966). infer the truth suit labor could Cir. That involved against charges proposition contra-proposition, of antitrust over its union whom practices plaintiff has not met his and unfair labor burden violations object- equal appeal proof. inferences When there are On the union were made. particular set did can from a ed to instructions which be drawn the court’s indicating conduct of inference liabili mention that facts—one not even certain non-liability ty, is the engaged fall a labor union does —it violating obligation judge's at verdict scope the direct within the activities stage comparison trial to find for the defend A laws. (ap- Pennsylvania Railroad case ant. Com trial instruction See court’s Chamberlain, supra; 322, 325-326) pany pearing Gulf Re v. 362 F.2d case, given fining Company & instant Mark C. Walker instructions the supra, respecting conduct 124 F.2d a labor union’s Son clearly 1942). proper regard It not be un- would to the antitrust laws by proving proof the burden of trial tain its circumstances der claim, by every jury the judge relinquish re- essential of this element to giving preponderance by simply an of the evidence. them sponsibility they if to the effect instruction proof, it its under “Should fail in of an inference draw either not could you de- rule find the this should nonliability from the liability of or one fendant. they conclude presented, should facts preponderance of the “To establish nonliability.10 prove that some- the evidence means to so; District In this case the thing likely not more so than is meaning jury the the words, instructed ‘preponderance of the other the having plaintiff the burden evidence, to sustain when evidence’ means such evidence. proof preponderance of the op- compared with that considered convincing it, stated: He posed force to more has produces your minds belief that recover, “Now, in order to sought proved is more what to be Company sus- must South-East likely to not true.” be true than proof; in other burden tain the offered, words, proof was no explained what These instructions judgment plaintiff. no for the be would prove to what de- had to South-East proof responsibility is his to offer It gree jury must be convinced claims. that he establish facts to It was of South-East’s assertions. truth re- to right, error District Court not as has the “And defendant give the, hypothesis” “equal in- proof to you here, fuse seen to offer have requested by appellants. explain struction those facts or to contradict conduct, justify its those facts or Respecting the Use by E. Instructions brought out been Jury Certain Made be support plaintiff for the witnesses Hearsay Statements allegations. of its responsibility of the “But it is the error raises as Consolidation plaintiff burden give to sustain this Court’s a conclud District refusal Now, by proof,’ it proof. ‘burden of jury regarding instruction necessarily greater mean the permissive doesn’t use of certain statements against competent Sometimes number witnesses. as which were evidence proof can be hearsay applied in lawsuits burden as the Union but were contrary rejected sustained one witness as Consolidation. instruction side, you so fifteen on the other stated in that: not to confuse idea of ‘burden are “During per- has the trial the Court proof’ of witnesses with numbers of evidence mitted introduction depositions ar- or numbers of or other concerning the actions and statements might ticles of be offer- evidence that specific of each the defendants ed. however, admonition to the jury, you, “But it must before convince the members of the must con- plaintiff may recover, against must sus- this sider evidence Ramsey upon by appel- non-jury Ramsey. 10. The case relied trial It is doubtful non-jury appeal equal given lants was an by case. On inference instruction observation —-not instruction —made Tennessee Consolidated to the Judge opinion However, apparently the District in his correct. quoted approval. “equal assigned appeal Since as error on as no rule or inference” doctrine is used in- mention whatsoever is made of judge deciding question propriety trial use struction its appellate opinion whether a directed verdict should in the case. See granted plaintiff defendant because Tennessee Consolidated Coal proof, Workers, his not satisfied burden of Mine 416 F.2d 1192 logical 1969). both rule correct thinking judge’s in the entered trial ** conspirators guilty. *. Inasmuch defendants problem presented liability part of to us is whether on the be no there can conspiracy preliminary (upon question is the resolu- a unless the defendants * ** you only independent disre- tion of (proven) must evi- you available) gard is evidence unless dence is to be resolved of such all by by jury judge. Appel- by and disassociated the or the first other find * * * [which, except, lants’ view case sufficient of the law evidence in the by conspiracy proof proof is claimed the standard of identical you by plaintiff In such event to that * * * existed. asserted Consolidation] subject ques- may preliminary then consider the evidence is that the by jury upon in concert with all tion is to to the admonition be resolved beyond proof evidence the case.” a reasonable doubt. by requested independent “Yet if A instruction similar to this evidence the given position co-conspirator was not Schmeller v. United defendant’s as a (6th States, 1944), upon by jury is F.2d 550 to be Cir. established judgment beyond and it held reversible error. This their a was reasonable strongest doubt, support case lends the for Con- there is no ever to occasion re- However, position. sort to the solidation’s since the declaration at all. The dis- logic decided, trict court Schmeller ease was in effect will have told the charge jury jury, may in- ‘You and correctness of not consider this a evi- hearsay you structs dence that certain statements unless find de- first ” by guilty.’ explana- as to defendant cannot be fendant one used [Bracketed jury determining tion is this whether a con- Court’s]. spiracy until exists between defendants many While Carbo and of the cases jury has first concluded that the de- problem which have dealt this are guilty of an con- fendants are unlawful nature, requiring criminal therefore spiracy, seriously apparently been jury to conclude the existence of a challenged. addition, appellants’ In reli- conspiracy beyond doubt, a reasonable appro- entirely ance on is not Schmeller paradox instructing jury a priate part of the reason the as Court certain used statements can be estab- give in- found in the refusal error they conspiracy only lish a after there were both struction sub- already conspiracy found to exist is charges charge conspiracy stantive and a illogical cases, although just as in civil we In the instant case are deal- involved. required. proof a lesser standard of charge. only a In Thus, preliminary it is that the concluded States, 314 F.2d Carbo v. United question admissibility of evidence 1963), al- an instruction challenged technical eviden- under offered most identical to that Con- (this clearly question tiary rule a held solidation in this case was to have sufficiency admissibility and not of or rejected properly correct been weight evidence, Wong Sun v. statement of the The Court Car- law. States, 83 S.Ct. 371 U.S. bo observed: (1962)) L.Ed.2d is a matter judge and, confusing to decide “The situation is rendered therefore, properly admissibility the instruction the fact rejected by We the District Court. deal (concededly relevant but evidence legal only propriety, as a challenged here with the technical under a evidenti- matter, upon Court’s refusal depends District ary competence) rule of give proposed instruc- Consolidation’s disputed question preliminary of fact tion, question of whether with the ultimate which coincides admitting (Footnote erred in state- question upon the merits. prima facie case no ments because

omitted). admis- declarations are later, in- they will be considered against established defendants sible fra, p. co-conspirators. co- see If are commitment, Respecting pro- Instructions the Protec- tura for this the coal F. signatories Agree- Wage ducing and “80-Cent tive Clause the National Agreement (BCOA agreed members) National ment all Clause” in the “that mined, produced, pre- bituminous coal Alleged in the District errors Court’s pared by them, any them, pro- regarding the Protective instruction any acquired cured or them or Wage (PWC) and the “80-сent Clause arrangement them under a subcontract legal problem presents clause” pro- shall or shall have mined or be been helped resolution of which duced under terms and conditions which and the discussion of the clauses brief employees to the as as those favorable they played in the national role various provided for in this contract.” agreements appeared. labor which Wage Bituminous Coal The clause” 1964 amended The National “80-cent provi- Agreement Bi- Fund into between the the and Retirement entered Welfare Agreement. Operators sions Association of the 1950 National tuminous Coal Wage dropped (BCOA) Mine The and Workers Protective Clause was the United Agreement year. thereby in 1958 incor- from the in that Until was amended signa- Wage porating this went the Clause. amendment into effect Protective by Agreement arrangement provided to the clause tories to the National had The forty pay Mine cents the United Workers into the Welfare Fund was agent pur- per they produced. agreed, bargaining for the em- The as ton of coal obligate (members ployees by pose to covered the contract of the amendment was UMW), signatories procured acquired bi- contract the while the or who into, or was in effect it not enter for sale use which was would tuminous coal or covering any agreement party agreement requir- produced be a an under wages working ing forty per into paying or conditions which ton cents the provi- (non-UMW equal produced not on an basis with those Fund the Welfare re- coal) eighty contract. In pay sions contained in this Wel- cents into the Workers, subsidiary Ramsey by any tory Mine v. United af- 11. See or hereto Opеrator signatory Tennessee Consolidated 416 F.2d hereto 655 and filiate of such Workers, (80 cents) per Mine v. United ton of two the sum (2,000) pounds the a discussion 416 F.2d 1192 for ton of on each thousand complete procured clause. text the PWC the or ac- bituminous coal so such quired sum on which aforesaid cents) per forty (40 of the National The “80-cent clause” had ton cents provided: Agreement prior paid to such into said Fund been acquisition. parties procurement “UNITED MINE WORKERS OF The any mutually agree that, AND RE- if at agreement AMERICA WELFARE hereto during TIREMENT OF 1950 term FUND of this time Amended) competent juris- (As tribunal of court or by printed paragraph “Amend final decision the first determines diction by provision appearing striking subsection in the sentence A of this clause pay- just preceding, providing beginning out all of for the second sentence eighty ‘During’ ending by signatory Operators word after ment inserting cents) per (80 word certain in lieu ton under ‘sale’ cents conditions, following: ‘During prescribed thereof the is invalid or the life of agreement paid this Rela- there shall be into Labor violation National by operator signatory amended, Act, such federal Fund each or other tions (40 forty cents) shall, law, parties hereto the per sum of cents or state party (2,000) pounds upon by option ton of two thousand demand of and produced affecting part, on each ton coal of bituminous second without Operator any provision integrity such use or for sale. of this for other procured any provision On all bituminous coal or ac- other of Agree- section or Operator Wage quired any signatory Bituminous Coal National sale, (i. e., engage good ment, faith use or for all bituminous meet produced by agree upon negotiations coal such a clause than during signatory Operator) shall, agreement in re- into be inserted placement provisions paid agreement, in- life of found into ” Operator signa- such Fund each such unlawful.’ valid or pro- meaning of While it so contract. of coal ton each Fund fare certainty cannot purpose of be said with absolute the stated While cured. upon theory which basis the chose stand- protect work amendment impose liability in the Tennessee Coal between costs by equalizing labor ards case, non-signa- felt that seems that signatories employees of illegal PWC was crux of Union's discour- tories, effect the obvious act- conduct.13 purchasing or signatories age companies agents coal as sale legality of the “80-cent clause” la- non-UMW produced coal not been of the antitrust laws terms borers. appellate court. When considered Wage legality of the Protective incorporated in- the “80-cent clause” was Clause, laws, in terms of the charges Agreement, to the National Ramsey and Ten- was considered in the 8(e) of the National violated Section Ravn- nessee Consolidated Coal In cases. Labor raised. Relations Act were See sey, responding allegation Board, Lewis National Labor Relations per PWC se of the Sher- violation U.S.App.D.C. 350 F.2d 801 (all judges Act, man concurred Union, (1965); International portion opinion) in this observed the Mine National Labor Rela- Workers v. oppo- capable the that clause two U.S.App.D.C. Board, tions 130 399 However, proper site constructions. the (1968). F.2d A final determination 977 interpretation given to be the clause was question not made. this has been a the one does not result in viola- “that Ramsey Appellants In tion of at the law.” that the instruc- maintain jury’s Coal Tennessee respect Consolidated tion these failed with to clauses general imposing liability “adequately accurately” explain on verdict or significance required provisions Union concluded that the PWC and the these non-signa- bargain legal proper interpretation the Union not with that should tory operators upon given they except Specifically, the terms be them. contend Agreement, of the National instructions conditions that the District Court’s 1969). they in as F.2d were in contradiction far so jury response spe- jury in also that the contracts or found instructed the interrogatories “prior agreements containing cial that national apart Agreement they, legal, as from” National were but that clauses jury, amended in not con- 1958 the UMW that an antitrust did could conclude vio- spire signatory operators they with coal lation found that occurred if impose Agree- agreements the terms of the into with the National were entered non-signatories. driving pro- ment coal It should be intention certain argued except noted It that minor al- ducers out of business. is several Agree- paradoxical terations the 1950 National either is amendment, agreements illegal. by legal ment made South- Wage addition of the Protective Clause East the instructions were contends by major adequate the amendment constituted the accurate than because and more change Agreement. they legality On of the clauses in the National admitted Coal, agreements, in Tennessee appeal but based the national PWC, contract, on the their claim of violation stated theory ambiguous an “inten- existence of all circumstances developed predatory conspiracy” surrounding prac- tional the contract and the in Pen- by opinion parties given Mr. tical construction Justice White’s nington. determining positions jury a of these is could be Neither used findings in Tennessee on the 13. The Tennessee Coal case was decided However, Ramsey Tennessee denied in Coal. Certiorari was week after the case. Ramsey. Ramsey granted it is what effect but not clear interpretation wholly correct of the law suffice it to said these conclu- Pennington. applicable sions as stated are provi- also to that sion. Ramsey Supreme In Court’s deci- Pennington gave following

sion in particular was examined District Court given regard type instruction Agreement,

attention what to the National agreement illegal combination or between of an nature con- might spiracy employer pro- and a labor union and what South-East was re- quired grounds concluding duce that an anti- show before the could im- pose liability trust violation occurred. It was on the defendants: Ramsey that it that “the lan- was decided “In conspiracy order to establish guage agreement (PWC) did arrangement unlawful as claimed per illegal conspiracy.” se constitute an plaintiff in this case it is not Pennington addition, In was construed necessary plaintiff that the of- should to have held that “a between proof arrangement fer aof direct employers in- and labor formed with the executed written contract that driving competitors tention of out of entering conspiracy. into business is a violation of the Sherman necessary agree- “It that the “ (as ‘predatory Act” and that intent’ ment, any, was the result of formal White, used Mr. Justice U.S. action on the of the defendants. * * merely *) S.Ct. question The real to be determined is employed to this anti- shorthand describe meeting whether or not there awas competitive conspiracy.” minds or common understand- purpose requirement Reviewing Ramsey deci agreement the execution of interpretation Pennington, the labor sion’s four doing injury with the intention of may applicable to conclusions be drawn plaintiff. First, the present dispute. the the National Agreement containing the Protective Wage face, is, thing you on labor ‍​​‌​‌​‌‌​​​‌‌​​​​​‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​​‌​​‌‍Clause its valid “The which will have to implement the probably contract seeks to goals decide and I which which will refer uniformity perfectly legal again, nothing of of there is unlawful Second,

wages working itself; conditions. about and that contract but if agreement if or entered was made was entered into with the intention pursuance signatories part of own on into the union in its the two —the interests, grounds injure no plain- self there are defendants here—to the tiff, concluding they mind, of the antitrust if violation had that in ‘we that employers Third, if, however, going go laws. into this contract be- put and union into this contract cause entered we know it will South-East knowledge business; they or intent with the conscious out of conditions; can't meet competi big, strong, that it used to would be drive we are too too (more they of in compete us, tors out business than the and cannot can- get adoption cidental caused them, effects miners to work for and wage agreement they of a uniform which cannot on sell their coal the mar- operators being they result in certain ket able because do not have suffi- profitably), agency, to function then a cient violation sales so we will delib- erately they the antitrust laws ocсurred. enter into this can’t and Fourth, it; expressly thereby profit or im it is this either meet we will pliedly agreed-upon putting competitors use con valid out of business tract, is, seriously hampering operation.’ will be used his competitors business, “So, drive out of Did the issue is: these two comprises agreement signatories thing putting have that illegal purposes which is Company anti South-East Coal out deciding ques trust they signed laws. Without mind, the time business legality tion of the of the “80-cent clause” the contract?

7gg Delicto, G. of In The Defense sumption Pari As- you. Conspiracy, if be- "You of Risk are instructed industry-wide Rights Arising an collec- Waiver lieve from the agreement, whereby Conspiracy bargaining Estoppel tive agreed employers on the union and the Appellant Consolidation Coal wage the financial that exceeds scale claims error in the District Court’s operators, ability, includ- small some struction on its various Par defenses. and, plaintiff, pay, that the assigned emphasis ticular to the agreement purpose for the was made error in the District Court’s instruction including forcing employers, some pari on the defense inof delicto. With business, injur- plaintiff, the ing out of defense, reference to this the District business, you its believe charged that: defendants, Consolidation Coal that, “Now, say Mine Work- the United here defendants par- ers, deliberately admitting things into and entered all of these for the arrangement, ticipated argument, it, put in such an sake as we what- arrange- came, damage plaintiff, of such the result ever to the damage, if ment the sole cause of it. that he was you any, plaintiff, will then against anything can’t “He claim plaintiff. find for the operators ar- the coal because this believe, you you “If will do not so rangement had with the find for the defendants.” approval and endorse- had UMW his necessary ment, for the that he a member of It was not Operators go into more detail BCOA—Bituminous District Court up significance Association—that drew PWC or about .con- sponsor charge proper tract, itof and that he was a clause.” “80-cent ly it, relationship and, got therefore, hurt if he instructed helping Agreement wrong, in a it was he was National between the ‘impari (sic) they wrong, call be shown delicto’ and what must laws guilt. impose liability.15 equal regard it. That is in this circum- closing arguments “The During Counsel: South-East’s counsel making objected of these the time made stances statements UMW to certain got contracts, they to to be used Na- about the counsel for South-East prove Agreement. claim.” an antitrust The District Court tional Appellants’ gave “I to submit to Counsel: instructions at that time further colloquy jury that words were that the same the Court about PWC. The objectionable being at the bench as used was as follows: to the same used this counsel I coun- were “As understand Court: jury (cid:127)effect, argument, drawing would have that this deduc- sel’s he is a type consequences of this consider does tion from these circumstances. He instructed, bargaining, eliminating from the argue, of is people industry impression, given and caus- whole certain if it been that good proper. a deal of harm.” that is not wrong per se, nothing “The is instructed The Court: is that “There itself, is, the execution of contract itself of execution this that with the of per se violation of law.” is not I that contract. should instruct them on “Okay.” Appellants’ general Counsel: as a instruction. you words, “In other are not to con- Appellants simply in the in- error was also claim sider that agreement because there made becausе of remarks between BCOA and struction Judge which were incorrect state- UMW that itself established District that involving passage of certain dates violation of the antitrust laws. ments got impression In PWC “80-eent clause.” “I he that supplemental using figures instructions the Dis- establish his claim those Judge proved no on corrected himself and basis trict that the results prejudice resulted the error. which he relied.” person guilt given equal “A who is of can- at all. Recent cases have tended wronged public that claim he has been indicate that for reasons policy people pari other who assisted or col- of in defense delicto is project. with him on the same not available to a laborated defendant in certain types of antitrust cases. See Perma “The defendants have entered the Mufflers, Life Inc. v. International Parts pari of ‘in means defense delicto’ —this Corp., 392 U.S. 88 S.Ct. 20 L. say that if an un- that the defendants (1968); Ed.2d 982 Gaines v. Carrollton existed, plaintiff conspiracy lawful Trade, Inc., Tobacco Board of 386 F.2d equally responsible defendants (6th 1967); Cir. Sahm v. V-1 Oil conspiracy. the formation said . 1968). 402 F.2d 69 defense, “Under this the Court However, since it has been concluded charges plaintiff you that if the given that the instructions de conspiracy co-initiator correct, necessary fense were it is not therefor, plaintiff equally responsible question reach the type of whether damages for not entitled recover conspiracy antitrust involved in this period plaintiff time that category ease falls into the those party conspiracy. to the remained a conspiracies in which the de “Now, person may party be a pari of in fense delicto is available. arrangement, pari such an ‘in de- be request Consolidation’s in licto,’ but he can withdraw from that. structions on assumption its defenses of You not once with tar brushed risk of conspiracy, you get waiver can’t rid of. rights arising conspiracy from the though you “So, even believe estoppel properly rejected by this, that he did do that he was District Court. While defenses arrangement, entered into this con- might proper be negligence in certain purpose putting tract cases, and contract no evidence operators business, yet, you out of if Congress intended that these de believe that he withdrew he from and up by analogy fenses could be set aas de got you out itof find fense in an Furthermore, antitrust case. responsible defendants were more than. even if available, these defenses were plaintiff the formation appears would subsumed in conspiracy, plaintiff may recover, even pari the more inclusive defense of in though party it was a to the con- delicto. spiracy, though even South-East Coal party conspiracy. was a Dealing H. Instructions with the Issue though you may “Even find that Judgment of Bad Business plaintiff party was a Consolidation also claims you plaintiff and if find that withdrew Judge negated the pri District one of its conspiracy sought from the and to mary contentions with certain remarks conspiracy, avoid the effects of the made in the primary instructions. The damages arising recover in the allegedly negated by contention the Dis period subsequent of the case to such Judge’s trict statements was that much withdrawal.” injury of sought the recovery South-East charge adequately This more than in- did result from the antitrust respect structed the with to the de- conspiracy by but rather caused a was pari delicto, fense of in and the effect judgment “serious mistake in in build participation South-East’s in the con- ing cleaning plant costing a million $5 spiracy would on of amount point and at a some one twen hundred ” * * * damages ty-five recoverable if termination of miles from the mine its in the did not occur. by Judge The remarks made the District only difficulty The general the instruction only very concerned in a fashion perhaps is that importance cleaning should not have been apparatus of Appellants’ “Cassidy..” processing coal and Counsel: bituminous There expensiveness a device. of such The Court: “The last witness who testimony copious at trial on both was Well, anyway, one testified. of the whether build- of sides the issue of witnesses the defendant that he cleaning by plant South-East of the building concerned about was of not a mistake business was cleaning plant, tipple and this this alleged prejudicial judgment. state- through plaintiff, and advised the its made at matter were ments on this LaViers, president, possibly and Mr. charge during very beginning of the others, importation that from Canada general the bituminous coal of discussion gas places and other the use of and meaning industry of certain when going oil reduce the and to coal jargonistic phrases used words and thirty-three per demands and a third industry coal and at the trial were locality, cent or more. Notwith- explained jury. end Towards the to the standing proceeded that, plaintiff Judge charged instructions, development expansion, to its appellant’s bad business on way in no that these defendants judgment theory the cause of of South- responsible But, due to for it. these injuries. East’s He stated: alone, any loss, if he had circumstances by it was caused that.” position take the “The defendants negation ap- (conspiracy If there of one did cause was a that * * * by (but pellant’s passing plaintiff’s injuries) remarks theories Judge begin- by injuries were) made District at the result of either ning charge jury, mismanagement, expansion, it obvious- over eco- ly by conditions, compensated more nomic than combination these, explanation appellant’s position just possibly other circumstanc- es, quoted. appellants It concluded that to none of either of de- which prejudiced by complain- any part. were not certain fendants had ed of made the District statements theory of the defend- “That Judge jury. his instructions building here, ants that clean- ing plant Irvine, there was a IN EVI- ERRORS II. ALLEGED significant miscalculation its cost DENTIARY MATTERS construction, more than million dol- cost; anticipated lars it it was and Conse- A. Evidence Effects in haul from the miles mines Alleged quences Antitrust plant, which was an ex- additional Conspiracy pense good contrary pro- coal challenge appellants management, duction loss ruling through certain evi District Court’s the sale of fault coal no dence con offered South-East Consolidation but through in the coal plaintiff cerned economic conditions failure industry Kentucky. acumen; The evi Eastern exercise orthodox business principally and re dence was statistical plaintiff is what caused this things money, through the reduction lated such as: lose and that its employed in the own in the number of miners failures no reason to accuse population industry, either coal diminution these defendants to have areas, wage wrongful producing acts; in certain coal committed the finan- industry, problems plaintiff cial coal scales the bituminous of the arose production quantitive in coal from and fluctuations its own actiоns its own fail- years, of good ure income and losses judg- in various exercise business producing ment in coal com the face of advice certain bituminous on the type panies. objection to this raised Consolidation Coal ac- inordinately cording Tucker, believe, it em I was that Mr. who evidence consequenc- phasized alleged was the and witness —is that his “effects name? thereby employed conspiracy, number of individuals coal as antitrust es” of the miners, cetera, et misleading are insufficient to believe prove conspiracy. conspir- anti-competitive an antitrust of an existence agreement inferred from acy could be definitely appel- It cannot be said argued that this is It these conditions. interpretation language lants’ of the Pennington, in Lewis v. decisions Court’s Pennington right wrong. is either 1968), (6th Ram- and Cir. F.2d While this finds it difficult to con- Court America, sey United Mine Workers v. language particular strue that in Pen- 1969), and the Su- F.2d nington have, appellants support some Mine preme decision in United Court’s appellants’ interpretation lan- of that Pennington, 381 America v. Workers guage can be found in Mr. Justice Gold- 1585, 14 L.Ed.2d 657, 85 S.Ct. U.S. berg's dissenting Pennington opinion in theory rejected (1965), specifically appearing in Local Union No. Amal- prov- conspiracy can be an antitrust gamated Meat Cutters & Butcher Work- consequences. The ar- and en effects men of North America v. Tea Jewel Com- clear, appears gument but is not pany, Inc., 714-715, at 381 U.S. 676 admissibility objection not made is (1965). S.Ct. 14 L.Ed.2d 640 Even evidence, type rather of this though language Pennington is cannot, standing type alone of evidence decisive, logical there is a basis for law, serve as the basis as a matter appellants’ position. The “effects and concluding conspiracy thаt an antitrust consequences” theory basically is a causal exists. argument. is, (the a That cause anti- conspiracy) produced trust has certain In of America v. United Mine Workers (reduction results effects Pennington Supreme in the num- stated mines, people employed ber of union, having concluded that a labor by marginal producers, employ- financial losses wage agreement one set of cetera). argument type has ers, impose et This unilaterally seek to difficulty one chief employers flaw: The isolat- even same on other terms ing causally single responsible factor though em- that “[s]ome is believed they effectively compete identifiable effects. Often there ployers if are cannot intervening superseding wage required pay de- causes scale are destroy validity shown Mine the union.” United manded argument. Pennington, The “effects and conse- of America Workers v. quences” theory appellants question ap- also It was n. 85 S.Ct. at pears logical simply usually is reverse the union conduct observed that “[s]uch progression first to effect to maintain not alone sufficient evidence cause charge pointing conspiracy un- conditions and then union-employer certain concluding ad- must be caused these conditions. der Act. There the Sherman what event, isolating any problem of the In ditional direct or indirect evidence particular definitely pro- conspiracy.” Mine Workers cause which Pennington, present. The textual duced Id. certain effects still America v. language conspir- material, foot- cannot that an antitrust law alleged above, appears acy proven by quoted in Lewis v. can be effects note Ramsey cоnspiracy Pennington consequences United Mine alone. If argu- plaintiff pro- Appellants’ only could evidence a Workers of America. language alleged upon apparently duce of relies ment showing Supreme quoted Court’s statistics above from losing industry Pennington They producers mon- construe in an are decision. money; ey producers language evidence make to mean that while some industry is consequences production of an in the effects and that overall showing companies g., conspiracy, profits mar- certain e. statistics down while go- losing money employment ginal up; producers are and that industry, business, defend- dropped out of off reduction 1957), (9th denied for F.2d 188 Cir. cert. directed have a verdict ants should plaintiff’s S.Ct. 2 L.Ed.2d case. U.S. close of them at the argu Therefore, appellants’ while out made would even Plaintiff might goes, recovery. ment correct as it be far as prima ease for facie apply it does not of this case. facts Regardless these state- of how accurate might be, apply they do not under ments and Al- B. Evidence Statements which Reviewing the of this case. facts legedly Personalized South-East contrary record, it obvious becomes Prejudicing Thereby Appel- Claims appellants’ contention South-East’s to lant alleged solely on ef- does not rest case they prove maintains consequences Consolidation ex- fects and prejudiced because certain conspiracy. evidence the antitrust istence admitted statements at made presented evidence of state- South-East personalize trial tended to South-East’s and Consolidation ments made UMW claim, gave is, impression tending that there ex- оfficials show family agreement was the claim of LaViers' implied expressed or isted an operates company. Consolidation; which controls and the Union and between It is contended that this past left courses there was evidence with the idea that this ver dealing was David performance between itself type controversy, sus Goliath interrupt- with which were Consolidation family representing changed LaViers the small ed of Union activ- as a result battling Company concerning ity ; South-East Coal was evidence what there giant bargaining combined forces Consolidation happened sessions between Company Coal United Mine and the which indicat- South-East Union Thus, appellants agreement Workers of America. than ed some other argue Agreement (the that because this characteriza Bituminous National tion, sympathies jury’s Wage Agreement) had to lie existed between underdog with the producers. South-East Coal. and certain Union in- South-East Coal for all question sufficiency While purposes, family-owned tents and later, will of this evidence dealt be family-run company. and Harry coal Mr. indicating importance that South- LaViers, Senior, son, and his East introduced evidence Junior, Harry LaViers, control- were the agreement which existence of an ling forces behind South-East and made competition restrain trade or ferred, could in- be decisions, good bad, for the either rely is to it did not show that company. company, compared to solely consequences on effects Consolidation, producer is a small of coal prove the antitrust its and its actions earmarked with only claim. If the evidence South-East LaViers’ some name. While there was introduced was the statisticаl evidence personalization company’s claim earlier, then the case should referred occasional, interchanging of the name jury. been submitted to the never have However, plaintiff Harry LaViers, Senior only proof this was not the Junior, no more this was than excessive type offered. Evidence might expected under the circumstanc- appellants object to is admissible and can appellants, partially In es. addition drawing jury in be considered delicto, pari result the defense of in liability its conclusion the issue of any personaliza- tended to contribute supports other evidence which place. tion which have taken generally, the claim. See Local 175 of personalization Conceding International Brotherhood Elec- some States, occur, trical Workers v. F. claim did is still South-East’s 1955); argument 2d accept appellants’ Standard Oil difficult Moore, dispute California into a converted Pennington large company proof. v. company con- over the order of versus small America, assumption appellants’ troversy, United Mine Workers 804, 1963), always (6th reversed sympathies rest with F.2d Cir. jury’s grounds, underdog. on 85 S.Ct. some additional Without U.S. (1965). in fact appellants 14 L.Ed.2d 626 Flintkote were evidence characterizations, Company Lysfjord, 368, 378 by v. 246 F.2d prejudiced these (9th 1957), denied, support asser- U.S. Cir. cert. does not the record injury no At the tions, 78 S.Ct. 2 L.Ed.2d 46. is concluded and it plaintiff’s been close of case there had resulted. by independent established or disassociat Hearsay Admissibility prima case, Certain C. ed evidence a facie thus having conditionally requirement Statements ad mitted the statements met. trial, During intro- South-East portions of answers duced into evidence Sufficiency D. of the Evidencе Mine the United Workers made interrogatories. Appellants The Union was written contend that the authenticity verdict, cer- denial to admit to and the District Court’s asked speeches, and statements tain editorials their motions for directed verdict ap- judgment notwithstanding were made officials which Union verdict are pended in- error, supported to the Union’s answers as the verdict “is not parts terrogatories, evidence, of these contrary and then clear is to un but jury. legal disputed applicable prin Con- documents were read facts and challenges objected argument ciples.” to and Appellants’ solidation now re admissibility gard on proof” these statements to the “clear standard has grounds hearsay already See, Alleged been I. discussed. against (Consol’s objection Instructions, them. Errors Section A. The give refusal re- District Court’s its Required Impose Standard of Proof quested Liability, instruction on this matter supra, pp. at Fur 772-774. Alleged See, Er- thermore, arguments discussed earlier. I. appellants’ ap rors in legal Instructions: Section E. Instruc- plicable principles have also been Respecting tions the Use to be Made with, See, Alleged dealt I. in In Errors Jury Hearsay Statements, of Certain structions, pp. 772-785, and what re 778). supra, p. principal con- at Consol’s sufficiency mains is the issue of type tention is that statements of this evidence. are not to be until is admitted “[t]here considering sufficiency In independent establishing, prima evidence evidence, any advantage if little would facie, that such others were members gained by plain- an itemized review conspiracy.” Standard Oil tiff’s Much intro- case. of the evidence supra. Moore, of California v. duced at trial was similar used to that general rule is that at the trials in Tennessee Consolidated type admissible, however, evidence Coal v. re- United Mine and the Workers subject prima Pennington to exclusion if no facie trial of the case in Lewis v. Pennington. case of the existence of the Yet there was additional question having established. of conditional evidence introduced trial admissibility judge particular significance is for the trial to de to South-East’s States, emphasize termine. Carbo claim and which tended to 1963). F.2d 718 unique There is no South-East’s either case was admitting error conditionally Tennessee Consolidated Lewis. prima (A single statements example before a facie case was is the evidence by independent surounding established evidence circumstances the cancella- subsequently proven, agency such a case is be tion of the sales contract between judge cause the trial has wide discretion Consolidation and South-East agent IRREGULARITIES for South- III. ALLEGED sales Consol acted THE TO JURY WITH RESPECT evidence coal.) some While East’s circumstantial, in with Conversation A. LaViers’ Sr. was Mr. introduced Jurymen jury’s Two might support and itself evidence verdict, direct was also Consolidation contends error reversible District Court committed coupled the circum- which, with when declaring aof in not a mistrial because plaintiff’s case evidence, raised stantial LaViers, Sr., South conversation Mr. conjec- suspicion or mere from one of Coal, had two members East with minds reasonable level where ture to a during trial. outside of court liability upon the might concluded place in a coffee conversation took The reviewing appellants. After part of the shop in where some of the wit the hotel record, there was it is concluded nesses, attоrneys parties jurors, and support evidence to substantial credible staying. was the trial Mr. LaViers were jury’s Court’s verdict. The District seated a table which was waitress at and correct on this matter was decision next to where two situated another table appellants’ directed verdict motions for jurors eating were Dis breakfast. notwithstanding judgment the ver- examining and Judge, after La trict Mr. Viers, properly appellants found dict were denied. were following company,’ examina- I 16. The made ‘in the don't want to use that Court ascertaining what tion of Mr. LaViers term —but Hill contact Mr. and shop: place Osborne, in the coffee took Mr. who are members of the note:) following jury. you (Reporter’s Now, “The oc- recall that incident? do Yes, do, I.aViers, I Your in the immediate curred at presence bench “Mr. Sr.: Court, of counsel and Honor. hearing you stating mind the absence and out of the “The Would Court: jury: just of the what it was? clarify LaViers, “The Court: X want “Mr. Sr.: Yes. Mr. Rown- any- gone get prior breakfast before we into tree had down to other situation my coming thing presence I came into This is of the down. When else. out bench, Shop, hearing jurors, I looked for him and of the at the Coffee he seated connection with the made to the found that only table where was statement looking Schmidt, I ‍​​‌​‌​‌‌​​​‌‌​​​​​‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​​‌​​‌‍counsel for the had one chair and was Mr. at, other table to sit defendant around some Consolidation Coal said, jurors, the head waitress came with reference to two of the Mr. ‘Well, just Osborne, sit here’—which Hill and Mr. who were seen down X.aViers, right Harry aisle from Mr. Rown- in conversation with Mr. across the Sr., Shop bench and I sat down on the at of the Phoenix tree —and Coffee my ordered breakfast. Hotel about to 8:00 o’clock this 7:30 me, sitting morning, And Hill next October Mr. yоu you any me, said, “Now, then, he ‘Do know do want to make and he asked just asking.” in Paints- further statement? I Mr. Oscar Evans who lives am Off the record. ville?’ (Reporter’s note:) said, ‘Well, “An I off-the-record And he doesn’t live place now; gone to Florida discussion took at the bench. Paintsville he has I-.aViers, here, I “The —but do know Mr. Evans.’ Court: Come Mr. ‘Well, please. report- LaViers, said, I Mr. it has been And he used to board morning ed to the Court that in the his house.’ Shop Hotel, you, quite And he said he was Coffee at the Phoenix character. that,’ said, ‘Yes, agree presence Mr. And I I Mr. Schmidt and very and, him well.’ Rowntree— ‘I knew part of the “Mr. Rowntree was not And then I believe that Schmidt: Mr. served, present. breakfast, part, not the main if I knew “The Hill then asked me Court: No. and Mr. stated, lived in Paints- “Mr. Rowntree: As I I was Mr. Nelson Howard who ; yes, ‘I know Mr. Nel- there earlier. ville and I said Howard; “The I know who he came from Gallatin Court: Yes. don’t son you County; busi- else was near was in the automobile there. But seated he standing company in the near or in the ness there and later was coal busi- —not prejudiced by contact this unintentional udicial out-of-court conversation took grant place president a mistrial. and declined to in an elevator between the company jurors. two Appellants the case maintain that president company made an effort Harry Barfield Com- United States jurors approach and then “cement- 1966), pany, con- 359 F.2d by volunteering ed” the contact informa- trols, a mistrial should have been family tion that his wife and her dealt granted authority. of that on the basis drug with the store owned one Reviewing States the decision jurors. The Court observed: Harry appears Barfield it “By way to that that several facts instrumental of summation it clear lacking present tаxpayer president in the case. approached decision are that the Company prej- jurors. They approach In case the did not Barfield ness, thing that, I know him.’ Mr. Hill said he used in addition to was consumed said, ‘Well, I he was to work for him. quite with either of these men? aggressive LaViers, Oh, when he an merchant Sr.: “Mr. there were money there, conversation, imagine a lot of he made I snatches about go arming eating f busi- decided he would into the ten or fifteen I minutes. bought couple farms down ness breakfast. County, understand, I in Bourbon “The whole Court: That covered the period? lost what he had of his investment LaViers, Well, these farms.’ “Mr. Sr.: not the whole guess I period breakfast, period the rest of breakfast was but I served about that time. don’t recall conversation. gentle- you was—there there was some him “The Do want to ask Court: side, man came in on the other anything further? speak LaViers, I turned to him to to him. don’t Mr. Bowntree has “Mr. Sr.: any continuously further recall conversation. cautioned me about this. nothing Well, you point There was about this lawsuit. “The Court: see the you is, mean, your accepts him “The Court: Do want ask I the Court state- question? you say anything ment didn’t about LaViers, “Mr. Schmidt: Mr. there the case. places any- LaViers, were other sit in the down Cof- “Mr. We Sr.: didn’t talk Shop thing case, fee besides next to Mr. Hill and about Your Honor. you you But, see, Mr. Osborne when sat down? Isn’t “The Court: the difficul- ty currying that true? is that more less LaViers, Well, yes, sir, juror “Mr. Sr.: favor with a I realize it —while currying deliberately are other tables for four and tables for isn’t a favor it—but brought questions people’s two and the tables at the bench are for minds. two, along just naturally people and the head waitress came I realize some friendly, just said, just and tossed a menu down and and Kentuckians are hеre,’ put way pretty ‘Sit down and I where sat she know them we well—but —I anything I menu. didn’t seek out this seat. mustn’t do like this. sitting LaViers, very, “Mr. Schmidt: You saw them “Mr. I Sr.: would be very happy there? to avoid them. LaViers, yes, Oh, “Mr. I them Sr.: saw “The Court: The Court is confident sitting you intentionally. anything there. didn’t do ruling That of the Court. your “Mr. mind Schmidt: Was it you Now, anything you do have want that, so, even hurt wouldn’t devel- to ask him? op rapport some sort of a social “Mr. Rowntree: No. gentlemen? May ques- “Mr. I Schmidt: ask him a LaViers, No, Schmidt, “Mr. Sr.: Mr. tion? my that was not I am mind. Yes, “The Court: sir. person people nature a who talks to LaViers, you “Mr. Schmidt: Mr. have might be, the elevator or wherever gentlemen seen each of those sit at and I would be untruthful and unrealistic every morning? same table say engage if I I didn’t do in conversa- LaViers, No, sir, they “Mr. Sr.: tions. not, my knowledge, as far as sat at that They many same table. do sit the Coffee “The Court: How minutes would time, you Shop places, assume, there at various but I don’t or how much I should particular seeing place, say, you your recall them at that would assume conversation you any- Court, Your Honor.” stated what juror identify impartial sought trial because He him. knowing grant through District Court refused to a mis- the fact Lockhart upon learning drug then trial mis- He certain business. his about giv- identity by juror. conduct of a matters are Two sought to cement indicating partial- alluded to as that the name juror his wife’s ity juror First, regarding questionable. his of one to a conversation led during family. apparently also an incident occurred trial which He wife’s allegedly juror was misconduct on the managed find out juror. attorney his An for the Union known had station from the radio following juror developed the facts: brother.” wife attended his a social function Judge dissenting opinion (See the Lexington, Kentucky, during trial. case, in the Colman Barfield jurоr’s appeared It wife was a majority’s questioning p. 124, sorority sister and close friend of the facts.) of these characterization lawyer practiced wife of a who in the Mr. LaViers present case In the mining Kentucky. coal area of Eastern jurors. by next to the a waitress seated juror The was also a close friend of the. Furthermore, out. them did not seek He lawyer. people These met at the social La- juror approached Mr. who it awas function, juror and the mentioned that he question about whether with a Viers lawyer practiced in same a third who Obviously, Mr. individuals. knew certain mining region attorney coal for was an ignored the simply could have LaViers in the trial in which Union he was require that juror, does not the law but attorney very juror and that was “a party law- in a person becomes when a lawyer.” juror’s made able Then the wife all social renounce he must suit present case some comment about ignore people rudely who amenities being following conspiracy “in difficult questions juror’s questions. ask him The following just they driv- what were in a LaViers answered Mr. reading It at with all the and all.” fashion, straight-forward polite without juror’s was not at all clear whether the ingratiate any attempt himself “conspiracy” wife mentioned the word juror. of the no discussion There was not. On these facts a motion was made case. The facts Barfield subpoena juror people and the significance in principal which were involved in incident and examine lacking and the here that decision are them. District Court concluded distinguishable clearly case is “nothing justi- (had) been shown here to course, While, present dispute. fy investigation juror” and an of this scrupulously types must be of contacts overruled the motion. possible, the fact avoided at all brought in this case the contacts were Appellant cites Mattox v. circumstances, about a coincidence States, 140, 13 36 L.Ed. U.S. S.Ct. “seeking-out,” no intentional controlling (1892), requiring as occurred, of the case no discussion that under these an circumstances exami motion the District Court’s denial juror nation of the been should have clearly proper for a mistrial was granted. Mattox, Under the facts in an United States abuse of discretion. was obvious that an examination of Buskirk, F.2d Van jurors place. should have taken In that 1962). allegedly bailiff, present case a court jury deliberating when the ver Alleged ease, stated, Error in the District Court’s B. dict in a murder so that a Mistrial because Refusal Declare him, jury members of the could hear of Certain Conduct of a Juror accused) (the is the “this third fellow he addition, during In has killed.” delibera they Appellants contend that right jury were denied their constitutional tion the of it was read a year. informed, juror in- the trial that each newspaper Until account following did a fact if he wrote remarks: know cluded and, bond for or the ob- the son father accused) (the is not found “If he personally. Upon viously, neither knew man, lucky guilty be a murder he will questioning, he that the fact he stated very against him was for the evidence strong, judg- wrote the bond would not affect his appeared to be or at least any way. dis- ment This case is given to case was an outsider. The tinguishable from Commonwealth Coat- yesterday, and at noon it was Casualty ings Corporation v. Continental expected that their deliberations would 393 U.S. S.Ct. an would re- not last hour before (1968), appellants L.Ed.2d 301 cited turn a verdict. position support to lenge that their chal- their juror have of this should cause (the evidence) strong “It was so granted. In Coat- been ings Commonwealth gave hope up all the friends of Mattox acting individual an arbitrator any result but conviction.” agreement private under a contractual engineering had been an consultant alleged circumstances, the Under these parties dispute col- one of the court should ordered an examina- years. $12,000 over in fees in lected four accuracy tion to determine the Supreme award Court set aside an However, purported of by misconduct. panel made of three arbitrators imagination no stretch of can holding that disclose an arbitrator should argued surrounding the facts might any dealings parties which present incident of misconduct possible impression create an bias. approximates in those Mattox. While Factually legally, present and case questions improprieties are mat- juror only different. remote Here had degree, ters be said cannot party indirect with a lawsuit. contact District Court abused its discretion in Even if the business contacts more ordering were examination of direct, Coatings all juror that Commonwealth participants and the other in the requires dealings. is a disclosure these present repre- incident without further ease, present In the ex- stronger nature and sentation or a indication that juror’s tent of the were business contacts prejudicial appel- some misconduct upon Court, disclosed and the right District impartial lants’ constitutional to an juror, examination of concluded did trial in fact occur. impartially could hear the evidence and he The appel second matter' that any prejudice return a verdict free of point lants to whiсh contend shows might result from his deal- business partiality upon part juror of this ings. The District Court’s refusal agency his insurance underwrote a grant challenge for cause of real estate bond for the son of a former juror was not an abuse of discretion. present official of and minor stockholder 245, States, Holt S.Ct, 2, v. United 218 U.S. Company. juror South-East Coal The (1910); 54 L.Ed. 1021 Cox challenged cause, for but the Dis General Electric 302 F.2d challenge. trict Court overruled the The 1962). Cir. juror examination of the showed that a $5,000 surety posted bond must be with IV. DAMAGES Kentucky Commonwealth of before Jury Damages A. The Award of a real estate broker sell can real estate. juror’s The agency sought insurance damages underwrites South-East al the bond for legedly resulting the son of a former anti-competi official from present and minor stockholder in South tive in this case for three East Coal. bond was year 26, first written and period April one half years litigation several 1962, before this 31, to December meth 1966. Two simply commencedand has been damages renewed ods computing were during 1952-1958, effectively at a dollar amount.17 than used to arrive comparison negated. simple was a first method operating profits losses18 between Appellants raise numerous issues re- arbitrary during period 1952-1958, an garding validity of South-East’s profit period, operating base damages. of four of theories Mention sought period losses for South-East challenges give will idea of the some recovery. this was A similar method general appellants’ nature of Re- attacks. determining dam- the antitrust used specting method South-East’s first Pictures, ages Bigelow Radio v. RKO computing damages, appellants contend 251, 258, L.Ed. 327 U.S. 66 S.Ct. using average profit of 1952- (1946), Company v. Ford Motor comparison 1958 for is unfair Sales, Inc., F.2d Webster’s Auto factors,” “internal and external economic 1966). (1st 885-886 mining i.e. less favorable conditions and general depression overall coal complex The second method was more market, years varied between the used as designed and was to meet certain ob- damages period. a basis and the actual jections appellants had meth- to the first challenged The second method is This method od. used various financial grounds equipment that use of new dur- managerial figures years comparison 1964 invalidates comparison 1964 and 1965 for a managerial the financial and date with figures similar 1963 and 1966. period the base 1962-1963. The third Thus, during statistics the actual dam- objection is that methods both claim loss- ages period (1964 1965) acted as a es for refusal handle Consolidation’s computing damages basis South-East’s coal and that these losses period. Supporting theory, entire cannot be recovered from the Union. South-East introduced six ex- financial appellants Finally, complain that South- showing, part: hibits the effects computed East higher losses were in mining pro- costs and decreased inability get a result of its sufficient duction in 1963 and 1966 had on ship and, railroad cars earnings its coal there- compared years to the base fore, way in no 1964-1965; attributable earnings the effect on alleged conspiracy. two strikes in 1962-1963 and 1966 as compared earnings with 1964-1965; appears appellants’ It that most of price lower challenges realization on coal in 1964- dam- to South-East’s claims of 1965 remaining years than in ages accuracy of the are of the directed at the damage period; alleged damages and the effect amount of not the fact of conspiracy price damages. had general on South-East’s issue rais- There was a per showing realization ton compared of coal ed as to evidence the lack of average price proximate realization of in- cause of South-East’s dustry period damages is, conspiracy; South- 1962-1965. by using East showing ap- sufficiency maintains fact evidence proach appellant’s challenge reviewing damages. However, the validi- rec- ty using figures ord, for 1952-1958 for the it is clear that there was sufficient comparison, allegedly during jury because from credible evidence which damage period inferring necessary justified internal and external ec- was onomic conspirators’ conditions were less favorable causal relation between the Computation injuries reflecting operating profit 17. Figures the first 18. produced damages figure $3,- method losses rather than net income were used 082,816. damages figure produced figures The do not include such because $2,896,713. things percentage depletion the second method was as allowances damages capital, $2,410,452 awarded which are treated as return of approximately $700,000 income, payments (expenses) or less than the interest damages computed by gains capital in- first method and losses and dividend come, $500,000 computed by less than second method.

794 clearly demonstrating

anti-competitive the claimed burden of error conduct and injury. damage Zenith Radio Cor- the factual basis the award an abuse See, Corpora- Research, Armco Steel 395 U.S. discretion. poration Hazeltine v. Dakota, 1562, 129 tion State of North 376 F.2d 100, 125, L.Ed.2d v. 23 S.Ct. 89 legion 206, 1967); (8th 213 Cir. Twentieth (1969). cases The antitrust Century Corporation that, Fox Film v. Gold- proposition which reiterate 1964). wyn, 190, (9th damages 221 Cir. prоven, actual 328 F.2d the fact appellants damages may In this have not shown case suffer computation of See, Story basis of either an error the factual imperfections. Parch- minor award or an abuse of discretion. Company Parchment Paterson ment v. 555, Paper Company, 51 S.Ct. 282 U.S. judgment is affirmed. Bigelow (1931); 248, v. L.Ed. 544 75 Pictures, supra; Zenith Judge PHILLIPS, RKO Radio (concurring). Chief Research, Corporation Hazeltine Radio v. interpret opinion I do not Company supra; v. Web- Motor Ford Judge opinion of case to conflict Edwards, Sales, supra; Inc., Atlas ster’s Auto concurred, in Ram I Building Company Diamond v. Products America, sey Mine Workers v. United 950, Company, F.2d 269 Block & Gravel granted, (6th Cir.), F.2d 416 655 cert. 1959); North Texas Pro- (10th Cir. 958 1006, 1238, L.Ed.2d 397 U.S. S.Ct. Young, F.2d v. ducers Association 235, opinion prepared I concur in the 1962); (5th Flintkote Cir. Judge Brooks. Lysfjord, 246 F.2d v. 1957). (9th Cir. grounds ob principal Appellants’ inter

jection is that verdict conditions external economic nal and management resulted decisions losses, the conduct and not South-East’s ques conspiracy. But the INC., corpora- CARTER-WALLACE, certain of South-East’s tion whether tion, Appellant, were attributable to the losses factors was for or other economic COMPANY, determination, The PROCTER & GAMBLE jury’s consideration and Distributing The Procter & Gamble Rotary Laboratories, Cherokee Inc. v. Company, Manu- & Gamble Procter Drilling Services, Inc., F.2d facturing Market B.A. C. denied, 1967), cert. 390 U.S. Drug Company, Corp., cor- and Oliver 904, 88 S.Ct. 19 L.Ed.2d porations, Appellees. credibility question No. 25280. damages, showing witnesses used Building Company v. Appeals, Products Atlas States Court of supra, Circuit. Ninth Diamond Block & Gravel 269 F.2d at 959. It is concluded Nov. sufficient credible evidence jury’s

support the as to the fact verdict damages damages ‍​​‌​‌​‌‌​​​‌‌​​​​​‌‌​​​​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌‌​​‌​​‌‍amount capable computed precisely as un

der the circumstances. Attorneys’

B. Fees object

Appellants to the award attorneys’ A fees as unreasonable. seeking

party review of an award of at

torneys’ fees an antitrust has the case

Case Details

Case Name: South-East Coal Company v. Consolidation Coal Company, South-East Coal Company v. United Mine Workers of America

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 18, 1970

Citation: 434 F.2d 767

Docket Number: 19623_1

Court Abbreviation: 6th Cir.