American Can Co. v. Bruce's Juices
| Decision Date | 14 June 1951 |
| Docket Number | No. 13037.,13037. |
| Citation | 190 F.2d 73 |
| Parties | AMERICAN CAN CO. v. BRUCE'S JUICES, Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gerhard A. Gesell, Washington, D. C., John M. Allison, Tampa, Fla., and Wm. M. Aiken, Washington, D. C., for appellant.
Cody Fowler and R. W. Shackleford, Tampa, Fla., for appellee.
Before McCORD, BORAH and RUSSELL, Circuit Judges.
From a careful consideration of the petition for rehearing filed by appellant in this cause, we conclude that the opinion heretofore filed warrants explanation. The Court held: * * *" 187 F.2d 919, 921. (Italics ours.)
Even though the record evidence does sustain the contention that defendant adhered in some sort to its quantity discount schedule, we adhere to our former holding that such schedule was nevertheless discriminatory for the reason that the discounts granted were based almost entirely on the annual volume of purchases, and were legally unjustified as having practically no relation to the actual cost of selling customers, or reasonable classes of customers. In this connection, our former opinion speaks exactly and succinctly in this wise: "Thus, for all practical purposes, the above grouping of defendant's customers was based almost entirely on the annual volume of their respective purchases, and was in no wise governed by the actual cost of selling customers."
Appellant further complains of the statement in the opinion to the effect that plaintiff's competitors, Engelman Gardens of Texas and Morgan Packing Company of Indiana, "had received from the defendant special discounts on the price of a particular type Iscan which had been denied to plaintiff." (Italics ours.) In the above quoted language, the court had reference to that testimony concerning the alleged "secret low price" on the 3.12 Iscan which was offered to plaintiff's competitor, Engelman Gardens, in the Fall of 1939, and later made available to Morgan Packing Company in June, 1940. We adhere to our former holding that this lower price, or its equivalent, was actually and in effect "denied to plaintiff" for the reason that defendant failed to adhere to its established freight pricing policy with respect to the 3.12 Iscan shipments desired...
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