Cape Cod Food Products v. National Cranberry Ass'n

• Citation: 119 F. Supp. 900
• Parties: CAPE COD FOOD PRODUCTS, Inc. v. NATIONAL CRANBERRY ASS'N et al.
• Decision Date: 11 February 1954
• Court: U.S. District Court — District of Massachusetts

119 F. Supp. 900

CAPE COD FOOD PRODUCTS, Inc. v. NATIONAL CRANBERRY ASS'N et al.

United States District Court D. Massachusetts.

February 11, 1954.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James D. St. Clair of Hale & Dorr, Boston, Mass., for plaintiff.

Charles B. Rugg and Henry Streeter, Ropes, Gray, Best, Coolidge & Rugg, Boston, Mass., for defendant.

WYZANSKI, District Judge.

Charge to the Jury

The Court. Mr. Foreman and members of the jury, this is an action under Section 7 of the Sherman Act, as amended by Section 4 of the Clayton Act, incorporated in Title 15 of the United States Code Annotated § 15.

It is a private, as distinguished from a governmental, action. And it is brought by Cape Cod Food Products Company against individuals and corporations. The individuals are Mr. Chase and Mr. Makepeace and Mr. Urann, and the companies are the National Cranberry Association, United Cape Cod Cranberry Company, Hyannis Trust Company, and A. D. Makepeace Company.

In general, and subject to qualifications which I shall state later, the three essential aspects of the case which you may have to consider — and you may not have to consider all of them — but the most you would have to consider are, first, whether there was a violation of the anti-trust acts, second, whether if such a violation occurred it was a substantial cause of damage to the plaintiff company, and, third, if so, what was the amount of the damage.

You have listened to six days of testimony and one day of argument. And in the hour or so that I take to charge you, I shall of course not be able fully to summarize the evidence which you have heard, nor the arguments that have been addressed to you.

Most of you have sat here before listening to cases. Yet I think that none of you has heard a better presented case than this one. And you as jurors, and I as judge, have every reason to be grateful to counsel for their skill in their preparation of the case, the expedition with which they introduced the evidence, the selectivity that they have followed in emphasizing those points which were of chief concern, and their generally high professional standards. The skill with which they have performed their job places upon you and me, if possible, an extra obligation to perform our job faithful to our tasks.

Those of you who have sat with me before know that in charging a jury I do not customarily read the charge. There are jurisdictions in which the judge writes out his charge, and there are other jurisdictions in which he reads what counsel gives him, and there are some jurisdictions in which the judge merely states in the loosest and most general terms principles of law and leaves the facts without any analysis whatsoever.

Here, as in simpler cases, what I shall try to do is first to state to you some rather broad principles which govern you and me in the consideration of this case. Then I shall state to you as accurately as I can what seem to me the governing principles of law. And later, I shall analyze some, but not all, of the evidence.

In the trial of this case, and in this charge, I am not endeavoring in any way, directly or indirectly, to indicate my view of the case. I can truthfully say that I have not a personal opinion with respect to how this case should come out. Indeed, this seems to me a case peculiarly suitable for the determination of jurors.

In the arguments which were addressed to you, both counsel said that a great deal turned upon whether you believed certain witnesses. I agree that many of the transactions do turn on what you believe to be the truth of the testimony which you heard. Moreover, underlying this whole case, as I shall explain as I go along, is the question of what was the intent of the three individuals and the four corporations in any action which they did take.

Intent is always a very subtle problem to analyze, and men and women who come from different backgrounds and who come fresh to the law are much more likely to determine these questions of credibility and intent accurately, than is any single man, particularly an individual who from sitting over a long period of time in cases of like character may have formed some unconscious or conscious bias. If I have wanted to express an opinion to jurors in any case, I have not hesitated to do so. Some of you have seen me within the last few weeks express quite clearly how I thought a case should be decided, and I think I know how to do it explicitly when I want to do it. In putting questions to witnesses in this case, in making rulings, in charging the jury, in the tone of my voice, in any gesture or nod, I have not meant indirectly to express any view, and I repeat I have no view as to how this case should be decided.

In this case, as in other cases, you members of the jury are the persons who are to determine what are the facts in the case. It is you who are to judge of the truthfulness of the witnesses. It is your recollection, and not mine nor counsel's that is to govern you in recalling what were the facts shown by the witnesses.

You are expected to take into account all that you heard offered in testimony, whether orally or in writing. There is no particular rule of law in this type of case which gives any special primacy or importance to written, as distinguished from oral, testimony. You may be more persuaded by a written record or you may be more persuaded by oral testimony. But the question is one for you, and there is no rule that one type of testimony is automatically to be preferred to another type.

If testimony is given with respect to conduct which is equivocal, that is to say, which is susceptible of being interpreted as lawful, and in your view equally susceptible as being unlawful, you will interpret it as being lawful. That is to say, if you are persuaded that the conduct is equally consistent with a lawful motive and an unlawful motive, and you don't know which it is, you will interpret it as being lawful.

In estimating the truthfulness of witnesses, you will use just those standards which you use in private life. You will take into account the demeanor, the conduct, of a witness on the stand. You will consider whether his story is consistent. You will take into account the testimony that other people give in testing whether that particular witness told the truth. And you will scrutinize the evidence with that care which you devote to the serious matters of life.

So much by way of general instruction. Much that I have said, you have heard me say before. And now I turn more particularly to the problems of law which are presented in this case.

You know, and I know, that I may make errors in this statement of law. But if I make an error, it will be corrected by the Court of Appeals or the Supreme Court of the United States, and you as jurors are not to correct me on the law. Your judgment of the facts is final, but my judgment on the law is, for the purposes of this immediate trial, final, subject to reversal on appeal.

You will recall that I said that this was an action brought under Section 7 of the Sherman Act, as subsequently modified by Section 4 of the Clayton Act, and incorporated in the United States Code Annotated. I emphasize that this action is here in this court only on a charge of violation of the anti-trust acts. If the defendants have committed any other wrong — and I don't suggest they committed wrong of any kind, since that is up to you — but if they have committed any other wrong, you and I are not now concerned with it, for the jurisdiction of this court and your right and my right to hear this case are founded exclusively on the anti-trust acts. We are not reviewing the general quality of banking policy, or whatnot, of the defendants. We are concerned with the charge that they have conspired to violate the anti-trust acts.

And so I shall, in order to emphasize this, begin by reading to you that aspect of the Federal anti-trust statutes which it is claimed that they have violated. Before I read it, let me in the briefest, and not the most accurate, way characterize its general purport. I think you will follow the words better in detail if I state loosely and generally what is in this section. This section prohibits persons — and by persons, corporations as well as individuals are meant — from conspiring to monopolize, or to attempt to monopolize, interstate commerce. And, as I shall explain in a moment, it is a violation if the conspiracy is directed at any appreciable and recognizable segment of interstate commerce, as, for example, if it were directed to that unit of interstate commerce which includes the processing of cranberries.

So far as it is material, the section of the law to which I have referred, which is Section 2 of the Sherman Act, reads as follows reading

"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, * * * shall * * *" be deemed to be a violator of the statute.

I am going to begin by talking about the word "monopolize" which appears in the statute. And you will note that the word "monopolize" is a verb and not a noun. That is, the statute is directed at one or several people who monopolize; it is not directed in terms at a monopoly, and certainly it isn't directed at what laymen ordinarily talk about as a monopoly. You may start with the notion that anybody who has 100 per cent of the business is a monopoly, but that would be the wrong approach in connection with this statute. As here used, the verb "monopolize" means to acquire through means which are not specifically approved a dominant position in the market so as to exclude actual or potential competition, and to follow such a course of conduct with the intent of monopolizing.

Whether that statement is accurate or not, I am sure you didn't follow it all because...