International Harvester Co. of America v. Commonwealth

• Court: Court of Appeals of Kentucky
• Citation: 146 S.W. 12,147 Ky. 795
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. COMMONWEALTH [d]
• Decision Date: 18 April 1912

146 S.W. 12

147 Ky. 795

INTERNATIONAL HARVESTER CO. OF AMERICA v. COMMONWEALTH ^[d]

Court of Appeals of Kentucky.

April 18, 1912

Appeal from Circuit Court, Todd County.

Proceeding by the Commonwealth of Kentucky against the International Harvester Company of America. From a judgment for plaintiff defendant appeals. Affirmed.

Browder & Browder, of Russellville, and Arthur M. Rutledge, of Louisville, for appellant.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

CARROLL J.

In a proceeding by penal action instituted in March, 1911, the commonwealth recovered a judgment in the Todd circuit court against the appellant company for $2,500 for violating the anti-trust laws of the state found in sections 3915 and 3941a of the Kentucky Statutes.

Before entering its plea of "not guilty" to the penal action, the appellant company submitted the following demurrer, which was properly overruled by the lower court "Not waiving other grounds of demurrer, but insisting thereon, the defendant International Harvester Company of America hereby assigns as one ground for its demurrer herein that the act of May 20, 1890, being chapter 101 of the Kentucky Statutes, under which this action was instituted and by virtue of which said action is sought to be maintained, must be taken, considered, and read in connection with the act approved March. 21, 1906, entitled 'An act permitting persons to combine or pool their crops of wheat, tobacco, and other products, and sell same as a whole and making contracts in pursuance thereof valid,' and when road, taken, or construed in connection with said act of March 21, 1906, said act of May 20, 1890, denies to it and other persons within the jurisdiction of the state of Kentucky the equal protection of the law, and is in violation of the fourteenth amendment of the Constitution of the United States, and is void." The act of May 20, 1890, did not deny to the appellant company the equal protection of the law, nor is it in violation of the fourteenth amendment of the Constitution of the United States. Commonwealth v. International Harvester Co., 131 Ky. 551, 115 S.W. 703, 133 Am. St. Rep. 256; International Harvester Co. v. Commonwealth, 137 Ky. 668, 126 S.W. 352; International Harvester Co. v. Commonwealth, 144 Ky. 403, 138 S.W. 248.

A reversal of the judgment is asked for these reasons given by counsel for the appellant in their brief: "(1) Because the commonwealth failed to prove that the appellant sold in any form machinery or repairs in Todd county within the year covered by the petition; (2) because the commonwealth failed to show that the market conditions were normal or similar to conditions existing prior to the advance in price; and (3) because the court failed to instruct the jury that it should consider the improved condition of the machines in determining the question of its real value."

It will be observed that there is no is sue made that the commonwealth did not sufficiently prove that the appellant company entered into a combination with other companies for the purpose of regulating, controlling, and fixing the market value of harvesting and other farm machinery; or that in pursuance of such combination it did not regulate, control, and fix the price of the machinery sold by it. It was, however, essential that the commonwealth should prove by direct or circumstantial evidence a sale of some of the machinery manufactured or controlled by the appellant company in Todd county within the period covered by the petition, but not necessary that the commonwealth should prove directly and unqualifiedly a sale by the appellant company in Todd county within the time named in the penal action.

The fact that such a sale was made may be shown indirectly or by circumstantial evidence. In other words, that character of evidence that in ordinary penal actions would be sufficient to establish the existence of any material fact will be sufficient to establish the fact of the sale in a prosecution under the anti-trust statute.

Upon this point, the commonwealth introduced J. L. Orr and H. C. Miller, both of whom testified in substance that in 1910 they were engaged in the sale of agricultural implements in Todd county, and purchased within a year next before March, 1911, harvesting machinery and other farm implements from the appellant company, and the articles so purchased were delivered to them in Todd county. This evidence was, we think, sufficient to show a sale of the machinery by the appellant to these dealers in Todd county. But it is insisted that they were not asked where they purchased the machinery, and that it was indispensable that the commonwealth should have shown by these witnesses, or other evidence, that the machinery was actually purchased by and sold to them in Todd county. But if, as these witnesses testified, they bought the machinery, and it was delivered to them by the appellant company in Todd county, the reasonable and fair inference from this evidence is that the sale took place in Todd county.

Considerable importance is attached by counsel for appellant to a written contract entered into between the company and the Todd County Hardware Company, with which Miller was connected, as illustrating that the sales testified to by Miller were made in Louisville, Jefferson county, Ky. and not in Todd county, Ky. The contract does not state where it was entered into, or executed; but there is evidence that...