Siegfried v. Kansas City Star Company

• Decision Date: 01 March 1961
• Docket Number: No. 11462.,11462.
• Citation: 193 F. Supp. 427
• Parties: Craig SIEGFRIED, as a sole proprietor, and Craig Siegfried, Cedric Siegfried, Charles M. Siegfried and Frank E. Fowler, d/b/a The Blue Valley Company, a partnership, Plaintiffs, v. KANSAS CITY STAR COMPANY, a corporation, and Emil A. Sees, Defendants.
• Court: U.S. District Court — Western District of Missouri

193 F. Supp. 427

Craig SIEGFRIED, as a sole proprietor, and Craig Siegfried, Cedric Siegfried, Charles M. Siegfried and Frank E. Fowler, d/b/a The Blue Valley Company, a partnership, Plaintiffs, v. KANSAS CITY STAR COMPANY, a corporation, and Emil A. Sees, Defendants.

No. 11462.

United States District Court W. D. Missouri, W. D.

March 1, 1961.

Ray D. Jones, Jr., Carrol C. Kennett, Kansas City, Mo., for plaintiffs.

Watson, Ess, Marshall & Enggas, Carl E. Enggas, Colvin A. Peterson, Jr., Kansas City, Mo., for defendants.

RIDGE, Chief Judge.

In response to the order entered herein on December 16, 1960, the parties have filed motions "as to what form of judgment, if any, should be entered on the verdict of the jury as returned at the trial" of this case on December 8, 1960.

I have had an opportunity to review the transcripts of proceedings as made at the eleven (11) pre-trial conferences held herein, (944 pages); the partial transcript of testimony adduced at the trial; and notes made during both those cycles of this litigation. No useful purpose can be served by elucidating the study-time given thereto. It is sufficient to say that throughout the three-year course of this litigation the Court, at pre-trial and numerous informal conferences with counsel, undertook to crystallize the contested issues which, under the law, ultimately had to be submitted to the jury for determination; and counsel for these parties are fully aware of that fact. During the course of that procedure counsel were given full opportunity to develop and test their respective theories of claim and defense. Full discovery, by way of depositions, interrogatories, production of documents, examination of books and records, requests for admissions of fact; and access to the complete record compiled in the antecedent criminal action, including exhibits and transcript of the testimony and other proceedings had in that litigation, was made available to counsel. If the record in this case attests to anything, it attests to the plain, clear and unqualified fact that this Court has done everything in its power to give plaintiffs and defendants every possible opportunity to marshal all evidence available to them in support of their respective theories of claim and defense for submission to the jury empaneled in this action.

From the outset of such pre-trial process it was evident to this Court that defendants in all probability would not contest the issue of monopoly and attempt to monopolize, as raised by the pleadings in this case. An examination of the pre-trial record will convince any impartial mind of that fact; and, that such was patently apparent, for certainty, at least four (4) months before the commencement of the trial of this case on its merits. For instance, in brief filed with the Court as early as January, 1960, defendants' counsel stated:

"Our position with respect to proof of quantum of damages is that the evidence tendered by plaintiff to date, as outlined by various documents filed with the Court and as contained in various exhibits prepared by plaintiff, is so speculative and conjectural as to be inadmissible herein." (Br. 1/20/60, p. 55.)

At the pre-trial conference held on August 15, 1960 (Tr. 879) the following statement appears of record:

"The Court: Let the record show that counsel for the defendant has just stated to the court that the main thrust of defense is going to be on the question of damages; that the plaintiff has established no damage by reason of the monopoly or attempt to monoplize claimed."

Such is indicative of the whole background record made at the pre-trial conferences in preparing this case for trial on its merits. As a consequence, the chief endeavor of this Court for three years has been directed to developing issues as to evidentiary matter that would be adduced at the trial of this case, relating to the impact of the monopoly and attempt to monoplize as charged by plaintiffs on their respective business operations; and, the development and formulation of issues in respect to evidence as to the quantum of damages that might have been sustained by the plaintiffs as a proximate result thereof.

It is apparent from the record herein that since the time the first pre-trial conference was held plaintiffs' counsel have demonstrated much uncertainty of mind regarding the proof sufficient to establish the quantum of damages allegedly sustained by the plaintiffs. Many hours have been consumed by court and counsel in trying to resolve that matter, and in sounding out alternative and contradictory theories of claim for damages as proffered by the plaintiffs in this case. I am content to let the pre-trial transcript on file in this case speak for itself concerning this subject.

The matter now before the Court for determination boils down to this:

(1) On the record before the Court, should a trial de novo be granted to plaintiffs because the jury found that the plaintiffs' claim for damages by way of depreciated advertising revenue, was "speculative"; or should another trial be granted confined solely to the issue of damages allegedly sustained from that source, in the light of the verdict as returned by the jury?

If not:

(2) What legal judgment is indicated and should now be entered on the verdict of the jury so returned, considered in the light of the record here made?

Counsel for the parties have filed suggestions in support of motions addressed to the above propositions; fortifying the same by reference to numerous opinions rendered in previous anti-trust litigation which they contend are legally controlling of the action now to be taken by the Court. It is not necessary to here unravel the convoluted manner in which they apply such citations to the propositions supra. It should be noted, however, that the authorities cited, for the most part, have previously been considered by this Court; the rule of law as therein declared considered and discussed between court and counsel at pre-trial conferences; and, as counsel for plaintiffs state, this Court is very conscious of the fact that "In this, or any, anti-trust case counsel for both sides can find statements in these and other cases to support their argument."

Tersely stated, the applicable law cited, to the matter now before the Court for decision makes clear the following axioms: that in a private anti-trust action, as in all other litigation, each case must stand or fall on its own particular facts; and, that it is a fundamental rule of law in anti-trust litigation, where the fact of injury has been shown to exist in violation of the anti-trust laws of the United States, the Courts have, with great liberality, sustained any reasonable amount of damages assessed by a jury, where the record reveals any competent evidence to sustain the amount of damages so assessed. There can and should be no confusion in the mind of anyone concerning those propositions.

The flusteration here, if any exists, is not as to the state of applicable law, but the status of the record as made by the plaintiffs in this case, to sustain the burden of proof which the law casts upon them in this private anti-trust litigation to prove the amount of damages. "You can't go to a book and find the answer" to that problem. Cape Cod Food Products v. National Cranberry Ass'n, D.C., 119 F.Supp. 900, 910.

Shred of all superfluity, by the jury verdict returned herein, a die has been cast which molds the following ultimate facts once at issue as having been finally adjudicated: (1) During the period from January 7, 1950, through December 12, 1957, the defendant The Kansas City Star Company possessed monopoly power which it used to control and dominate interstate trade and commerce in the dissemination of news and advertising; (2) and, with Emil A. Sees, it attempted to monopolize the dissemination of news and advertising in the metropolitan area of Kansas City, Missouri, as a consequence of such power; (3) such monopoly, and attempt to monopolize, were a proximate cause of injury to the plaintiffs in their operation of The Pictorial Shopper; The Independence Daily News; and Radio Station KIMO; (4) however, such monopoly power and attempt to monopolize did not substantially reduce and retard the circulation of either The Independence Daily News, or The Pictorial Shopper; (5) but did substantially reduce and retard the advertising revenue of both of those publications, as well as that of Radio Station KIMO; (6) however, the amount thereof, measured in dollars and cents, was "speculative." ("Substantially" as above used is synonymous with "materially.")

Hence the only matter now for consideration by this Court is reduced to a single proposition which is wholly related to the evidence adduced by plaintiffs to sustain the burden of proof which the law casts upon them in this case, to prove the amount of damages which they allegedly sustained as a proximate result of defendants' adjudicated violations of Section 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. § 2. As to that proposition, it is well settled case law that "juries are allowed to act upon probable and inferential, as well as direct and positive, proof," in ascertaining the amount of damages sustained by one whose business has been subject to the conduct of another in violation of the anti-trust laws of the United States. As said by the Supreme Court of the United States, in Bigelow v. RKO Radio Pictures, 1946, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652:

"The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. * * * That principle is an ancient one, * * * and is not restricted to proof of damage in antitrust suits, although their character is such as frequently to call for its application * * *." 327 U.S. loc. cit. 265, 66 S.Ct. loc. cit. 580.

But it must not be overlooked that the Court further said:

"In such a case, even

...