William H. Rankin Co. v. ASSOCIATED BILL POSTERS OF US, ETC.

• Decision Date: 19 May 1930
• Docket Number: 173.,No. 172,172
• Citation: 42 F.2d 152
• Parties: WILLIAM H. RANKIN CO. v. ASSOCIATED BILL POSTERS OF UNITED STATES AND CANADA (OUTDOOR ADVERTISING ASS'N OF AMERICA, Inc.) et al. CHARLES A. RAMSAY CO. v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

42 F.2d 152 (1930)

WILLIAM H. RANKIN CO. v. ASSOCIATED BILL POSTERS OF UNITED STATES AND CANADA (OUTDOOR ADVERTISING ASS'N OF AMERICA, Inc.) et al.

CHARLES A. RAMSAY CO. v. SAME.

Nos. 172, 173.

Circuit Court of Appeals, Second Circuit.

May 19, 1930.

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Greene & Hurd, of New York City (George F. Hurd, Daniel S. Murphy, and S. Giddings Howd, of New York City, of counsel), for appellants.

Emanuel Harris, of New York City (Nathan Burkan, Sol. A. Rosenblatt, and Emanuel Harris, all of New York City, and Thomas G. Haight, of Jersey City, N. J., of counsel), for appellees.

Before SWAN, CHASE and MACK, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

Much of the argument contained in the rather voluminous briefs filed, though ostensibly made on the question of sufficiency of proof, is directed to what has already been decided by the Supreme Court in Ramsay v. Bill Posters, supra. It should be needless to point out that it is idle to ask us now to discuss the sufficiency of these complaints, for the defendants are bound to regard that as established, and so are we. United States Trust Co. v. New Mexico, 183 U. S. 535, 539, 540, 22 S. Ct. 172, 46 L. Ed. 315. What is now open relates to the adequacy of the proof on which the verdicts underlying the judgments were rendered and errors, if any, committed during the trial in the District Court. Not only have the defendants, including Briggs, and Ivan B. Nordhem Company whose nonparticipation in the unlawful combination and conspiracy is especially urged (but see Atlanta v. Chattanooga Foundry & Pipe Works C. C. A. 127 F. 23, 64 L. R. A. 721), failed to point out lack of proof in support of a single essential allegation, but a careful inspection of the lengthy record filed discloses that it was impossible for them to have done so. The identical allegations which have already been held sufficient to state a cause of action have been proved so abundantly that we pass without delay to a consideration of the other phases of this appeal with only the additional observation that the decree of 1916 ran against all these defendants and under the Clayton Act (15 USCA § 16) was itself prima facie evidence of their violation of the law. The evidence introduced, far from overcoming the prima facie effect of the decree, strongly tended to support the plaintiffs' allegations.

As above stated, no violation of the decree of the District Court for the Northern District of Illinois entered in 1916 was proved. Error is claimed in the refusal of the court to charge that "the evidence shows that there was no refusal by defendants to accept and post advertising posters for anybody subsequent to July, 1916, and the period subsequent to that date has no bearing on any of the issues in this case and should be dismissed from the minds of the jury." The part of this request relating to the tendency of the evidence as to nonviolation of the 1916 decree was in accordance with the fact, but this was simply part of a request which embodied unsound legal conclusions, and the court could disregard such a request entirely. Texas & Pacific Ry. Co. v. Humble, 181 U. S. 57, 21 S. Ct. 526, 45 L. Ed. 747; Miles v. Lavender (C. C. A.) 10 F.(2d) 450; American Surety Co. v. Blount County Bank (C. C. A.) 30 F.(2d) 882, 884. Whether the harmful effect to the plaintiffs of the illegal acts of the defendants committed before the date of the 1916 decree ended with the entry of that decree or not was primarily a question of fact, and, if there was evidence tending to show that the plaintiffs continued to suffer damages after the decree date because of the previous unlawful acts of the defendants, such damages were recoverable. There was such evidence. The plaintiffs had already lost much business because they were prevented by the defendants from getting their posters displayed. Some of their clients had left them; the confidence of former clients in plaintiffs' ability to get the defendants to accept their posters was not shown to have been restored by the stroke of the pen which signed the decree; the uncertainty as to the absolute finality of the decree in its future effect on the business was not dispelled at least until the appeal taken from it was dismissed six years later in 1922. The decree could not as a matter of law, and especially not in the face of evidence showing the contrary, be held to have done away with all continuing damage directly traceable to the defendants' former unlawful interference.

It is also claimed that, even if the defendants are guilty, plaintiff Rankin cannot recover because it is in pari delicto. This question was submitted to the jury under instructions to which no objection was made and which followed correctly the law of Eastman Kodak Co. v. Southern Photo Material Co., 273 U. S. 359, 377, 47 S. Ct. 400, 71 L. Ed. 684. The issue was decided by the jury against the defendants, and we think the jury amply justified in reaching the conclusion that this claim was not supported by the proof. The evidence contained nothing to alter the situation as it appeared in this respect when the opinion in Ramsay Co. v. Bill Posters' Association, supra, was handed down. We quote from the end of that opinion because what is there stated applies with equal force here. "We find no adequate support for the claim that plaintiffs were parties to the...