Thomsen v. Cayser/Opinion of the Court
A motion to dismiss the writ of error is made, two grounds being urged: (1) The circuit court of appeals was without jurisdiction to allow the writ on March 15, 1912, for the reason that its judgment had become executed and the judgment entered thereon in the circuit court November 24, 1911, had become final and irrevocable before the petition for the writ was filed and the order allowed. (2) The judgment of the circuit court was entered in the form finally adopted at the request of plaintiffs and by their consent, and the errors assigned by plaintiffs were waived by such request and consent.

The argument to support the motion is somewhat roundabout. It gets back to the circuit court and charges that because that court had entered judgment on the original mandate and had adjourned for the term without any application having been made to recall that judgment, and because no writ of error to review it was sought, the judgment became a final disposition of the case.

We are not concerned with what the circuit court might have done, but only with what the circuit court of appeals did and the jurisdiction it possessed. It received and granted a petition for rehearing, ordered a recall of the mandate previously issued, set aside the judgment of the circuit court, and remanded the case with directions to dismiss the complaint. The plaintiffs did not consent to a judgment against them, but only that, if there was to be such a judgment, it should be final in form instead of interlocutory, so that they might come to this court without further delay.

Subsequently a petition for the writ of error was filed and allowed and all further proceedings upon the part of the defendants for the enforcement of the judgment were suspended and stayed until the final determination by this court upon the writ of error, in return to which the record was properly furnished. Atherton v. Fowler, 91 U.S. 143, 23 L. ed. 265.

The motion to dismiss is denied.

The case in the courts below had a various fate, victory alternating between the parties, but finally resting with defendants.

The plaintiffs, dissatisfied, have brought the case here. We are confronted at the outset, in view of the proceedings in the courts below, with contentions as to what questions of law or fact are before us.

Notwithstanding two trials and two appeals and reviews in the circuit court of appeals, defendants insist the facts are yet in controversy. We cannot assent.

It will be observed from the exerpts from the opinions of the circuit court of appeals that the case was decided upon the proposition of law that the combination charged against defendants was not in unreasonable restraint of trade, and that such character was necessary to make it illegal under the Federal Anti-trust Act. As to the fact of combination and restraint and the means employed both trial and appellate courts concurred, and their conclusion is not shown to be erroneous.

There is a contention that 'there is not in the record any direct proof whatever of the terms of any conference or agreement All that appears is that certain steamship All that appears is that certain stamship owners consisting of firms, the identity of whose members is not established, operated steamers in the trade to South African ports without competing with one another.' But more than that appears, and it cannot be assumed that the circulars that were issued and the concerted course of dealing under them were the accidents of particular occasions having no premeditation or subsequent unity in execution. The contention did not prevail with the courts below and we are brought to the consideration of the grounds upon which the circuit court of appeals changed its ruling; that is, that it was constrained to do so by Standard Oil Co. v. United States, 221 U.S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734, and United States v. American Tobacco Co. 221 U.S. 106, 55 L. ed. 663, 31 Sup. Ct. Rep. 632.

It is not contended that the facts of those cases or their decision constrained such conclusion, but only that they announced a rule which, when applied to the case at bar, demonstrated the inoffensive character of the combination of defendants. In other words, it is contended that it was decided in those cases that 'the rule of reason' must be applied in every case 'for the purpose of determining whether the subject before the court was within the statute,' to quote the words of the opinion, and, as explained in subsequent cases, it is the effect of the rule that only such contracts and combinations are within the act as, by reason of their intent or the inherent nature of the contemplated acts, prejudice the public interest by unduly restricting competition or unduly obstructing the course of trade. Nash v. United States, 229 U.S. 373, 376, 57 L. ed. 1232, 1235, 33 Sup. Ct. Rep. 780; Eastern States Retail Lumber Dealers Asso. v. United States, 234 U.S. 600, 609, 58 L. ed. 1490, 1498, L.R.A.1915A, 788, 34 Sup. Ct. Rep. 951.

But the cited cases did not overrule prior cases. Indeed, they declare that prior cases, aside from certain expressions in two of them,  or asserted implications from them, were example of the rule and show its thorough adequacy to prevent evasions of the policy of the law 'by resort to any disguise or subterfuge of form,' or the escape of its prohibitions 'by any in direction.' And we have since declared that it cannot 'be evaded by good motives,' the law being 'its own measure of right and wrong, of what it permits or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of parties, and, it may be, of some good results.' Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, 57 L. ed. 107, 117, 33 Sup. Ct. Rep. 9; International Harvester Co. v. Missouri, 234 U.S. 199, 58 L. ed. 1276, 52 L.R.A.(N.S.) 525, 34 Sup. Ct. Rep. 859.

The rule condemns the combination of defendants, indeed, must have a stricter application to it than to the combinations passed on in the cited cases. The defendants were common carriers and it was their duty to compete, not combine; and their duty takes from them palliation, subjects them in a special sense to the policy of the law.

Their plan of evasion was simple and as effective as simple. They established a uniform freight rate, including in it what they called a primage charge. This charge was refunded subsequently, but only to shippers who shipped exclusively by the lines of the combining companies, and who had not, directly or indirectly, made or been interested in any shipment by other vessels. And there was the further condition that the rebate was not payable on the goods of any consignee who directly or indirectly imported goods by vessels other than those of the 'conference,'-to use the word employed by the witnesses to describe the combining companies. This loyalty on the part of the consignees was subsequently excused, but loyalty upon the part of shippers was continued to be exacted, and its reward was the refunding of the primage charge. That the combination was effective both the lower courts agreed. Upon its extent they differed, the court of appeals considering that while it was in restraint of trade, the restraint was reasonable and therefore not obnoxious to the law.

The court of appeals has not given us its reason for its conclusion. Counsel for defendants say that the Standard Oil and Tobacco Cases furnished the explanation, and that they support what the history of the act establishes, that it was the 'clear intent upon the part of Congress not to condemn contracts and combinations merely because they are in restraint of competition, or merely because they operate to raise the cost of commodities to consumers.'

The argument that is employed to sustain the contention is one that has been addressed to this court in all of the cases and we may omit an extended consideration of it. It terminates, as it has always terminated, in the assertion that the particular combination involved promoted trade, did not restrain it, and that it was a beneficial, and not a detrimental, agency of commerce.

We have already seen that a combination is not excused because it was induced by good motives or produced good results, and yet such is the justification of defendants. They assert first that they are voluntary agencies of commerce, free to go where they will, not compelled to run from New York to Africa, and that, 'unlike railroads, neither law nor any other necessity fixes them upon particular courses;' and therefore, it is asked, 'who can say that otherwise than under the plan adopted, any of he ships of the defendants would have supplied facilities for transportation of commodities between New York and South Africa during the time referred to in the complaint?' The resultant good of the plan, it is said, was 'regularity of service, with steadiness of rates;' and that 'the whole purpose of the plan under which the defendants acted was to achieve this result.'

We may answer the conjectures of the argument by the counter one that if defendants had not entered the trade, others might have done so and been willing to serve shippers without construing them,-been willing to compete against others for the patronage of the trade. And it appears from the testimony that certain lines so competed until they were taken into the defendants' combination.

Nor can it be said that under defendants as competitors, or that under competing lines, service would not be regular or rates certain, or, if uncertain, that they would be detrimentally so.

That the combination was intended to prevent the competition of the lines which formed it is testified, and it cannot be justified by the conjectures offered by counsel; nor can we say that the success of the trade required a constraint upon shippers or the employment of 'fighting ships' to kill off competing vessels which, tempted by the profits of the trade, used the free and unfixed courses of the seas, to paraphrase the language of counsel, to break in upon defendants' monopoly. And monopoly it was; shippers constrained by their necessities, competitors kept off by the 'fighting ships.' And it finds no justification in the fact that defendants' 'cotributions to trade and commerce' might 'have been withheld.' This can be said of any of the enterprises of capital, and has been urged before to exempt them from regulation even when engaged in business which is of public concern. The contention has long since been worn out and it is established that the conduct of property embarked in the public service is subject to the policies of the law.

It is contended that the combination, if there was one, was formed in a foreign country and that, therefore, it was not within the act of Congress; and that, besides, the principals in the combination, and not their agents, were amenable to the law. To this we do not assent. As was said by the circuit court of appeals, the combination affected the foreign commerce of this country and was put into operation here. United States v. Pacific & A. R. & Nav. Co. 228 U.S. 87, 57 L. ed. 742, 33 Sup. Ct. Rep. 443. It, therefore, is within the law, and its managers here were more than simply agents-they were participants in the combination.

It is, however, contended that even if it be assumed the facts show an illegal combination, they do not show injury to the plaintiffs by reason thereof. The contention is untenable. Section 7 of the act gives a cause of action to any person injured in his person or property by reason of anything forbidden by the act, and the right to recover threefold the damages by him sustained. The plaintiffs alleged a charge over a reasonable rate and the amount of it. If the charge be true that more than a reasonable rate was secured by the combination, the excess over what was reasonable was an element of injury. Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U.S. 426, 436, 51 L. ed. 553, 557, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075. The unreasonableness of the rate and to what extent unreasonable was submitted to the jury, and the verdict represented their conclusion.

The next contention is that the fact of combination should have been submitted to the jury, and not decided as a matter of law by the court. We are unable to assent. There was no conflict in the evidence, nothing, therefore, for the jury to pass upon; and the court properly assumed the decision of what was done and its illegal effect.

It is next contended that the jury was permitted to consider as elements of damage supposititious profits. The record does not sustain the contention. The profits were not left to speculation. There were different sums stated, resulting from the loss of particular customers, and the fact of their certainty was submitted to the judgment of the jury. They were told that they 'ought not to allow any speculative damages,' that they were not 'required to guess' as to what damages 'plaintiff claimed to have sustained.' And further, that the burden of proof was upon plaintiffs and that, from the evidence, the jury should be able to make a calculation of what the damages were. Besides, plaintiffs alleged an overcharge, and the verdict of the jury was for its amount and interest.

Two other contentions are made: (1) The court should have charged the jury that the burden was on the plaintiffs to show that the rates on their shipments were excessive and unreasonable. (2) The court erred in permitting plaintiffs to amend their complaint so as to set up a new cause of action.

(1) If there was error in this, its effect is not appreciable. The record shows a most painstaking trial of the case on the part of counsel and the court, a full exposition of all of the elements of judgment, and careful instructions of the court for their estimate. It would be going very far to reverse a case upon the effect of the bare abstraction asserted by the contention, even granting it could be sustained.

(2) Permitting the amendment of the complaint was not an abuse of the discretion which a court necessarily possesses.

The above are the main contentions of defendants. They make, besides, a contention comprehensive of all of the rulings against them; but to give a detailed review of such rulings would require a reproduction of the record, and we therefore only say that they have been given attention and no prejudicial error is discovered in them.

Judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed. 

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