from which a jury could find the existence of a pre-existing conspiracy and the fact of damage to plaintiff, the Court feels it would be helpful to review some of the well established principles of law relating to motions for directed verdict.
In considering defendants' motions for a directed verdict, the trial court must, of course, view the evidence and all inferences from the standpoint most favorable to the plaintiff ( Shewmaker v. Capital Transit Co., 1944, 79 U.S.App.D.C. 102, 143 F.2d 142). However, a party is not entitled to rely on inferences which are unreasonable and the jury may not speculate ( Galloway v. United States, 1943, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458). Regarding the quantum of evidence, it has long been the rule in the Federal Courts that a mere scintilla of evidence is insufficient to allow the case to go to the jury ( Pennsylvania R.R. Co. v. Chamberlain, 1933, 288 U.S. 333, 344, 53 S. Ct. 391, 77 L. Ed. 819; Murray v. Towers, 1956, 99 U.S.A.pp.D.C. 293, 239 F.2d 914). Substantial evidence must be present ( Baltimore & O.R.R. Co. v. Postom, 1949, 85 U.S.App.D.C. 207, 177 F.2d 53). Where the facts are in dispute, and where fair minded men may draw different inferences from the evidence relating to them, a jury is the proper tribunal to try the issue ( Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610; Kendall v. Gore Properties, Inc., 1956, 98 U.S.App.D.C. 378, 236 F.2d 673; McCoy v. Moore, 1944, 78 U.S.App.D.C. 346, 140 F.2d 699).
It is in the light of these principles that the Court will consider defendants' contention that there is not substantial evidence from which the jury could find the existence of a conspiracy to violate the antitrust laws. The Court feels in this regard that it would be impracticable and, further, that it is unnecessary to review in this opinion all the evidence presented by the plaintiff in this already voluminous record. The Court has listened attentively to all the evidence, the excellent arguments by all counsel on these motions, and has examined on more than one occasion all of the documentary evidence introduced. It is, of course, elementary in conspiracy cases of this nature that until the participation of an individual defendant has been established by competent evidence admissible against it, evidence of acts of other alleged co-conspirators will not be admitted to establish the particular defendant's participation in the alleged conspiracy ( United States v. United States Gypsum Co., D.C.D.C.1946, 67 F.Supp. 397, 452, reversed on other grounds 1948, 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746; Flintkote Co. v. Lysfjord, 9 Cir., 246 F.2d 368-387, certiorari denied 1957, 355 U.S. 835, 78 S. Ct. 54, 2 L. Ed. 2d 46).
Mere membership in an unincorporated association, in and of itself, is, of course, not sufficient to establish participation in a conspiracy ( Phelps Dodge Refining Corp. v. Federal Trade Commission, 2 Cir., 1943, 139 F.2d 393, 396). However, continued membership in such an association and payment of dues, with a reasonable opportunity to learn of the association's activities on behalf of its members, are sufficient to charge the members with liability for such activities ( Metropolitan Bag & Paper Distributors Ass'n v. Federal Trade Commission, 2 Cir., 240 F.2d 341, 344, certiorari denied 1957, 355 U.S. 819, 78 S. Ct. 24, 2 L. Ed. 2d 35). The individual railroad members of the associations can be held responsible for the unlawful conspiratorial acts or declarations of the associations only if they are shown to have known and approved of such activities and of their unlawful objective.
On the basis of all the evidence presented, the Court feels that a jury could find that a conspiracy of the type alleged by the plaintiff did exist, with the defendant associations and the public relations firm as its principal participants. Further, the Court feels, on the basis of the evidence admitted as to each individual railroad defendant, that the jury could find that each of these defendants, though not involved in every detail of such conspiracy, had knowledge and approved of its illegal objective and the general means of carrying it out. If the evidence is such that a jury could find that a conspiracy under the antitrust laws existed, only slight evidence is necessary to connect individual conspirators with it ( United States v. Morgan, D.C.S.D.N.Y.1953, 118 F.Supp. 621, 743-744).
Defendants' third point on these Motions for Directed Verdict is that the evidence does not present sufficient proof of causation of injury or fact of damage from which the jury could find that plaintiff was injured as a result of any conspiracy on the part of the defendants. The Court, in the trial of this case has, in its discretion, allowed counsel for defendants considerable latitude on cross-examination, even to the extent of allowing examination on matters which might be more properly part of an affirmative defense. The number of documents marked for identification and used by defense counsel on cross-examination totals 353. This cross-examination has placed before the jury charts and documents from which they could conclude that several factors were responsible for the loss which plaintiff alleges it suffered as a result of the alleged conspiracy. Defendants' cross-examination has attempted to develop that a number of causes other than the conduct of the defendants were responsible for the plaintiff's loss. Plaintiff's president on cross-examination has denied that these factors were responsible for plaintiff's losses. These other influences include the end of the hostilities in Korea in 1953, the cancellation by the Interstate Commerce Commission of certain of the temporary operating rights of the plaintiff to transport ammunition and explosives, difficulties resulting from certain purchases of defective equipment by plaintiff, and certain errors in management and business judgment by plaintiff.
Judge Wyzanski, in a wellreasoned opinion in the case of Momand v. Universal Film Exchanges, Inc., D.C.D.Mass.1947, 72 F.Sup. 469, affirmed 1 Cir., 1948, 172 F.2d 37, certiorari denied 1949, 336 U.S. 967, 69 S. Ct. 939, 93 L. Ed. 1118, a case where the evidence tended to show multiplicity of causes of injury, stated as follows:
'* * * the loosest construction (of the Anti-trust laws) would require a plaintiff in a private Anti-trust case to bear the burden of proving that defendants' unlawful acts * * * were either a cause of a specific fraction of his losses or, at any rate, a more substantial cause of his losses than was any other known factor. 72 F.Supp. at page 482.
Applying this test to the evidence of damages presented by plaintiff and the evidence tending to show other causes elicited by defendants on cross-examination, the Court feels that in view of all the evidence the jury could find that the alleged acts of defendants were 'a more substantial cause' of plaintiff's loss 'than was any other known factor'.
Accordingly, the Motion of all Defendants for a Directed Verdict is denied. The Court does not wish to be understood as indicating that at the close of all the evidence, the plaintiff will of necessity have made a case for the jury. The Court only holds that at this stage of the evidence, the defendants are not entitled to a directed verdict. Defendants, of course, under the provisions of Rule 50, Federal Rules of Civil Procedure, may renew such motion at the close of all the evidence.
All exhibits introduced by plaintiff may now be received against all defendants. The jury will be instructed that they may consider these exhibits against any or all of the defendants, giving to them the weight to which they think they are entitled.
Counsel for plaintiff will prepare an appropriate order in accordance with this opinion.