The opinion of the court was delivered by: SIRICA
On February 17, 1958 defendant (66), the Pennsylvania Railroad Company, filed a counterclaim in this action which reads as follows:
On February 18, 1958 defendant (72), Southern Pacific Company, filed a similar counterclaim in paragraphs 9 and 10 of its counterclaims, as did defendants (8), The Atchison, Topeka & Santa Fe Railway Company; (16), Chicago, Burlington & Quincy Railroad Company; (21), Chicago, Milwaukee, St. Paul & Pacific Railroad Company; (22), Chicago and Northwestern Railway Company; (23), Chicago, Rock Island and Pacific Railroad Company; (33), Illinois Central Railroad Company; (40), Missouri-Kansas-Texas Railroad Company; (41), Missouri Pacific Railroad Company; (70), St. Louis-San Francisco Railway Company; (76), Union Pacific Railroad Company; and t78), Wabash Railroad Company, in Count II of their counterclaims. On August 25, 1960, by order of the Court, the first so-called 'pre-trial' conference on these counterclaims was called for September 17, 1960. This order directed each counterclaimant:
'(To) be prepared to state * * * the specific evidence by which it proposes to show (a) the plaintiff's intent to exclude the counterclaimant from competing for government explosives traffic, (b) the conspiratorial conduct intended to accomplish such an injury and (c) the actual impact of this conduct upon the counterclaimant's ability to compete for such traffic.'
This conference was held on September 17, and after considering all memoranda submitted by the parties, the proffered evidence of counterclaimants and the arguments, the Court, by Order of September 21, 1960, directed a separate trial of said counterclaims while retaining jurisdiction to consider any matters relating to the counterclaims which might be made a matter of record prior or subsequent to the conclusions of the trial of the case in chief. On September 23, 1960, plaintiff filed a motion for a summary judgment or a directed verdict which was briefed and argued on October 7, 1960. (On November 5, 1960, the jury returned a verdict for plaintiff against defendants (2), (3), (4), (5) and (66), in the case in chief.) This, then, is the history of and the present posture of these counterclaims, which are the only remaining counterclaims in this case.
At this pre-trial conference on the counterclaims, defendant-counterclaimants, while declining to formally amend their counterclaims, orally restricted their claim to that contained in subsection (c) of Count II, i.e.:
'Commencing prior to January 1, 1954 and at all times since that date Riss has unlawfully combined and conspired with other motor carriers * * * (c) to fix prices for (such) transportation. In furtherance of this combination and conspiracy Riss and other motor carriers have acted jointly to establish uniform rates over competing routes for the transportation of property in interstate commerce for the United States and particularly for the transportation of ammunition and explosives at unreasonably low levels. Riss participated in such joint action for the establishment of uniform rates for the purpose of diverting to itself and other motor carriers all such transportation for the United States.' (Emphasis added.)
Counsel disagree as to whether the above counterclaim as restricted states a price-fixing conspiracy with a monopolistic purpose or whether it states only a pure price-fixing conspiracy in violation of section 1. For reasons which will appear later in this opinion, the Court does not reach this question, or the question of the sufficiency of proof of liability under either theory.
It has, on occasion, been the practice of this and other Courts to require counsel to first offer proof on the question of liability so that if, in the opinion of the Court, no case of liability has been established, the question of the sufficiency of damage proof need not be reached. In this instance, the Court feels it advisable to reverse this procedure and examine, in the light of a motion for summary judgment, defendant-counterclaimants' proof of damages. In protracted antitrust cases it is not unusual for courts to refrain from passing on the evidentiary basis of a conspiracy charge when they have determined that insufficient evidence existed to support the damage claim. See: Wolfe v. National Lead Co., 9 Cir., 1955, 225 F.2d 427, 429; Delaware Valley Marine Supply Co. v. American Tobacco Co., D.C.E.D.Pa.1960, 184 F.Supp. 440.
For all practical purposes these counterclaims, insofar as the damage aspect is concerned, are at the same stage as if they had been actually tried. Counsel for counterclaimants have indicated that as far as their damage proof is concerned, they intend to rely on the record of the case in chief. On Saturday, September 17, the following discussion occurred between Court and counsel:
'The Court: As I understand that, the means to me that you are not going to show what all these other alleged co-conspirators did or transported; you are going to show what Riss did.
'Mr. McGlothlin: Yes, sir. (Transcript, p. 17,401.)
'The Court: Now let me ask you this question, and maybe you have an answer to it:
'Even though you are not going to show what all of these alleged conspirators haul or how much traffic they hauled, you have got this information which you are going to rely on, 37 to 37-C.
'Why should not the Court and the jury have the benefit, at least, of knowing exactly how much you hauled between the points set forth in 37 to 37-C by the ...