Union Castle Mail S. S. Co. v. Thomsen

190 F. 536, 111 C.C.A. 368, 1911 U.S. App. LEXIS 3783

Opinions

NOYES, Circuit Judge.

When this, case was in this court before we said, upon the authority of the decisions of the Supreme Court as we then interpreted them, that whether the restraint of trade imposed by the combination in question was reasonable or unreasonable was immaterial. It is also apparent from the record that the Circuit Court upon the second trial in holding as a matter of law that the combination shown was in violation of the statute, acted upon the same view of the law.

In the light of the recent decisions of the Supreme Court in the Standard Oil (221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619) and Tobacco (221 U. S. 106, 31 Sup. Ct. 632, 55 L. Ed. 663) Cases, the construction so placed upon the statute by this court and the Circuit Court must be regarded as erroneous and a new trial must be granted unless the contentions of the parties are correct that, upon the facts shown, this cóurt can ñow determine the legality of the combination.

It is, however, on the one hand, impossible for us to hold as a matter of law that the acts of the defendants as disclosed upon the present record amount to a combination in unreasonable restraint of trade. And, on the other hand, we think that it would be unduly prejudicial to the plaintiffs to reverse the- judgment with instructions to dismiss the complaint. The plaintiffs presented their case in view of the decision of this court that the reasonableness of the restraint imposed was im-. material and it would be most unjust to dismiss the complaint because their proof did not conform to another standard. Upon another trial the plaintiffs may be able to produce additional testimony tending to make out a case within the Supreme Court decisions referred to. _

_ The judgment of the Circuit Court is reversed and a new trial ordered.