CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS BLUEFIELDS S. S. CO., Limited, v. UNITED FRUIT CO. (Circuit Court of Appeals, Third Circuit. June 26, 1917.) 1. JUDGMENT 958(1)-RULINGS AND EVIDENCE AS TO RES JUDICATA. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1827-1829.] 2. JUDGMENT 542-CONCLUSIVENESS-"RES JUdicata." The doctrine of "res judicata" means simply that a cause of action, once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot be litigated by a new proceeding, either before the same or any other tribunal. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 987. For other definitions, see Words and Phrases, First and Second Series, Res Judicata.] 8. JUDGMENT 624-RES JUDICATA-ESSENTIALS. One of the essentials of res judicata is identity of the parties to the actions. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1139.] 4. JUDGMENT 704-CONCLUSIVENESS-RES JUDICATA-PERSONS CONCLUded. A stockholder of plaintiff company, on his own behalf as well as on behalf of all other stockholders who might chose to intervene, sued defendant, joining the plaintiff corporation and others, on the ground that plaintiff had exercised an unlawful control over defendant. The suit was determined in favor of the stockholder, and the master made findings to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 243 Fed,-1 the effect that plaintiff, had been greatly damaged by defendant's control. In the original suit, both plaintiff and defendant made answer to the bill, denying its charges, but neither filed a cross-bill against the other. Held, that there was no issue raised or contested by the plaintiff or defendant, and, as they did not occupy adversary positions, the findings in such suit are not conclusive in an action by plaintiff against defendant to recover damages claimed to have been suffered on account of defendant's acts, asserted to have violated the Sherman Act. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1229.] 5. JUDGMENT ~715(2)—CONCLUSIVENESS-RES JUDICATA-IDENTITY OF ISSUES. As in the original action the relief sought was an injunction against defendant on the ground that it voted its stock in plaintiff company in violation of law and the appointment of a receiver, the matter in controversy was not identical with that in the subsequent suit, in which damages for violation of the Sherman Act were sought, and hence the findings in the original suit were not conclusive against defendant, for, had they been otherwise, plaintiff might nevertheless have subsequently maintained an action for damages. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1245.] 6. JUDGMENT 621-CONCLUSIVENESS-RES JUDICATA. No one can take advantage of a judgment or decree, if he would not have been prejudiced by it, had it been otherwise. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1139.] 7. APPEAL AND ERROR 1050(1)-REVIEW-HARMLESS ERROR. In plaintiff's action under the Sherman Act for damages for violation thereof, plaintiff, asserting that findings in a previous case to which defendant was a party were conclusive, presented that question before trial, and the court erroneously ruled that such findings were conclusive, although, when the case was actually presented, it rejected some of the findings as not being material. Held, that the erroneous admission of part of the findings was not prejudicial to plaintiff, relieving it of the burden of proving those facts. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.] 8. APPEAL AND ERROR 1071(1)-REVIEW-HARMLESS ERROR. In such case, as plaintiff did not wholly rely on the findings, but offered the testimony of witnesses to establish the facts therein found, the act of the court in changing its position and rejecting some of the findings was not prejudicial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4234.] 9. MONOPOLIES 21-ACTIONS FOR DAMAGES-DEFENSES. Where the plaintiff company allowed defendant to secure the control of its stock, and participated in the arrangement whereby defendant assumed control, plaintiff cannot, in a suit under the Sherman Act for damages alleged to have been sustained in consequence of conduct declared unlawful, recover, where it participated in and acquiesced in the unlawful conduct; the fact that plaintiff did not reap the benefits expected giving it no cause of action, and the usual rule that in torts the elements of intent to inflict injury and acquiescence in wrongs done do not enter, having no application, any more than the usual rule that in an action under the Sherman Act parties are presumed to have intended the probable consequences of their illegal agreements. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 15.] 10. MONOPOLIES 28-ACTIONS-EVIDENCE-SUFFICIENCY. In an action under the Sherman Act for damages for injuries alleged to have been sustained in consequence of conduct declared unlawful, eviFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes dence held to warrant a finding that plaintiff participated in the unlawful combination in restraint of trade and consented to defendant's acquiring a controlling interest in its stock. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 18.] 11. MONOPOLIES 21-CRIMINAL ENTERPRISES-RIGHT TO RELIEF. Where a criminal combination is made or a criminal enterprise is undertaken by two parties, and either party violates the agreement with injury to the other, the law will give the injured party no redress, but leave him in the condition it found him. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 15.] 12. MONOPOLIES 21-STOCKHOLDERS OF CORPORATIONS-Power of. Where all of the stockholders of a corporation joined in forming an unlawful combination with another corporation, and acquiesced for a long term of years in the part their company played, accepting and enjoying benefits springing from such corporation, the corporation itself is bound by their acts, and cannot subsequently assert a cause of action on the ground such acts were violations of the Sherman Act; this being true, though new and innocent parties subsequently acquired some of the corporate stock. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 15.] 13. APPEAL AND ERROR 1001(1)-REVIEW-VERDICT-EFFECT. The verdict of the jury on questions of fact, supported by evidence, is conclusive on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 39283933.] 14. LIMITATION OF ACTIONS 2(3)-WHAT LAW GOVERNS. In an action under the Sherman Act, the statute of limitations where the action is brought governs. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 7.] 15. LIMITATION OF ACTIONS 55(1)—WHAT LAW GOVERNS. Where plaintiff and its stockholders acquiesced in defendant's acquiring stock control and consented to the illegal combination, if any, making no attempt to sue plaintiff before the suit was instituted, the cause of action, which was based on the Sherman Act, must be deemed to have arisen at the time the damage occurred, there being no showing that defendant prevented a prior suit, and hence the limitation statute of Pennsylvania (Purdon's Dig. Pa. [13th Ed.] p. 2282), in which district the action was begun, was properly treated as beginning to run at the time the damage occurred. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 299.] 16. APPEAL AND ERROR 1071(2)-REVIEW-HARMLESS ERROR. In an action under the Sherman Act, begun in the district for Pennsylvania, the six-year Pennsylvania statute of limitations (Purdon's Dig. Pa. [13th Ed.] p. 2282) was applied, instead of the one-year Louisiana statute (Civ. Code La. arts. 3536, 3537), which was the law of the place where the action accrued. Act Pa. June 26, 1895 (P. L. 375), declares that, when a cause of action has been fully barred by the laws of the state or country in which it arose, such bar shall be a complete defense to a suit brought within Pennsylvania. Held, that any error in applying the Pennsylvania limitation act, instead of the shorter Louisiana act, was not prejudicial to plaintiff. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4235.] In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Action by the Bluefields Steamship Company, Limited, to the use of Elmer E. Wood, ancillary receiver, against the United Fruit Company. There was a judgment for defendant, and plaintiff brings error. Affirmed. Robert W. Childs and John S. Hummer, both of Chicago, Ill., William L. Hughes, of New Orleans, La., and Thomas F. Gain, Francis Shunk Brown, and Alexander Simpson, Jr., all of Philadelphia, Pa., for plaintiff in error. George Wharton Pepper, of Philadelphia, Pa., and Moorfield Storey and Robert G. Dodge, both of Boston, Mass., for defendant in er ror. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. WOOLLEY, Circuit Judge. This is an action brought under the seventh section of the Sherman Act (Act of July 2, 1890, c. 647, 26 Stat. 209) to recover damages for injuries alleged to have been sustained in consequence of conduct thereby forbidden and declared unlawful. The plaintiff's case may be briefly stated as follows: Before October 14, 1899, the parties to this action were active competitors in importing bananas into the United States and selling them in interstate commerce. On that date, the defendant, for the purpose of destroying competition and monopolizing the importation of bananas and controlling their distribution and price in the several states, purchased from various stockholders of the plaintiff one-half of its capital stock, and procured the voting power of one additional share. By force of the control thus obtained, the defendant dominated the affairs of the plaintiff, elected its officers, and through them directed its policy in a manner that unreasonably restrained trade and created in itself a monopoly in the banana business contrary to law. To attain this end the defendant, acting through officers of its selection, compelled the plaintiff to enter into contracts with the Fruit Dispatch Company, a corporate subsidiary of the defendant, whereby the plaintiff was required to distribute all its fruit in the manner and dispose of it at prices determined by that company, and by various acts greatly reduced the acreage and increased the cost of banana planting upon the plaintiff's plantations, sold its fruit at greatly reduced prices compared with what would have been obtained if the fruit had not been sold through the Dispatch Company, curtailed importations, increased operating expenses, wasted money in unnecessary competition, leased certain of its properties for inadequate rents to irresponsible tenants, neglected and abandoned other properties, and permitted deterioration of its shipping facilities and equipment. From all these things, the plaintiff claimed to have suffered actual damage to the amount of five million dollars, to be trebled by the provision of the Sherman Act. Stated generally, the plaintiff's principal claim of damage was the loss of profits which it would have made if it had been allowed to continue its business in competition with the defendant. For defense the defendant offered evidence tending to prove that no injury had been inflicted upon the plaintiff by anything it had done or had permitted to be done, but, that, on the contrary, its control had been to the plaintiff's financial advantage; that if it inflicted any injury upon the plaintiff it was done without intent to injure; and that the conduct of its control and its management of the plaintiff's properties and the marketing of its product through the channels employed were pursued according to the terms and within the spirit of contracts sought by all the plaintiff's stockholders and entered into between the defendant and all the plaintiff's stockholders (save one), in which contracts the plaintiff corporation actively participated and all its stockholders (including this one) freely acquiesced through a long period of years, so that, the defendant maintained, if its conduct be found to offend the provisions of the Sherman Act, then the plaintiff was in pari delicto and was without right to recover. The defendant further pleaded the statute of limitations. The jury rendered a verdict for the defendant; on the judgment entered, the plaintiff sued out this writ of error. This trial, covering a period of forty-five days, produced a record of unusual length. Eighty-four errors are assigned. While some of the assignments bear upon separate and unrelated matters, it has been possible, with the assistance of counsel, to so group the most of them, that the substantial questions may be considered and determined upon broad principles of law. Before we approach the trial and follow its trend, we shall dispose of a number of assignments of error arising out of certain action which the court took before trial. [1] In addition to testimony from witnesses to be produced at the trial, the plaintiff proposed to prove its case by introducing the findings of a master in the case of Steele v. United Fruit Company et al., heard and decided in the Circuit Court of the United States for the Eastern District of Louisiana (190 Fed. 631) and affirmed by the Circuit Court of Appeals for the Fifth Circuit (194 Fed. 1023, 114 C. C. A. 666). That was an action against the United Fruit Company and others, instituted by a stockholder of the plaintiff, and concerned the defendant's stock control over the plaintiff. The findings recited in detail the manner of its acquisition and exercise. The plaintiff conceived that many of the facts upon which the decree in that case was based would sustain a judgment in this case, and therefore their submission and determination in that case constituted res judicata in this case. If that were so, then manifestly the plaintiff would have the great advantage of being relieved of the necessity of proving here what had there been judicially determined, and the defendant would have the corresponding disadvantage of being concluded thereby. So in order to ascertain before trial what the court would decide at trial as to whether and to what extent the findings in the Steele Case were res judicata of the issues in this case, the plain |