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November 17, 1952


The opinion of the court was delivered by: KNIGHT

Defendant General Railway Signal Company has moved for a summary judgment in its favor as matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that there is no genuine issue as to any material fact.

For convenience, General Railway Signal Company will be referred to as 'General'; Westinghouse Air Brake Corporation as 'Union' (Union Switch & Signal Company having changed its name and finally become Union Switch and Signal Division of Westinghouse Air Brake Corporation), and Western Railroad Supply Company as 'Western'. Railroad Accessories Company seems to have licensed certain patents to Railroad Supply Company. Railroad Supply Company appears to have become bankrupt, its assets purchased by General and General having sold the accessories portion of the bankrupt estate to Western.

 The motion is based on the affidavits of H. W. Chamberlain, Neil D. Preston, Stanley E. Gillespie and Paul Renshaw filed with the moving papers on September 23, 1952, and a supplementary affidavit of H. W. Chamberlain filed at the close of the more than two hour argument of the motion on October 14, 1952.

 Plaintiff filed the affidavit of Donald P. McHugh, its counsel, on the date of the argument.

 Movant and plaintiff each filed briefs at the close of the argument, and thereafter supplemental briefs were filed by movant on October 21, 1952, and by plaintiff on October 27, 1952. The matter was thereupon submitted.

 Violation of the Sherman Act, 15 U.S.C.A. ยงยง 1 and 2, by a 'combination and conspiracy in restraint of, in a combination and conspiracy to monopolize, in an attempt to monopolize and in monopolization' of interstate trade and commerce in grade crossing devices seems to have been alleged in the complaint filed April 2, 1952. Nothing was done by movant to attack the complaint for insufficiency. On August 27, 1952, movant filed its answer which, in effect, put in issue every essential allegation of the complaint and further alleged 'other defenses' in amplification of its previous denials and as justification of its contention that it had not violated the provisions of the Sherman Act.

 The affidavits filed by movant are in great detail, with voluminous exhibits attached. By its briefs filed and the oral argument had, movant seems to have exhausted every possible reason for the granting of its motion. Plaintiff has to rely upon its discovery from whatever source it may come for its cause of action for conspiracy to monopolize trade in violation of the Sherman Act. Generally, in anti-trust violations, the only source of evidence open to the plaintiff must come from the defendants, and from their acts, conduct, speech, writings and documents. To the McHugh affidavit are attached photostatic copies of papers obtained from the files of the defendants and they are offered as evidence of the existence of a genuine issue of material facts. During the oral argument movant's counsel suggested that the exhibits so offered were hearsay and not properly before the Court. The Court for the purpose of the motion accepts the source and validity of the exhibits as stated in the plaintiff's affidavit. There is no denial or attack by any affidavit filed by movant as to the correctness of those exhibits or as to the propriety of their possession by plaintiff. It appears from the McHugh affidavit that those exhibits were either copies delivered voluntarily to plaintiff or the government agents were voluntarily permitted by defendants to 'make photostatic copies thereof.' Upon a trial, of course, the proof of their source would be made and the surrounding circumstances would be related by witnesses having actual knowledge of the facts. This is not a trial.

 Where the matters are so involved as they are here, it is possible that affiants may not have been called upon to give information in some instances within their particular knowledge, while others may properly deny knowledge to a pertinent matter. Only by examination of the witnesses at a trial may such information be gleaned. Radio City Music Hall Corp. v. United States, 2 Cir., 135 F.2d 715; Bucky v. Sebo, D.C., 97 F.Supp. 277, 279; Garner v. Triangle publications, D.C., 97 F.Supp. 546; Shultz v. M & T Trust Co., D.C.W.D.N.Y.1940, 1 F.R.D. 451. The Court should not be in haste to grant summary judgment. Unless there exists a genuine issue of a material fact, it would be wasteful to deny such a motion. Hoffman v. Partridge, 84 U.S.App.D.C. 224, 172 F.2d 275; Whitaker v. Coleman, 5 Cir., 115 F.2d 305; Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101, 105-106; Swift & Co. v. United States, 196 U.S. 375, 25 S. Ct. 276, 49 L. Ed. 518.

 Plaintiff has not relied exclusively upon the allegations of the complaint but has presented the affidavit of Mr. HcHugh with its several exhibits attached, many of which need to be explained. For instance, in the affidavit of Paul Renshaw on behalf of movant, the following statement appears:

'General has never had any agreement, understanding, or other relation or transaction, with Union or any other person or party, concerning the creation of Western, or concerning any aspect of the business or management of Western. General has never entered into any agreement or understanding with Western, Union or any other person or party which restricts, controls or allocates in any way the manufacture or sale by General or by any other person or party, of any highway crossing protective device, or any component part thereof.'

 A confirming statement appears in the supporting affidavit of H. W. Chamberlain.

 Movant asserts that there is no dispute as to the evidentiary facts and that the only inference which can be drawn by the Court from the facts is that movant has never been a party to any conspiracy and is entitled to summary judgment in its favor. Despite such contention by movant, the affidavits and briefs filed and the oral arguments of plaintiff and movant are replete with allegations, statements and discussion to the contrary.

 It was held in United States v. Bausch & Lomb Optical Co., D.C.S.D.N.Y., 3 F.R.D. 331, 334, Leibell, J., writing:

'* * * agreements legal on their face, may be used as part of an unlawful conspiracy to violate the provisions of the Sherman Anti-Trust Act. But to so hold requires an inquiry into relevant facts as to the real ...

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