C-O-Two Fire Equipment Co. v. United States

197 F.2d 489 C-O-TWO FIRE EQUIPMENT CO. et al. v. UNITED STATES. No. 12964. United States Court of Appeals Ninth Circuit. May 29, 1952. Rehearing Denied Aug. 11, 1952. H. Bruce Baumeister, Hollywood, Cal., Francis R. Kirkham, William E. Mussman, Richard J. MacLaury, San Francisco, Cal. (Thorn Lord, Trenton, N.J., Pillsbury, Madison & Sutro, San Francisco, Cal., of counsel), for appellants. William C. Dixon, Sp. Asst. to the Atty. Gen., James M. McGrath, Sp. Atty., Anti-Trust Division, Department of Justice, Walter S. Binns, U.S. Atty., Los Angeles, Cal., H. G. Morison, Asst. Atty. Gen., J. Roger Wollenberg, Sp. Asst. to the Atty. Gen., for appellee. Before HEALY, BONE and POPE, Circuit Judges. BONE, Circuit Judge. 1 On June 15, 1949, an indictment was returned against four corporations and three individuals charging them with a conspiracy in violation of Section 1 of the Sherman Act, 26 Stat. 209 , as amended, 15 U.S.C.A. § 1 , 1 regarding the sale of portable carbon dioxide fire extinguishers in Southern California. 2 Three of the indicted corporate defendants- Walter Kidde & Company (hereafter called Kidde), American-La-France-Foamite Corporation (La-France), and…

On Petition for Rehearing

The petition for rehearing is denied.

(dissenting).

Upon consideration of the petition for a rehearing, and further consideration of the record, I am convinced that a rehearing should be granted. The evidence was equivocal, and the circumstances relied upon by the trial court in finding guilt, were, it now seems to me, equally consistent with innocence. I think, therefore, that there is grave question of the sufficiency of the evidence to prove guilt beyond a reasonable doubt.

It also seems to me that we did not pay sufficient attention to the evidence of substantial variation of prices during the period following the abrogation of the price-fixing provisions of the licenses and prior to the imposition of Government controls. I, for one, was too much impressed with the fact of identity of appearance of the products of the several manufacturers. As suggested in the petition for rehearing, no one has ever proposed that an inference of unlawful price-fixing arises from the identity of shovels, hoes, rakes or paint brushes. Because the opinion plows much new ground, I would invite a reargument. .

On June 15, 1949, an indictment was returned against four corporations and three individuals charging them with a conspiracy in violation of Section 1 of the Sherman Act, 26 Stat. 209 , as amended, 15 U.S.C.A. § l, 1 regarding the sale of portable carbon dioxide fire extinguishers in Southern California.

Three of the indicted corporate defendants — Walter Kidde & Company (hereafter called Kidde), American-La-France-Foamite Corporation (La-France), and General Pacific Corporation (Pacific) — and two individual defendants, entered nolo contendere pleas and were fined. Defendants-appellants C-O-Two Fire Equipment Co. (C-O-Two) and Maynard A. Laswell waived a jury, proceeded to trial, and on February 26, 1951 judgments of guilty were entered as to both. C-O-Two was fined $5,000.00 and Laswell was fined $1,000.00. Both appeal.

The indictment charged that from January, 1947 to June 15, 1949 the defendants in this action combined and conspired, in restraint of interstate trade and commerce, to fix, determine, establish and maintain non-competitive prices and terms and conditions relating to the sale of portable carbon dioxide fire extinguishers to ultimate purchasers in the Southern…