the fact of damage is shown, and in the absence of proof of greater damage, be presumed to be the pecuniary amount or equivalent of the prohibited discrimination, payment, or grant involved in such violation * * *.'
This provision was stricken before the Bill was enacted. In Elizabeth Arden Sales Corporation v. Gus Blass Co., 8 Cir., 1945, 150 F.2d 988, the court stated that this provision would be significant in cases where only special damages can possibly exist and the effect of the omission would be to require that the amount of such damages must specially be proved.
The court held that there was a general damage right under § 2(d) and (e) of the Act and that the provision, even if enacted, would not have affected these sections. However, in a later case involving § 2(a), (b) and (e) of the Act, the same Circuit held that a plaintiff must not only show price discrimination but must also prove that the wrong done proximately resulted in ascertainable damage to its business and property.
The Second Circuit, in a case involving § 2(a) and (b), has also rejected the contention that the difference between plaintiffs' cost and the cost to those in whose favor defendant had been discriminatory should be the necessary 'measure of damages.' Enterprise Industries v. Texas Company, 2 Cir., 1957, 240 F.2d 457, 459, 460.
The trial judge pointed out to the jury the exhibits showing the amounts of the terminal charges paid by plaintiffs and its verdict that such plaintiffs suffered no damages may not be set aside on the ground that plaintiffs are entitled to recover such charges as a matter of law, even if the record requires an affirmative answer to question 1.
In Hanover Shoe, Inc. v. United Shoe Machinery Corp., D.C.M.D.Pa. 1960, 185 F.Supp. 826, affirmed 3 Cir., 1960, 281 F.2d 481, which involved a cause of action under the Clayton Act (15 U.S.C.A. § 15), the defendant contended that it was relieved from liability because the losses sustained by plaintiff because of defendant's violation of the Act were passed on to plaintiff's customers. The argument was rejected by the trial judge, the court holding that, where plaintiff is a consumer of the product, rather than a Middleman who resells it, he may recover the excess paid, whether or not he has ultimately passed the excess along to his customers. The 'oil jobber' cases were specifically analyzed and distinguished by Judge Goodrich in his opinion.
A later case in this District concerning the Clayton Act (15 U.S.C.A. § 15) and Sherman Act (15 U.S.C.A. § 2) stated: 'More recent decisions, however, have held with unanimity that a pecuniary loss is essential to recovery in an anti-trust treble damage action.' Delaware Valley Mar. Sup. Co. v. American Tobacco Co., D.C.E.D.Pa.1960, 184 F.Supp. 440, 449.
The present case is more analogous to the 'oil jobber' cases
than to any others cited. Plaintiffs had no automatic right to recover the terminal charges without proof of loss, even if a violation of the Robinson-Patman Act had been found to have existed.
II. Motion For New Trial
Neither at the conclusion of the charge nor in their brief do plaintiffs allege any errors in the portion of the charge covering damages (N.T. 1343-1350), except for the contentions rejected above, namely, (a) that plaintiffs are entitled to recover the amount of the terminal charges as 'special' damages as a matter of law (N.T. 1353), and (b) the fact that plaintiffs collected the amount of these charges from their customers was not a proper consideration in determining the amount, if any, of their damages (N.T. 1359).
The charge specifically called the jury's attention to the exhibit (PT-7A) showing the amount of the terminal charges paid by plaintiffs (N.T. 1344), as well as six other exhibits (N.T. 1347) bearing on the issue of whether plaintiffs had suffered any injury in their business or property. Additional exhibits were called to the jury's attention in discussing question 3 (N.T. 1348-1350 and 1358).
The language of the charge presents no ground for a new trial and there is sufficient evidence to support the jury's answers to questions 2 and 3.
See F.R.Civ.P. 61, 28 U.S.C.A. and Lind v. Schenley Industries, Inc., 3 Cir., 1960, 278 F.2d 79.
In view of the pending claims of many other plaintiffs and the Hanover Shoe case, supra, this is an appropriate case for the certification that the order denying these post-trial motions 'involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.' See 28 U.S.C.A. § 1292(b).
And Now, May 3, 1961, It Is Ordered that plaintiffs' Alternative Motion for Judgment Notwithstanding the Verdict or New Trial (Document No. 70) is Denied, and it is certified that this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation (28 U.S.C.A. § 1292(b)).