Ball v. Paramount Pictures Inc‪.‬

MCLAUGHLIN, C.J.: This is a conspiracy suit under the Sherman and Clayton Acts.1 Plaintiff-appellant is the owner and operator of the Penn motion picture theatre in Ambridge, Pennsylvania. The defendants-appellees are Pennware Theatre Corporation, formerly lessee of the Penn Theatre and later owner and operator of the State Theatre, also in Ambridge; A. N. Notopoulos and Paramount Pictures, Inc., each owning fifty per cent of the Pennware stock; R.K.O. Radio Pictures, Inc., Loew's, Inc., Twentieth Century-Fox Film Corporation and Paramount Film Distributing Corporation, producers, distributors and exhibitors of motion pictures. It is alleged that the appellees conspired to deprive the Penn Theatre of showing first run pictures as it had been doing for some years previously. The case was partly heard below by Judge Schoonmaker, who died before the case was completed. The trial was finished before the succeeding Judge under a stipulation which provided that ""all proceedings before Judge Schoonmaker * * * shall be deemed to have been before such assigned Judge."" The succeeding judge found no conspiracy. This appeal is from his decree dismissing the complaint. Appellees urge that under Rule 52 of the Federal Rules of Civil Procedure we should not set aside the findings of fact of the court below unless clearly erroneous. The same rule provides that ""due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses * * *"", but it is to be remembered half the witnesses, presenting the main portion of plaintiff's case, had been heard by Judge Schoonmaker. Nor does the rule operate ""to entrench with like finality the inferences or conclusions drawn by the trial court from its fact findings."" Kuhn v. Princess Lida of Thurn and Taxis, 3 Cir., 119 F.2d 704, 705. Finally, if the mass buying power of appellees2 was unlawfully employed, then, under the particular facts, the findings were not only inadequate but erroneous. United States v. Griffith, - U.S. -, opinion filed May 3, 1948, pp. 9, 10, slip opinion.