Full opinion text
BLAND, Judge, and GARRETT, Judge: The instant equity action was instituted by the Government in the District Court of the United States for the District of Columbia by complaint on August 15, 1940. The Government seeks, among other things, to obtain a judgment against the defendants enjoining them from certain alleged monopolistic practices and relationships in connection with trade and commerce in gypsum products between the states and the District of Columbia under sections 1, 2, and 3 of the Sherman AntiTrust Act, 15 U.S.C.A. §§ 1-3. In a criminal action in said District Court, under an indictment returned June 28, 1940, the Government prosecuted the defendants under sections 1 and 3 of said Act. The pleadings in that case alleged a conspiracy to monopolize and restrain trade and commerce in certain gypsum products. On November 19, 1941, the trial judge sustained the motions of defendants for a directed verdict of not guilty. Judgment was entered accordingly. The defendants, in this court, have moved, under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for summary judgment upon the ground that in said criminal action, where it is urged that the parties and issues were substantially the same as those at bar, a judgment for defendants was obtained which is res judicata of the issues in the instant case and should be held by us to be a bar against the further prosecution of the instant action. The motions have been argued and briefed at great length by both parties on three phases of the question: first, are the parties the same or substantially the same?; second, are the issues the same?; and third, was the judgment based on the trial judge’s instruction made pursuant to defendants’ motions for directed verdict in the nature of a demurrer to the evidence. It is our view that if in the criminal case there had been an acquittal by the jury and a judgment rendered thereon, that judgment would not be res judicata of the issues in the instant case. This conclusion is amply supported by the following decisions : Helvering v. Mitchell, 1938, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; Murphy v. United States, 1926, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446; Lewis v. Frick, 1914, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; Stone v. United States, 1897, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; and United States v. Donaldson-Shultz Co., 4 Cir., 1906, 148 F. 581. It is unnecessary, therefore, for us to express any view as to whether, for the purposes of this case, the parties and issues are the same, because even if they are, under the decisions above set out the judgment in the criminal case would not be res judicata of the issues in this civil proceeding. Nor is it necessary for us to make any holding with respect to the nature of the peremptory instruction given by the trial judge, since the question relating to whether defendants’ motions for directed vei'dict were in the nature of a demurrer to the evidence has to do only with the question of whether or not there was an adjudication in that proceeding. As hereinbefore stated, if there had been such an adjudication as would have resulted from a judgment entered on a verdict of not guilty found by a jury on the merits, the doctrine of x-es judicata would not apply in the instant case. The reasons why the doctrine does not apply in this kind of action are clearly expressed in a number of decided cases. For instance, the quantum of proof in a criminal case is wholly different from that required in a civil proceeding. Defendants may be required to testify in a civil proceeding but not in a criminal proceeding. Moreover, the most impelling reason, in our judgment, why res judicata does not apply in this case is that it is clear from the context of the Sherman Act that such a doctrine was never meant to apply. As the Supreme Court has said, it was the intention of Congress in providing for a criminal proceeding, an equity proceeding, and a suit by a damaged individual — all in one act — that concurrent remedies were to be afforded. Standard Sanitary Mfg. Co. v. United States, 1912, 226 U.S. 20, 33 S. Ct. 9, 57 L.Ed. 107. Under such circumstances it would seem clear that a judgment in one action would not be a bar to obtaining a judgment in the others. It seems to us that it would be wholly illogical to conclude that one charged with a violation of the Sherman Act could, by reason of an acquittal in a criminal case, thereby obtain immunity from any further remedy designed to bring about the discontinuance of a continuing offense. While there is no decided case involving facts identical with those at bar, it seems to us that the principles in the above-cited cases amply justify the conclusion that in cases like that at bar a full adjudication in a criminal action between the same parties and involving the same conspiracy would not be a bar in a subsequent civil action for injunctive relief. In Murphy v. United States, supra, the defendant was acquitted of a charge of maintaining a nuisance and subsequently, in an equity action, was enjoined from occupying the place. The statute there, as here, contemplated both kinds of action, and the holding was that the second suit was not barred by the acquittal in the criminal action. Reasons for such conclusion were therein fully stated, and the doctrines laid down in Stone v. United States, supra, and Chantangco v. Abaroa, 1910, 218 U.S. 476, 31 S.Ct. 34, 54 L.Ed. 1116, were again relied upon and fully stated. Defendants’ said motions for summary judgment are denied. STEPHENS, J.: I agree that the motions for summary judgment must be denied. But I do not agree with the views according to which my brothers reach this result, and I desire to state my own views separately. The importance of the motions warrants, I think, discussion of each of the questions raised thereunder. The instant civil action, commenced by the United States (hereinafter for convenience referred to as the Government) August 15, 1940, seeks equitable relief under Section 4 of the Sherman Act. The complaint charges that the defendants for many years were parties to contracts, including patent license agreements, and were actively engaged in a continuing combination and conspiracy, in restraint of trade and commerce, and that they have monopolized trade and commerce, in gypsum products in violation of Sections 1, 2 and 3 of the Sherman Act. The relief sought is a decree that the contracts, combination, conspiracy and monopoly are illegal and that the defendants have been parties thereto; that the defendants be enjoined from continuing to carry out the contracts, combination, conspiracy and monopoly; that they be required to cancel the provisions of the license agreements and enjoined from entering into any such agreements in the future and from bringing any actions for infringement of patents, or to collect royalties or license fees or profits for the use of patents now owned or controlled by them relating to gypsum products or relating to any process or machine used in connection with the Dame, until it is made to appear that all improper practices have been abandoned and the consequences of all misuses of the patents have been dissipated; that the defendants be enjoined from entering into any license agreement relating to gypsum products without obtaining the consent of the court; the prayer includes also a request for general relief. The present motions for summary judgment, made under Rule 56 of the Federal Rules of Civil Procedure providing for such a judgment if the pleadings, depositions, admissions and affidavits on file in 1 civil case show that (except as to tl..e amount of damages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, are based upon pleas of res judicata embodied in two separate affirmative defenses. These are set forth in supplemental answers to the Government’s complaint. From these answers and from affidavits supporting the same, it appears that prior to the filing of the complaint five of the seven corporate defendants and two of the individual defendants named therein had been indicted by a grand jury for a combination and' conspiracy to violate the antitrust laws and put to trial, but that at the close of the Government’s case the defendants filed motions for a directed verdict and that the trial judge granted the same. The indictment is made a part of the supplemental answers. All of the foregoing is without dispute. It is contended by the defendants that comparison of the indictment with the complaint discloses, as a matter of law, that the causes of action in the two cases are the same, and it is urged that therefore the decision of the first case, adverse to the Government, forecloses, under the doctrine of res judicata, trial of the second. This is the first affirmative defense. In the alternative it is contended that, if the causes of action are different, the issues in the two cases are the same and hence cannot be relitigated in the instant civil suit. This is the second affirmative defense. For reasons which will be outlined later the Government opposes the motions for summary judgment. Greater detail of facts, as they appear from the complaint, the supplemental answers, the affidavits, and the indictment, will be stated below as necessary to discussion of particular topics. At the outset certain elementary principles are to be borne in mind. I. The basis of the doctrine of res judicata has been well stated as follows: “The doctrine of res judicata may be said, to inhere in the legal systems of all civilized nations as an obvious rule of expediency, justice, and public tranquillity. Public policy and the interest of litigants alike require that there be an end to litigation which, without the doctrine of res judicata, would be .endless. The doctrine . . . rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. The doctrine of res judicata not only puts an end to strife, but produces certainty as to individual rights and gives dignity and respect to judicial proceedings. It is considered that a judgment presents evidence of the facts of so high a nature that nothing which could be proved by evidence aliunde would be sufficient to overcome it; and therefore it would be useless for a party against whom it can be properly applied to adduce any such evidence, and accordingly he is estopped or precluded by law from doing so. . . [30 Am.Jur., Judgments, §165] The operation of the doctrine is well settled. A judgment in one action is a bar or estoppel against the prosecution of a second action between the same parties upon the same cause, and is a finality concluding parties, and privies, not only as to every matter which was offered or received to sustain or defeat the cause but also as to any other admissible matter which might have been offered or received. If the second action is upon a different claim or demand, then the judgment in the first acts as a bar only as to issues involved in both. Cromwell v. County of Sac, 1876, 94 U.S. 351, 24 L.Ed. 195. But the decision of an issue is a finality concluding parties and privies not only as to every matter which was offered or received to sustain or defeat that issue but also as to any other admissible matter which might have been offered or received. 2 Black on Judgments (2d ed. 1902) § 609, page 924; Southern Pacific Railroad v. United States, 1897, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355. The doctrine of res judicata is applicable in successive criminal cases. United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, 3 L.R.A. 516. It is also applicable in a civil action where a prior criminal decision between the same parties has been adverse to the defendant on a question of fact. Local 167 v. United States, 1934, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804. If a court has once decided that the facts charged in a given case do not as a matter of law constitute a cause of action, no mere change in the form of the remedy pursued can alter that determination. Werlein v. New Orleans, 1900, 177 U.S. 390, 20 S.Ct. 682, 44 L.Ed. 817; Stoll v. Gottlieb, 1938, 305 U.S. 165,. 59 S.Ct. 134, 83 L.Ed. 104. The statement to the contrary in United States v. Schneider, C.C.D. Or., 1888, 35 F. 107, is in conflict with these two decisions; and Ash Sheep Co. v. United States, 1920, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507, cited to the contrary, is distinguishable. Moreover, decision of a criminal case against the Government by virtue of the application of principles of law to admitted facts will foreclose, under the doctrine of res judicata, relitigation of the same cause between the same parties not only in a subsequent criminal suit, United States v. Oppenheimer, supra, but also in a subsequent civil suit, see United States v. Salen, S.D. N.Y., 1917, 244 F. 296. Absent a violation of law in the facts charged in a criminal case there is no foundation for a subsequent civil suit. If there is no wrong there is nothing upon which to proceed either criminally or civilly. A contrary view would afford a plaintiff two opportunities to obtain a favorable ruling on admitted facts — directly in the teeth of the reasons underlying the doctrine of res judicata. A decision that admitted facts constitute no cause of action recognized by law is, of course, a final judicial disposition on the merits. Oscanyan v. Arms Co., 1880, 103 U.S. 261, 26 L.Ed. 539; United States v. Salen, supra. But decision of a criminal case by acquittal after submission to a jury upon the merits will not foreclose, under the doctrine of res judicata, re-litigation of the same cause between the same parties in a subsequent civil proceeding. This is for the reason that iru criminal cases a higher standard of proof, i. e., proof beyond a reasonable doubt, is requisite to conviction than is necessary in civil cases where proof by mere preponderance of the evidence is sufficient for a plaintiff’s judgment, and for the further reason that in criminal cases, as distinguished from civil, proof-of criminal intent is necessary. Helvering v. Mitchell, 1938, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917; Murphy v. United States, 1926, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446; Lewis v. Frick, 1914, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; Stone v. United States, 1897, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127; United States v. Donaldson-Shultz Co., 4 Cir., 1906, 148 F. 581. Coffey v. United States, 1886, 116 U.S. 427, 6 S.Ct. 432, 29 L.Ed. 681, to the contrary has in effect been overruled by Helvering v. Mitchell and Stone v. United States. An additional reason why an acquittal in a criminal case, after submission to a jury upon the merits, will not bar a subsequent civil suit between the same parties on the same cause is that in a civil suit a plaintiff has greater access than in a criminal case to evidence, through depositions and discovery, and to witnesses, since in a civil case the defendant may be required to testify (except where his answers to questions would be self-incriminating), as a result of which, again, a plaintiff may prevail in a civil action although the same cause pursued in the criminal proceeding against the same defendant failed. The absence of a right to an appeal from an adverse decision does not forbid application in a subsequent suit on the same cause between the same parties of the doctrine of res judicata. Johnson Company v. Wharton, 1894, 152 U.S. 252, 14 S.Ct. 608, 38 L.Ed. 429. Equally, the fact that the first case may have been erroneously decided is no obstacle to the application of the docvrine. United States v. Moser, 1924, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262; United States v. Oppenheimer, supra; Straus v. American Publishers’ Ass’n, 2 Cir., 1912, 201 F. 306. It is contended by the Government that the doctrine of res judicata is not applicable where its operation would “limit the effectiveness” of a Federal statute and that this is true in respect of the antitrust laws. The cases cited by the Government to support the contention do not do so, and there is no authority to support it. Apex Hosiery Co. v. Leader, 1940, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044, and Appalachian Coals, Inc. v. United States,. 1933, 288 U.S. 344, 53 S.Ct. 471, 77 L.Ed. 825, merely state the general purposes and policies underlying the Sherman Act. In Stone v. United States, supra, and United States v. Donaldson-Shultz Co., supra, the courts in a civil suit rejected a plea of res judicata based upon an acquittal in a prior criminal action because, as pointed out above, of the higher degree of proof required in a criminal case, and the necessity of establishing in such a case the element of criminal intent, and this is the theory of the decisions in Helvering v. Mitchell, Murphy v. United States, and Lewis v. Frick, supra, and Chantangco v. Abaroa, 1910, 218 U.S. 476, 31 S.Ct. 34, 54 L.Ed. 1116. Sola Electric Co. v. Jefferson Electric Co., 1942, 317 U.S. 173, 63 S.Ct. 172, 87 L.Ed. -, decides merely that in a suit between private parties involving the validity of a patent under which a license has been granted, the licensee is not forbidden by local rules of estoppel to attack the validity of the patent, Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, not applying in such a situation. The case does not involve, nor did it discuss, the doctrine of res judicata — which is recognized generally in the Federal courts as well as locally. Standard Sanitary Mfg. Co. v. United States, 1912, 226 U.S. 20, 33 S.Ct. 9, 57 L.Ed. 107, holds merely, so far as the contention under immediate discussion is concerned, that successive or simultaneous actions, criminal and civil, may be brought under the antitrust laws and that the order of trial of such actions is a matter for the discretion of the trial court. It involves no question of res judicata. It is the contention of the defendants that within the principles above set forth they are entitled to prevail under the motions for summary judgment. They urge that the causes of action in the criminal case and the instant case are the same, despite the difference in remedy sought by the Government in the two cases, that the lack of complete mutuality of parties is not an obstacle, and that the nature of the disposition of the criminal case was such as to make inapplicable the rule that the doctrine of res judicata will not operate in a civil suit where the plea of res judicata is based upon acquittal by a jury in a criminal proceeding. The Government controverts all of these positions. Discussion of these questions follows. II. Since a judgment in one action is a bar against the prosecution of a second suit between the same parties only if the causes of action in the two cases are the same, the question whether the causes of action in the instant case and the criminal case are the same must next be answered. Comparison of the indictment in the criminal case and of the complaint in the instant case discloses the following similarities in allegations: (a) Each charges a continuing combination and conspiracy to restrain trade and commerce in violation of Sections 1 and 3 of the Sherman Act. (b) Each charges that the combination and conspiracy involved gypsum board, including lath, plasterboard and wallboard (hereinafter referred to merely as gypsum board), (c) Each charges that the combination and conspiracy involved the manufacture and sale of substantially 100% of the gypsum board manufactured and sold in the United States east of the Rocky Mountains, (d) Each charges the combination and conspiracy to have been carried out over substantially the same area, i. e., the area east of the Rocky Mountains, including the District of Columbia, (e) Each charges the combination and conspiracy to have been carried out over substantially the same period of time — 1929 to the date of the indictment (June 28, 1940) in the criminal case, 1929 to the date of filing the complaint (August 15, 1940) in the civil case. (f) Each charges use of the same basic media for effectuating the combination and conspiracy, to wit, the license agreements of 1929 and 1930 fixing licensee prices for manufacturers, and fixing conditions of sale for such licensee manufacturers as a means of controlling distributors’ resale prices. (g) Each charges the fixing of resale prices of manufacturing distributors. (h) Each charges, as a means of enforcing the combination and conspiracy, the policing of sales and the refusal of sales to those who would not abide price schedules. ’ (i) Each charges the elimination of jobbers. (j) Each describes the combination and conspiracy as having been intentionally carried out. (k) Five corporations (United States Gypsum Company, National Gypsum Company, Certain-teed Products Corporation, Ebsary Gypsum Company, Inc., and Newark Plaster Company) and two individuals (Oliver M. Knode and Melvin H. Baker) are common to the indictment and complaint as defendants. Also both the indictment and the complaint name as manufacturers of gypsum board alleged to have been co-conspirators in the combination and conspiracy common corporate persons (some of whom are named defendants and some riot) as follows: Indictment United States Gypsum Company (defendant) National Gypsum Company (defendant) Certain-teed Products Corporation (defendant) The American Gypsum Company I Ebsary. Gypsum Company, Inc. (defendant) Kelley Plasterboard Company, Inc. Newark Plaster Company (defendant) Universal Gypsum & Lime Company Atlantic Gypsum Products Company Texas Cement Plaster Company Complaint in Equity United States Gypsum Company (defendant) National Gypsum Company (defendant) Certain-teed Products Corporation (defendant) The American Gypsum Company The Celotex Corporation (defendant) (which acquired The American Gypsum Company) Ebsary Gypsum Company, Inc. (defendant) Kelley Plasterboard Company, Inc. Newark Plaster Company (defendant) Universal Gypsum & Lime Company Atlantic Gypsum Products Company Texas Cement Plaster Company (defendant) It will be noted that identity in these last named persons is complete except for The Celotex Corporation (which acquired The American Gypsum Company). Still further, both the indictment and the complaint name as manufacturing distributors whose resale prices are alleged to have been controlled pursuant to the combination and conspiracy, the following: Indictment Alleged to have been co-conspirators on resale prices’. Structural Gypsum Corporation American Cyanamid & Chemical Corporation Connecticut Adamant .Plaster Company Oakfield Gypsum Products Corporation The Calvin Tomkins Company Grand Rapids Plaster Company Michigan Gypsum Company The Alabastine Company Wasen Plaster Company Complaint in Equity — Bill of Particulars Alleged to have agreed on resale prices’. Structural. Gypsum Corporation American Cyanamid & Chemical Corporation Connecticut Adamant Plaster Company Oakfield Gypsum Products Corporation The Calvin Tomkins Company Grand Rapids Plaster Company Michigan Gypsum Company The Alabastine Company Wasen Plaster Company The indictment and complaint disclose also certain differences : (a) The indictment charges a combination and conspiracy in restraint of trade in violation of Sections 1 and 3 of the Sherman Act, whereas the complaint charges also a contract in restraint of trade in violation of Section 1. (b) The indictment charges violation of Sections 1 and 3 only of the Sherman Act, whereas the complaint charges also a violation of the monopoly provisions of Section 2. (c) The indictment describes as the subject of the conspiracy the manufacture and sale of gypsum board, whereas the complaint adds also gypsum plaster, tile, cement, perforated lath and metallized lath, (d) The indictment limits its charge of illegality to commerce in such gypsum board as was sold by the defendants through jobbers and manufacturing distributors, asserted to have comprised less than 5% of the total of the defendants’ commerce in gypsum board, whereas the charge of illegality in the complaint concerns also commerce in gypsum board sold by the manufacturers, i.e., the defendants themselves. (e) The complaint charges not only the fixing of resale prices of manufacturing distributors and the elimination of jobbers, as does the indictment as above explained, but also three additional consequences of (or means of effectuating) the conspiracy, to wit, concertedly raising and fixing at arbitrary and non-competitive levels the prices of gypsum board manufactured and sold by the defendants themselves in the eastern area, concertedly standardizing gypsum board and its method of production with the effect of eliminating competition, and concertedly raising, maintaining and stabilizing the general level of prices for plaster and miscellaneous gypsum products, (f) The indictment does not question the legality of the license agreements of 1929 and 1930, whereas the complaint charges that the conditions fixed in the agreements are not within the limits permitted to patentees and their licensees in United States v. General Electric Company, 1926, 272 U. S. 476, 47 S.Ct. 192, 71 L.Ed. 362. (g) The indictment does not challenge the validity of the patents upon which the license agreements are based, whereas the complaint does, (h) The complaint names two corporate defendants (The Celotex Corporation and the Texas Cement Plaster Company) and five individual defendants (Sewell L. Avery, Henry J. Hartley, Bror G. Dahlberg, Frederick G. Ebsary and Frederick Tomkins) not named as defendants in the indictment, and The Celotex Corporation is not named in the indictment even as a co-conspirator, although The American Gypsum Company, which it acquired, is so named. Still further, as noted above in footnote 13, the indictment names as manufacturing distributors whose resale prices are alleged to have been controlled pursuant to the combination and conspiracy three persons (Mathieson Alkali Works, Inc., Wallboard Wholesalers, Inc., and Plastergon Wallboard Company) not named in the complaint, (i) The purpose of the indictment is punitive, whereas the prayer of the complaint is for restraint. The conventional test to determine whether two causes are the same is — will the same evidence support both; if it will, the two causes are the same, otherwise not. Stone v. United States, 9 Cir., 1894, 64 F. 667, 671, quoting from 1 Freeman on Judgments § 259; 2 Black on Judgments (2d ed. 1902) § 726, page 1089. But by cause of action for the purpose of this test of identity is meant the same in gist or material elements. As said in Baltimore S. S. Co. v. Phillips, 1927, 274 U.S. 316, 321, 47 S.Ct. 600, 71 L.Ed. 1069: “The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.” To the same effect see United States v. California & Oregon Land Co., 1904, 192 U.S. 355, 24 S.Ct. 266, 48 L.Ed. 476; Werlein v. New Orleans, supra; McKnight v. Minneapolis St. R. Co., 1914, 127 Minn. 207, 149 N.W. 131, L.R.A.1916D, 1164. While allegation of a purpose to commit and of the actual commission of one or more overt acts may tend to characterize a conspiracy as having existed at some given time or place, overt acts are not vital parts of a conspiracy to violate the antitrust laws. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 224-226, 60 S.Ct. 811, 84 L.Ed. 1129; Nash v. United States, 1913, 229 U.S. 373, 378, 33 S.Ct. 780, 57 L.Ed. 1232. As said in the latter case, wherein an indictment charging a conspiracy to restrain trade by means of depressing prices, underselling competitors for the purpose of forcing them out of business, and the like, was demurred to upon the ground that no overt acts were charged: “Coming next to the objection that no overt act is laid, the answer is that the Sherman Act punishes the conspiracies at which it is aimed on the common law footing — that is to say, it does not make the doing of any act other than the act of conspiring a condition of liability. . . It follows that causes of action for conspiracy proceeded upon in two different suits may be legally identical despite the fact that the allegations of the complaints in the two cases are not strictly duplicate. As was said in United States v. Meyerson, S.D. N.Y.,1928, 24 F.2d 855, 857: “Nor can the effect of the former adjudication of acquittal be avoided by adding new elements to the old scheme, and thus broadening the charge of conspiracy. . . .” This is explained with greater particularity below. Even different (in the sense of overlapping) periods of time over which conspiracies described in two different cases are alleged to have operated may be charged, Straus v. American Publishers’ Ass’n, supra, or both different (in the sense of overlapping) areas and periods of time, Powe v. United States, 5 Cir., 1926, 11 F.2d 598, 599-600, and yet the two causes of action be the same. It is true that under the Sherman Act a monopoly, as described in Section 2; is a different offense from a contract, combination or conspiracy in restraint of trade as described in Section 1. United States v. MacAndrews & Forbes Co., C.C.S.D.N.Y.1907, 149 F. 836. It is also true that a monopoly may be separate from a conspiracy to monopolize, United States v. Shapiro, 2 Cir., 1939, 103 F.2d 775, 776, and that more than one conspiracy may arise out of a given transaction between a variety of parties, Interstate Circuit v. United States, 1939, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610. Nevertheless, it does not necessarily follow from the fact that several different crimes are alleged to have resulted from concerted action by a plurality of defendants that more than a single conspiracy is charged. Braverman v. United States, 1942, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed.-. Therefore the fact that in one complaint the defendants are charged with having conspired to commit several crimes, while in another the same defendants are charged to have conspired to commit the same crimes plus one or more others, does not necessarily render the causes of action stated in each of the two cases different. It is true that usually the cause of action in a criminal case involves an element of intent not ordinarily involved in a civil cause, and, as said above, this has been held so to differentiate a criminal from a civil cause, both based upon the same act, as to make inappropriate application of the doctrine of res judicata where an acquittal in a criminal case is pleaded in bar of a subsequent civil suit. Helvering v. Mitchell and companion cases cited supra. But this difference between civil and criminal causes generally is academic in respect of criminal and civil causes under the antitrust laws where in the civil case the illegal acts charged as wrongful are alleged to have been intentional. In respect of crimes charged under such laws no specific intent is a requisite. Questions of wilful purpose or conscious design to violate the antitrust laws and to inflict injury are not involved — persons combining or contracting to restrain commerce or create a monopoly will be presumed to-have intended the necessary and natural consequences of their acts and agreements. United States v. Patten, 1913, 226 U.S. 525, 543, 33 S.Ct. 141, 57 L.Ed. 333, 44 L.R.A.(N.S.) 325; 41 C.J., Monopolies, § 65. If the identities and differences between the indictment and the complaint be considered in the light of the foregoing principles, it will be seen that the causes of action pursued in the instant case and in the criminal case are the same. So far as the differences are concerned: (a) The inclusion in the complaint of a charge of “contract” in restraint of trade is but a mere formal characterization in the complaint of what was actually described also in the indictment, to wit, the use of agreements, i.e., the license agreements, as the basic media for effectuating the combination and conspiracy. Mere lack of duplication in allegations will not make two causes legally distinct, (b) Inclusion of a monopoly in the charge of the complaint and not in that of the indictment is but the addition of an overt act, or consequence; and even though monopoly is a crime distinct from combination and conspiracy, that does not, in view of Braverman v. United States, supra, render different the causes of action sued on by the Government in the two cases, (c) The inclusion in the complaint of gypsum plaster, tile, cement, and perforated and metallized lath, in addition to the gypsum board mentioned in both the indictment and the complaint, as the products or items of manufacture and merchandising with which the combination and conspiracy was concerned, is not a legally differentiating factor. It is but an addition of facts which enlarge the scope of the conspiracy, rather than alter its identity, (d) The fact that the indictment named as manufacturing distributors whose resale prices are alleged to have been controlled pursuant to the combination and conspiracy three persons (Mathieson Alkali Works, Inc.; Wallboard Wholesalers, Inc.; Plastergon Wallboard Company) not named in the complaint is obviously too inconsequential a difference in respect of persons alleged to have been affected to distinguish the combination and conspiracy described in the indictment from that described in the complaint, (e) The inclusion in the complaint, as compared with the indictment, of three additional consequences of (or means of effectuating) the combination and conspiracy is again but the addition of overt acts and these, as said above, are not vital to a conspiracy to violate the antitrust laws, (f) The charge in the complaint, as distinguished from the indictment, of illegality in the license agreements of 1929 and 1930, and (g) the attack in the complaint, but not in the indictment, upon the validity of the patents upon which the license agreements are based, do not necessarily make the cause of action sued on in the complaint different from that involved in the indictment. Here must be emphasized the principle enunciated in the quotation from Baltimore S. S. Co. v. Phillips, supra, and exemplified also in United States v. California & Oregon Land Co., Werlein v. New Orleans, and McKnight v. Minneapolis St. R. Co., supra, that the thing which in contemplation of law as its cause becomes a ground for action is not the group of facts alleged but the result of these in a legal wrong. In each of those cases it was contended that differing allegations of fact in two successive cases so differentiated the causes of action involved as to make inapplicable in the second a plea of res judicata based upon the decision in the first. But in each of those cases it was held that since the facts alleged in the second suit, although different from those asserted in the first, nevertheless lent support to the same cause of action as was sued on in the first, the doctrine of res judicata was applicable. The cases referred to are stated, and pertinent portions of the opinions quoted, in the margin. These decisions put it beyond doubt that where in two successive actions between the same parties it is sought in the second to defeat, upon the ground that the causes of action are different, a plea of res judicata based upon the first, the test of identity, i.e., whether the same evidence will support each charge, must be applied not in terms of the mere facts, theories or pleadings specifically relied upon in each, but in terms of the ultimate wrong sued on. It is of course true that the question what wrong is sued on must be determined from the allegations in the respective plaintiff’s pleadings. But if from the four corners of the pleadings in each of the two cases it appears that the wrong sued on in each is the same, then the assertion in the second case of facts wholly different from those asserted in the first will not defeat the plea. In short, “the same evidence test,” if applied with complete literalness, is valid as a positive but not as a negative test for determining the identity of causes. Obviously, if exactly the same items of evidence would be requisite to the establishment of a plaintiff’s case as pleaded in each of two actions between the same parties, the two causes relied upon must be the same — because the allegations would be identical and therefore could describe but one and the same legal wrong. But, as illustrated in the cases discussed in the margin, the same legal wrong may be found relied upon in each of two cases despite the fact that the pleadings may differ — in that in one the wrong is described in terms of the assertion of but a part of the facts actually available to establish it, whereas in the other these facts are omitted and the remainder stated. In such event, obviously, the evidence admissible under the pleadings in the two cases will be different; yet the causes of action are the same. Putting this still otherwise: There is a totality of facts out of which every legal wrong grows; but a single wrong cannot be made the basis of a plurality of actions by alleging in one case but a part of that totality and in another or other cases the remainder thereof. A fortiori, a single wrong cannot be made the basis of a plurality of actions by alleging in one case (as in the criminal case involved in the instant situation) but a part of the totality of facts out of which the wrong grows and in another (as in the instant civil case) again alleging that part plus the remainder. So far as (h) the difference in parties is concerned ' (referred to at this point in respect not of the question of mutuality but of the question whether the two causes of action are the same) : A cause of action thought of apart from the parties is a mere abstraction. Hence a combination and conspiracy described as having been entered into and effectuated by defendants A to H inclusive as the totality of defendants involved might be thus characterized as a different combination and conspiracy from one described as involving the same agreement and activities by defendants I to P inclusive, if these also were asserted to be the totality of defendants involved; that is to say, complete disidentity of defendants might differentiate causes, although partial disidentity might not. But difference in parties in the two cases under discussion is but partial and does not distinguish the two causes. The individuals added in the civil complaint are charged as officers of corporate defendants named in the indictment. Since a corporation can act only through human agents, this is not a distinguishing factor. And the addition of two corporate defendants in the civil case (The Celotex Corporation and the Texas Cement Plaster Company) does not materially distinguish the causes, especially since The Celotex Corporation is charged in the civil case with having acquired The American Gypsum Company, which was itself named in the indictment as a co-conspirator with the indicted defendants. That there are named in the indictment as manufacturing distributors whose resale prices are alleged to have been controlled pursuant to the combination and conspiracy three persons (Mathieson Alkali Works, Inc.; Wallboard Wholesalers, Inc.; Plastergon Wallboard Company) not named in the complaint is obviously too inconsequential a difference in respect of persons alleged to have been affected to distinguish the combination and conspiracy described in the complaint from that set forth in the indictment. Finally, the fact that (i) the purpose of the indictment is punitive, whereas the prayer of the civil complaint is for restraint, is not of itself sufficient to differentiate the causes of action involved in the two cases and so to defeat the pleas of res judicata. This constitutes merely a difference in the form of action or remedy. Stoll v. Gottlieb, Werlein v. New Orleans, supra. Scrutiny, in the light of the foregoing principles, of all of the allegations of the indictment and of the complaint demonstrates that, notwithstanding that facts are asserted in the complaint which are not asserted in the indictment, the legal wrong sued on in each of the cases is the same, to wit, concerted restraint of trade in gypsum products over the eastern area of the United States from 1929 to 1940 by substantially the same defendants. The causes of action in the two cases are therefore the same. All of the facts added in the complaint were available to the Government when it filed the indictment, both the indictment and the complaint having been filed as above appears at substantially the same time. The Government chose to omit these facts in the criminal case; it cannot now say, to avoid the pleas of res judicata, that when added in the civil suit they make it a different cause. III. The question of mutuality of parties: As has been stated above five individual and two corporate persons are named as parties in the civil complaint who were not so named in the indictment. Does this lack of strict mutuality forbid application of the doctrine of res judicata? As appears from the statement of the doctrine of res judicata set forth at the outset of this opinion, the finality of a judgment relied upon to bar a second action between the same parties on the same cause applies not only in favor of the parties but also in favor of those in privity with them. Where in the first suit the defendants are corporations alone, whereas in the second individual officers are also named as defendants but are charged in no other capacity than as officers of the corporation, such officers are treated as in privity with their corporations and therefore entitled to the benefit of the judgment entered in favor of the latter in the prior action. Straus v. American Publishers’ Ass’n. supra. In certain circumstances there is a further exception to the requirement of strict mutuality of parties for application of the doctrine of res judicata. As was said in Coca-Cola Co. v. Pepsi-Cola Co., 1934, 6 W.W.Harr. 124 (Del.Super.), 172 A. 260, 263: . .a plaintiff who deliberately selects his forum and there unsuccessfully presents his proofs, is bound by such adverse judgment in a second suit involving all the identical issues already decided. The requirement of mutuality must yield to public policy. To hold otherwise would be to allow repeated litigation of identical questions, expressly adjudicated, and to allow a litigant having lost on a question of fact to re-open and re-try all the old issues each time he can obtain a new adversary not in privity with his former one.” In 1 Freeman on Judgments (5th ed. 1925) § 429, pages 935-6, the author puts it thus: “. . . The rule of mutuality is itself based upon policy and practical necessity and justice, as is the whole doctrine of res judicata, and on the same grounds of policy and justice there would seem to be no objection to departing from it where the party affected has been given one adequate opportunity to be heard either personally or by representation.” The requirement of mutuality is in part based upon the due process guarantee of a day in court. Accordingly, although a plaintiff prevailing in one suit cannot in a second action upon the same cause of action successfully plead res judicata as against a defendant not a party, or in privity with a party, in the first proceeding, the defendant in the second case may plead res judicata although not a party to the first if in the first the plaintiff failed to prevail; the plaintiff having had his day in court on the same cause of action in the first suit, there is no objection to the defendant’s waiving his day in court in the second. Glaze v. Citizens’ Nat. Bank, 1888, 116 Ind. 492, 18 N.E. 450; Spencer v. Dearth, 1870, 43 Vt. 98; Atkinson v. White, 1872, 60 Me. 396; 35 Yale Law Journal 607-612 “Privity and Mutuality in the Doctrine of Res Judicata”; 9 Virginia Law Register (N.S.) 241-255 “Res Adjudicata: Who Entitled to Plead.” The foregoing being the law, the individual defendants added in the civil complaint, since they are charged as officers of corporations named as defendants in the indictment, and are not charged in any other capacity, may, like privies, invoke the doctrine of res judicata. The two added corporate defendants may do so within the further exception to the strict rule of mutuality just stated, the Government having failed in the criminal case. IV. It having thus been concluded that the causes of action in the criminal case and the instant civil case are the same and that the lack of strict mutuality of parties in the two cases is not an obstacle to application of the doctrine of res judicata, it remains to consider whether any other barrier exists to the operation of that doctrine in the defendants’ favor. It has been stated at the outset of this opinion that acquittal in a criminal case upon submission to a jury in the usual course will not operate to bar a subsequent civil suit on the same cause between the same parties because of the higher degree of proof required in a criminal as compared with a civil case, the necessity of proving criminal intent in a criminal case, Helvering v. Mitchell and companion cases cited supra, and the. greater access to evidence and witnesses, including the defendant as a witness, in a civil case, as a result of which a plaintiff’s judgment might be obtained in a civil suit notwithstanding that the same cause pursued in a criminal proceeding against the same defendant had failed. But the criminal case to which the pleas of res judicata in the instant civil action relate was disposed of not by acquittal upon submission to a jury in the usual course, but by the granting of the defendants’ motions for directed verdict made at the close of the Government's evidence. The defendants contend that this type of disposition of the criminal case makes inapplicable the rule just stated. A discrimination must here be made: On a motion for directed verdict at the close of the Government’s evidence in a criminal case a trial judge may rule in favor of the defendant because although, in the judge’s view, substantial evidence has been introduced of each of the elements of the charge and of the defendant’s connection therewith, the facts proved by such evidence fail, as a matter of law, in the opinion of the judge, to constitute a public offense. In so ruling he sustains, in the terminology of the common law, a demurrer to the evidence, and in effect a demurrer to the indictment — -since the evidence reflects the charge. Substantial as distinguished from formal defects in an indictment are not waived by failure to attack them by motion to quash or demurrer prior to trial. Dunbar v. United States, 1895, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; United States v. Carll, 1881, 105 U.S. 611, 26 L.Ed. 1135; Berry v. United States, 9 Cir., 1919, 259 F. 203. A demurrer to the evidence . . is defined by the best text writers to be a proceeding by which the court in which the action is depending is called upon to decide what the law is upon the facts shown in evidence, and it is regarded in general as analogous to a demurrer upon the facts alleged in the pleading. When a party wishes to withdraw from the jury the application of the law to the facts, he may, by consent of the court, demur in law upon the evidence, the effect of which is to take from the jury and refer to the court the application of the law to the facts, and thus the evidence is made a part -of the record, and is considered by the court as in the case of a special verdict.’ Suydam v. Williamson [1857], 61 U.S. 427, 20 How. 427, 15 L.Ed. 978; Van Stone v. Stillwell Mfg. Co. [1891], 142 U.S. [128] 134, [12 S.Ct. 181], 35 L.Ed. [961] 963. . . .” Hopkins v. Nashville, C. & St. L. R. R., 1896, 96 Tenn. 409, 34 S.W. 1029, 1032, 32 L.R.A. 354, 359 (1913 ed.) A disposition upon such a theory of a motion for directed verdict in a criminal case is a basis for a bar under the doctrine of res judicata to the prosecution of a subsequent civil suit on the same cause between the same parties. United States v. Salen, supra. Since such a disposition is made upon the assumption that all of the facts charged are true it involves no question of degree of proof or of availability of witnesses or of evidence and is a determination of the case upon the merits upon a pure question of law. It determines that, as a matter of law, no legal wrong exists in the facts charged and admitted. Absent a violation of law in the facts charged in a criminal case there is no foundation for a subsequent civil suit. If there is no wrong, there is nothing upon which to proceed either criminally or civilly. It follows that if the disposition of the criminal case relied on in the instant civil case as a basis for the defendants’ pleas of res judicata was of this type, then the pleas are good and the motions for summary judgment must be granted. But a trial judge may rule in the defendant’s favor on a motion for directed verdict at the close of the Government’s evidence in a criminal case on a different ground, i.e., because although, in his view, the indictment charges a public offense, and some evidence has been introduced of each element of the offense as charged and of the defendant’s connection therewith, the evidence is not, in the opinion of the judge, substantial, or, if substantial as to some of the elements of the charge, is insubstantial as to others or as to the defendant’s connection with the offense; that is to say, the judge may answer in the negative the question — is the evidence sufficient to show that the offense charged was committed and that the defendant committed it. It is the contention of the defendants in the instant case that this type óf disposition of a motion for directed verdict also forms a proper basis for a plea of res judicata in a subsequent civil suit, notwithstanding the rule of Helvering v. Mitchell and companion cases cited supra. This contention of the defendants is not justifiable for two reasons: First, the evidence in a criminal case may be insubstantial, as compared with that which might be produced in a subsequent civil suit on the same cause, by reason of the fact that in the criminal case the Government has less access to evidence and witnesses, including the defendant as a witness, than in a civil suit; that is to say, in the civil case, where the Government as plaintiff will have the right to call the defendant as a witness and to use the processes of discovery of evidence, the Government may be able to prevail notwithstanding the failure of its case in the criminal proceeding. Second, a trial judge in this type of ruling upon a motion for directed verdict at the close of the Government’s evidence in a criminal case, considers not merely whether the evidence is substantial, in the sense of that term as used in civil cases, but in addition whether it could properly convince a jury beyond a reasonable doubt of the defendant’s guilt. It is true that the judge must not, at this stage of the case, inject into the decision his own judgment in respect of questions of credibility. He must assume the truth of the Government’s evidence and give the Government the benefit of all legitimate inferences to be drawn therefrom. But he determines also whether such evidence and inferences, so taken to be true, will serve to sustain a verdict of conviction. If his conclusion is in the affirmative, then he must send the case to the jury (even though, were he free to weigh the evidence in the sense of passing upon its credibility, he would himself acquit). If his conclusion is in the negative he must direct a verdict in the defendant’s favor. But this he cannot do without deciding that such evidence and inferences could not convince the jury beyond a reasonable doubt, i.e., he takes into account that higher degree of proof required in criminal cases as compared with civil. The defendants dispute this proposition. It is true that the rule in the Federal courts, stated in general terms, is that a scintilla of evidence is insufficient to take a case to the jury — that evidence must be “substantial” — that if the plaintiff’s evidence, taking it as true and according the plaintiff the benefit of legitimate favorable inferences, is “substantial,” the case goes to the jury. Pennsylvania R. Co. v. Chamberlain, 1933, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Gunning v. Cooley, 1930, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Baltimore & Ohio R. Co. v. Groeger, 1925, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Slocum v. New York Life Ins. Co., 1913, 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann. Cas.1914D, 1029; Jackson v. Capital Transit Co., 1938, 69 App.D.C. 147, 99 F.2d 380; Hopkins v. Baltimore & Ohio R. Co., 1936, 65 App.D.C. 167, 81 F.2d 894. And conventionally “substantial evidence” is merely such evidence as a reasonable mind might accept as adequate to support a conclusion. Cf. Consolidated Edison Co. v. National Labor Relations Board, 1938, 305 U.S. 197, 229, 230, 59 S.Ct. 206, 83 L.Ed. 126. One criminal case, Hays v. United States, 8 Cir., 1916, 231 F. 106, supports the contention of the defendants; and they cite also in support of their contention Cady v. United States, 1923, 54 App.D.C. 10, 293 F. 829, and Stilson v. United States, 1919, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154. In Hays v. United States, Hays was jointly indicted with a woman named Lessie Jones for violating the White Slave Traffic Act, 18 U.S.C.A. § 397 et seq., one count of the indictment charging the furnishing of transportation to a seventeen year 'old girl for an interstate journey for an illicit purpose and another charging persuading and inducing the girl to make the same journey for the same purpose. At the conclusion of the Government’s case, no evidence having been introduced by the defendants, a motion was. made for a directed verdict and denied, and' there was then a conviction on both counts.. Hays appealed to the Circuit Court of Appeals and assigned as error the denial of the motion. He conceded on the appeal that there was substantial evidence to establish all of the elements of the offenses charged, but urged that such evidence was insufficient to convince the jury beyond a. reasonable doubt. The Court of Appeals held that there was no error. It said: “. . . Where there is substantial evidence tending to prove each element of the-offense charged, the verdict of the jury is final. Whether the evidence is of sufficient probative force to convince the mind beyond a reasonable doubt is addressed solely-to the judgment of the jury. The court can do no more than accurately state the rule of law. There is no way by which the doctrines of reasonable doubt and presumption of innocence can be properly used to create-a new zone of error, or devolve upon appellate courts the duty to examine evidence- and determine its probative' force. . . [231 F. at page 108] In Cady v. United States the defendants were convicted of feloniously entering with intent to commit larceny a garage occupied' by another. The Government’s evidence-was that the defendants had been found in the garage, whereupon they walked out without explanation; there was also evidence that someone had broken in. The defendants did not take the witness stand and did not introduce any evidence. A motion for directed verdict, made upon the ground that mere presence of the defendants in the garage could not raise a presumption of felonious intent, was denied. On appeal this ruling was held correct, the United States Court of Appeals for the District of Columbia saying: “We are reminded of the well-established and oft-repeated principle that, unless thqre is substantial evidence of- facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused, and, where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a conviction. But it is not applicable here, because the facts established are such that the jury was fully warranted in deducing from them inferences which excluded every other hypothesis but that of guilt.” [54 App.D.C. at page 11, 293 F. at page 830] In Stilson v. United States, where again the contention upon appeal was that a motion for directed verdict should have been granted upon the ground that there was no substantial evidence to support a verdict of guilty, the Court said: “As to the contention that there was no evidence to warrant the convictions of the accused — it must be borne in mind that it is not the province of this court to weigh testimony. It is sufficient to support the judgment of the District Court, if there was substantial evidence inculpating the defendants which, if believed by the jury, would justify the submission of the issues to it. . . . ” [250 U.S. at page 588, 40 S.Ct. at page 30, 63 L.Ed. 1154] While Hays v. United States does both in ruling and terms support the defendants’ contention, it is from another Circuit and' is therefore not controlling. While Cady v. United States and Stilson v. United States may perhaps be said, in using the phrase “substantial evidence” without reference to the rule of proof in criminal cases and without statement that the evidence must be such that a verdict for the Government could be sustained, to lend some verbal countenance to the defendants’ contention, in neither Stilson v. United States nor Cady v. United States was there presented and determined or discussed the exact question whether a trial judge, in deciding in a criminal case whether there is substantial evidence, passes upon the sufficiency of the evidence in the sense of determining whether it could convince a jury beyond a reasonable doubt. Hammond v. United States, 1942, 75 U.S.App.D.C. 397, 127 F.2d 752, authoritatively states the rule for and reflects what has long been the practice of trial judges in the District of Columbia in determining in criminal cases the question whether there is substantial evidence for submission to a jury. That Hammond v. United States was decided after the trial judge directed the verdict in the defendants’ favor in criminal case No. 66,008 is not material. Cf. Ruppert v. Ruppert, 1942, 77 U.S.App.D.C. 65, 134 F.2d 497. In Hammond v. United States the appellant was indicted for assault with intent to commit rape. The evidence for the Government was that around two o’clock in the morning he went to the home of his mother-in-law with whom his wife and baby were living, went into the bedroom of a seventeen year old sister-in-law, pulled off the covers and touched her private parts; she awakened and screamed, and the appellant ran from the house. After the submission of this evidence there was a motion by the appellant for a directed verdict, which was denied. It was renewed at the conclusion of the entire case and again denied. On appeal it was held that it was error not to have directed a verdict. The Court of Appeals pointed out that the elements necessary to be proven were (1) an assault; (2) an intent to have carnal knowledge; (3) a purpose to carry this intent into effect with force and against consent. Quoting from Isbell v. United States, 8 Cir., 1915, 227 F. 788, 792, the court said: “. . . Unless there is substantial evidence of facts