Full opinion text
BROOKS, Circuit Judge. These are appeals by defendants-appellants, United Mine Workers of America (UMW or Union) and Consolidation Coal Company (Consol or Consolidation), from a jury verdict imposing civil liability for alleged violation of Sections 1 and 2 of the Sherman Anti-Trust Act (15 U.S.C. §§ 1 and 2). Plaintiff, SouthEast Coal Company (South-East), contended that a conspiracy to restrain trade existed between UMW, Consol and other large coal companies and the Bituminous Coal Operators Association (BCOA) which was designed to force South-East and other small coal producers in Eastern Kentucky out of the bituminous coal business. After a trial lasting six weeks, the jury returned a verdict for plaintiff, South-East Coal Company, in the amount of $2,410,452. This amount was tripled ($7,231,356) as required by 15 U.S.C. § 15, and attorneys’ fees of $335,000 were allowed, bringing the total judgment to $7,566,356. We affirm. On numerous occasions this Court has considered similar alleged conspiracies between the UMW and large bituminous coal producers and for a general explanation and description of the nature of the contended conspiracy in this case, the following cases are particularly illuminating. United Mine Workers of America v. Pennington, 381 U.S. 657 at 664, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Tennessee Consolidated Coal Company v. United Mine Workers, 416 F.2d 1192 at 1193 (6th Cir. 1969); Ramsey v. United Mine Workers, 265 F.Supp. 388 at 392, 393 (E.D.Tenn.1967); Pennington v. United Mine Workers, 325 F.2d 804 at 806, 807 (6th Cir. 1963). While recognizing that the present case is factually distinguishable from these cited cases and that differing proof was employed by the plaintiff, South-East, in attempting to establish the existence of this conspiracy, this opinion would, however, be unduly lengthened by an elaborate discussion of plaintiff’s case and proof. Therefore, the specific and unique facts involved in this case which bear on issues raised on this appeal will be considered in conjunction with those issues. Both appellants have taken issue with certain conduct at trial which allegedly prejudice, them jointly, and these issues will be consolidated for consideration. Issues raised by appellants which explore alleged errors having only singular significance will be dealt with individually. I. ALLEGED ERRORS IN INSTRUCTIONS A. The Standard of Proof Required to Impose Liability Consol and the Union argue that the District Court erred in its charge to the jury on the necessary degree or standard of proof which plaintiff must meet in order for the jury to conclude that appellants violated the Sherman Act. The Union, relying upon Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968) and Ramsey v. United Mine Works of America, 416 F.2d 655 (6th Cir. 1969), contends that the District Court did not adequately or accurately instruct the jury that to impose liability on the Union every essential element of the violation, except damáges, must be established by “clear proof”. Consol joins in and maintains that it too should get the benefit of this more stringent standard of proof. This Circuit is somewhat in disagreement as to the proper degree of proof required to hold a labor union liable for violating the Sherman Act. In the en banc hearing in Ramsey v. United Mine Workers, supra, the Court divided evenly on the issue. Four judges held that to impose liability on a labor union for a Sherman Act violation Section 6 of the Norris-LaGuardia Act requires that every element of the unlawful act except damages be shown by “clear proof”. Four judges construed this section of the Norris-LaGuardia Act to provide that the “clear proof” standard applied only in proving that the Union participated in, authorized or ratified the unlawful acts of its officers with actual knowledge. They concluded that after this was shown by “clear proof” the remaining elements of the antitrust violation — formation of the antitrust conspiracy, the unlawful acts, causation and damages, and all the other elements — required proof only by a preponderance of the evidence. Because a major coal company has been named a defendant as a coconspirator with the UMW in this antitrust case, a unique problem is presented with respect to the standard of proof question. That problem is what standard of proof must be met by the plaintiff to hold a company liable for an antitrust violation if it conspired with a labor union. If it is assumed that the correct standard of proof to be applied in holding a labor union civilly liable for a Sherman Act violation is “clear proof” of all essential elements, the question then is: “Should a company which is fortuitously joined as a coconspirator of a labor union in an antitrust case get the benefit of the stricter standard of proof afforded the union?” There is no basis in either the Sherman Act or the NorrisLaGuardia Act to indicate that to impose liability on a company, named as a co-conspirator of a labor union for an antitrust violation, anything more than a preponderance of the evidence is necessary. To hold that a company should get the benefit of this more strict standard, simply because it was named with a labor union as a coconspirator in a scheme to restrain trade, would be to grant such a company a more advantageous position than other companies would have, which might violate the antitrust laws but are not joined with a union. The law does not provide such an arbitrary advantage. The standard of proof applicable to a company in attempting to show it violated the antitrust laws, regardless of whether it is joined as a coconspirator with a labor union, is the preponderance of the evidence. Bigelow v. RKO Radio Pictures, 150 F.2d 877, 883 (7th Cir. 1945); reversed on other grounds, 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946). Having concluded that the standard of proof needed to be met to hold a company civilly liable for an antitrust violation is preponderance of the evidence, another legal hurdle is encountered when, as in this case, a company is joined as a coconspirator with a union. Again, assume that the correct standard of proof applicable to a labor union under these circumstances is “clear proof.” Hypothetically, a situation could exist where only a union and a single company have conspired to restrain trade. Suppose that in this hypothetical ease it could be shown by a preponderance of the evidence that the company did conspire to violate the antitrust laws, however, while a preponderance of the evidence also showed the union conspired, it could not be shown by “clear proof.” Therefore, the union would be exonerated and, by force of the fact that a Sherman Act violation is an actionable wrong only when committed under an unlawful conspiracy by two or more, the company would also escape liability. United States v. Socony-Vacuum Oil Company, 310 U. S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Standard Oil Company of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148. Thus, the company by indirect method would have received the benefit of the more strict standard of proof. While the chances of a situation as this occurring are perhaps remote, this explains the type of problem which may result when parties to an actionable wrong like conspiracy have their respective ultimate liabilities gauged by different standards of proof. This leads to the question of whether all essential elements of an alleged antitrust conspiracy against a labor union must be shown by “clear proof.” The en banc decision of this Court in Ramsey did not resolve this controversy. Without a repetitive discussion of the rationale behind this panel’s conclusion on this issue, already extensively explored in Judge O’Sullivan’s opinion in Ramsey, it is concluded that while “clear proof” is necessary to show.that the Union participated, authorized, or ratified the acts of its officers, the essential elements of the conspiracy necessary to resolve the ultimate issue of liability need be shown only by a preponderance of the evidence. (See n. 4). The jury charge on the standard of proof issue could have been more clear, however, the parties were given the benefit of a partial instruction which was more stringent than required by this Court’s conclusion on what is the proper standard of proof. Thus, the parties were not prejudiced by the instruction even if it was erroneous. B. The Reasonableness of the Restraint UMW and Consol claim they were prejudiced by the absence of an instruction to the jury that only undue or unreasonable restraints of trade or competition are grounds for finding a Sherman Act violation. Usually, to find that a violation of the Sherman Act has occurred, the restraint of trade or competition resulting from certain acts committed by the accused parties must be “unreasonable.” See generally, Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); Apex Hosiery Company v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940); Lewis v. Pennington, supra. However, there are several types of restraints of trade which are per se unreasonable. See e. g., United States v. Trenton Potteries Company, 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); United States v. Socony-Vacuum Oil Company, Inc., supra; United States v. Consolidated Laundries Corporation, 291 F.2d 563 (2nd Cir. 1961). Other restraints, while reasonable on their face, become unreasonable when they are accompanied with a specific intent to accomplish a forbidden restraint. United States v. Columbia Steel Company, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948). In United Mine Workers of America v. Pennington, supra, an alleged conspiracy existed which had as part of its purpose the identical objective that plaintiff, South-East, contends was the object of this particular conspiracy. • That is, that the “union entered into a conspiracy with the large operators to impose the agreed-upon wages and royalty scales upon the smaller, non-union operators, regardless of their ability to pay and regardless of whether or not the union represented the employees of these companies, all for the purpose of eliminating them from the industry, limiting production and preempting the market for the. large unionized operators.” Respecting this type of conspiracy the Supreme Court observed at 381 U.S. 665, 666, 85 S.Ct. 1591: “[A] union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. No case under the antitrust laws could be made out on evidence limited to such union behavior (Footnote omitted). But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy.” The Supreme Court then made the following analogy: “One could hardly contend, for example, that one group of employers could lawfully demand that the union impose on other employers wages that were significantly higher than those paid by the requesting employers, or a system of computing wages that, because of differences in methods of production, would be more costly to one set of employers than to another. The anticompetitive potential of such a combination is obvious, but is little more severe than what is alleged to have been the purpose and effect of the conspiracy in this case to establish wages at a level that marginal producers could not pay so that they would be driven from the industry.” 381 U.S. at 668, 85 S.Ct. at 1592. The conclusion which can be drawn from this language is that when a labor union and an employer enter into a plan or scheme of the type which results in the union losing its exemption from liability under the antitrust law, that plan or scheme is by definition an unreasonable restraint under the antitrust laws. [But see the interpretation given this language by Judge Peck in Lewis v. Pennington, 400 F.2d 806, 813-814 (1968) and by District Judge Wilson in Ramsey v. United Mine Workers, 265 F.Supp. 388, 399 (1967)]. Thus, if it could be shown that in this case the Union entered into a conspiracy with certain large coal operators to impose agreed upon wages and royalties upon smaller, nonunion coal producers, regardless of their ability to pay and regardless of whether or not the Union represented the employees of these smaller companies, all for the avowed purpose of eliminating them from the business, limiting production and pre-empting the market for the larger, unionized coal producers, this conspiracy would be a per se unreasonable restraint of trade or competition. While the District Court did not give an instruction that only undue or unreasonable restraints of trade or competition can be grounds for a jury to conclude that there was an antitrust violation, in light of the conclusion that if the alleged conspiracy in this case was proved, it would be by definition unreasonable, no specific instruction on the reasonableness of the restraint was necessary. C. Instructions on a Labor Union’s Exemption from the Antitrust Laws The United Mine Workers argue that they were prejudiced by the District Court’s failure to give its proffered instruction on a labor union’s exemption from the antitrust laws. The District Court gave the following instructions respecting activities of a labor union and their relationship to the antitrust laws: “Now, the law does not make it unlawful for them to combine for the purpose of making a union for the purpose of protecting their rights and for having a bargaining agent, so you are not to consider because the union is composed of a great many miners, all of the miners in this Eastern Kentucky who are members of it, that of itself is not unlawful. The courts have expressly said so. “The law has expressly said so in what is known as the La Guardia Act that was passed by the Congress. That is not unlawful.” “Then under the national law and under the national policy, the labor laws, as we have produced under what is known as the Labor Act, and the LaGuardia Act and these other Acts of Congress, they were allowed to bargain collectively. They didn’t hire one man for so much and another for so much, but the miners and other workers in other industries were allowed to bargain collectively and to select a bargaining agent.” “A union may make wage agreements with a multi-employer bargaining unit and may, in pursuance of its own union’s interest, seek to obtain the same terms from other employers; but a union forfeits its exemption from the anti-trust laws when it is clearly shown that it has an agreement with one set of employers to impose a wage scale on the bargaining unit.” “One group of employers may not conspire to eliminate competitors from the industry, and the union is liable with the employers if it becomes a party to the conspiracy. “This is true even though the union’s part in the scheme is an undertaking to secure the same wages, hours, or other conditions of employment for the remaining employees and employer in the industry. “It is a legitimate aim of any national labor organization to obtain uniformity of labor standards, and it may be a consequence of such union activity to eliminate competition based on difference in such standards. “This, however, does not mean that the union and the employers in one bargaining unit are free to bargain about wages, hours, and working conditions of other bargaining units or to attempt to settle these matters for the entire industry. “The union has a duty to bargain unit by unit in order to best serve its obligations to its members. “The Union should retain the ability to respond to each bargaining situation as the individual circumstances might warrant without being straight-jacketed by some prior agreement with favored employers.” These instructions, portions of which are taken from UMW v. Pennington, 381 U.S. 657, 185 S.Ct. 1585, 14 L.Ed.2d 626 (1965), adequately explained to the jury what types of conduct a labor union may engage in without fear of antitrust violation repercussion. The instructions also advised the jury under what circumstances otherwise lawful union activity would result in an antitrust violation. See generally, Allen Bradley Company v. Local Union No. 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945); United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Ramsey v. United Mine Workers, swpra,. The Union complains that the expression “exemption” was only used once in the instruction. It is interesting to observe that even in UMW’s proffered instruction on this subject (see n. 8) the expression “exemption” was not used. While a party has the right to have his legal claims of defenses stated to the jury by way of instructions, so long as the District Judge accurately states these claims or defenses, there can be no grounds for objection simply because the exact wording or phrasing of the requesting party are not used. The Union contends that the instructions in this case were as fatal as those given in Cedar Crest Hats, Inc. v. United Hatters, Cap and Millinery Workers International Union, 362 F.2d 322 (5th Cir. 1966). That suit involved a labor union against whom charges of antitrust violations and unfair labor practices were made. On appeal the union objected to the court’s instructions which did not even mention that certain conduct engaged in by a labor union does not fall within the scope of activities violating the antitrust laws. A comparison of the trial court’s instruction in that case (appearing at 362 F.2d 322, 325-326) with the instructions given in the instant case, supra, respecting a labor union’s conduct in regard to the antitrust laws clearly indicates that the instructions in question on this appeal were both correct and fair. D. Equal Hypothesis Rule Appellants contend it was error for the District Court not to instruct the jury that “where proven facts give equal support to each of two inconsistent inferences ; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.” Pennsylvania Railroad Company v. Chamberlain, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819 (1933). It is argued that such an instruction is a necessary component of the law applicable to circumstantial evidence and was properly given in Ramsey v. United Mine Workers, 265 F.Supp. 388 at 432 (1967), and Tennessee Consolidated Coal Company v. United Mine Workers (unreported District Court opinion) and respectively affirmed by this Court in Ramsey v. United Mine Workers, 416 F. 2d 655, 665 (6th Cir. 1969), and Tennessee Consolidated Coal Company v. United Mine Workers, 416 F.2d 1192, 1202-1203 (6th Cir. 1969). It appears that the “equal hypothesis rule” is simply a negative way of phrasing the rule of law that a plaintiff must sustain his burden of proof. Thus, if a plaintiff does not come forth with evidence, when considered in light of opposing evidence, from which a jury could infer the truth of an alleged proposition over its contra-proposition, the plaintiff has not met his burden of proof. When there are equal inferences which can be drawn from a particular set of facts — one inference indicating liability, the other non-liability — it is the judge's obligation at the direct verdict stage of the trial to find for the defendant. See Pennsylvania Railroad Company v. Chamberlain, supra; Gulf Refining Company v. Mark C. Walker & Son Company, 124 F.2d 420, 426 (6th Cir. 1942). It would not be proper under these circumstances for the trial judge to relinquish to the jury this responsibility by simply giving them an instruction to the effect that if they could not draw either an inference of liability or one of nonliability from the facts presented, they should conclude nonliability. In this case the District Court instructed the jury on the meaning of plaintiff having to sustain the burden of proof by a preponderance of the evidence. He stated: “Now, in order to recover, the South-East Coal Company must sustain the burden of proof; in other words, if no proof was offered, there would be no judgment for the plaintiff. It is his responsibility to offer proof to establish the facts that he claims. “And the defendant has the right, as you have seen here, to offer proof to contradict those facts or to explain those facts or to justify its conduct, which may have been brought out by witnesses for the plaintiff in support of its allegations. “But it is the responsibility of the plaintiff to sustain this burden of proof. Now, by ‘burden of proof,’ it doesn’t necessarily mean the greater number of witnesses. Sometimes the burden of proof in lawsuits can be sustained by one witness as contrary to fifteen on the other side, and so you are not to confuse the idea of ‘burden of proof’ with numbers of witnesses or numbers of depositions or other articles of evidence that might be offered. “But it must convince you, before this plaintiff may recover, it must sustain its burden of proof by proving every essential element of the claim, by a preponderance of the evidence. “Should it fail in its proof, under this rule you should find for the defendant. “To establish the preponderance of the evidence means to prove that something is more likely so than not so; in other words, the ‘preponderance of the evidence’ means such evidence, when considered and compared with that opposed to it, has more convincing force and produces in your minds belief that what is sought to be proved is more likely to be true than not true.” These instructions explained what South-East had to prove and to what degree the jury must be convinced of the truth of South-East’s assertions. It was not error for the District Court to refuse to give the, “equal hypothesis” instruction requested by appellants. E. Instructions Respecting the Use to be Made by the Jury of Certain Hearsay Statements Consolidation raises as error the District Court’s refusal to give a concluding instruction to the jury regarding the permissive use of certain statements which were competent evidence as against the Union but were hearsay as applied to Consolidation. The rejected instruction stated in part that: “During the trial the Court has permitted the introduction of evidence concerning the actions and statements of each of the defendants with specific admonition to the jury, however, that the members of the jury must not consider that evidence against the other defendants * * *. Inasmuch as there can be no liability on the part of the defendants unless a conspiracy is (proven) * * * you must disregard all of such evidence unless you first find by other and disassociated evidence in the case sufficient * * * proof that the conspiracy claimed by plaintiff existed. In such event you may then consider the evidence subject to the admonition in concert with all the other evidence in the case.” A requested instruction similar to this was not given in Schmeller v. United States, 143 F.2d 544, 550 (6th Cir. 1944), and it was held reversible error. This case lends the strongest support for Consolidation’s position. However, since the Schmeller ease was decided, the logic and correctness of a jury charge that instructs that certain hearsay statements as to one defendant cannot be used by the jury in determining whether a conspiracy exists between defendants until the jury has first concluded that the defendants are guilty of an unlawful conspiracy, has apparently been seriously challenged. In addition, appellants’ reliance on Schmeller is not entirely appropriate as part of the reason the Court found error in the refusal to give the instruction was that there were both substantive charges and a conspiracy charge involved. In the instant case we are dealing only with a conspiracy charge. In Carbo v. United States, 314 F.2d 718, 736 (9th Cir. 1963), an instruction almost identical to that offered by Consolidation in this case was held to have been properly rejected as not a correct statement of the law. The Court in Carbo observed: “The situation is rendered confusing by the fact that the admissibility of this evidence (concededly relevant but challenged under a technical evidentiary rule of competence) depends upon a disputed preliminary question of fact which coincides with the ultimate jury question upon the merits. (Footnote omitted). The declarations are admissible against the defendants if they are co-conspirators. If they are co-conspirators they are guilty. The problem presented to us is whether the preliminary question (upon the resolution of which only independent evidence is available) is to be resolved by the jury or by the judge. Appellants’ view of the law [which, except, for the standard of proof is identical to that asserted by Consolidation] * * * is that the preliminary question is to be resolved by the jury upon proof beyond a reasonable doubt. “Yet if by independent evidence the defendant’s position as a co-conspirator is to be established by the jury upon their judgment beyond a reasonable doubt, there is no occasion ever to resort to the declaration at all. The district court in effect will have told the jury, ‘You may not consider this evidence unless you first find the defendant guilty.’ ” [Bracketed explanation is this Court’s]. While Carbo and many of the cases which have dealt with this problem are criminal in nature, therefore requiring the jury to conclude the existence of a conspiracy beyond a reasonable doubt, the paradox of instructing a jury that certain statements can be used to establish a conspiracy only after they have already found the conspiracy to exist is just as illogical in civil cases, although a lesser standard of proof is required. Thus, it is concluded that the preliminary question of the admissibility of evidence challenged under this technical evidentiary rule (this is clearly a question of admissibility and not of sufficiency or weight of the evidence, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962)) is a matter for the judge not the jury to decide and, therefore, the instruction was properly rejected by the District Court. We deal here only with the propriety, as a legal matter, of the District Court’s refusal to give Consolidation’s proposed instruction, and the question of whether the Court erred in admitting these statements because no prima facie case was established will be considered later, infra, see p. 788. F. Instructions Respecting the Protective Wage Clause and “80-Cent Clause” in the National Agreement Alleged errors in the District Court’s instruction regarding the Protective Wage Clause (PWC) and the “80-cent clause” presents a legal problem the resolution of which may be helped by a brief discussion of the clauses and the role they played in the various national labor agreements in which they appeared. The National Bituminous Coal Wage Agreement entered into between the Bituminous Coal Operators Association (BCOA) and the United Mine Workers in 1950 was amended in 1958 thereby incorporating the Protective Wage Clause. The arrangement provided by the clause was that the United Mine Workers agreed, as bargaining agent for the employees covered by the contract (members of the UMW), that while the contract was in effect it would not enter into, or be a party to any agreement covering wages or working conditions which were not on an equal basis with those provisions contained in this contract. In retura for this commitment, the coal producing signatories to the National Agreement (BCOA members) agreed “that all bituminous coal mined, produced, or prepared by them, or any of them, or procured or acquired by them or any of them under a subcontract arrangement shall be or shall have been mined or produced under terms and conditions which are as favorable to the employees as those provided for in this contract.” The “80-cent clause” of 1964 amended the Welfare and Retirement Fund provisions of the 1950 National Agreement. The Protective Wage Clause was dropped from the Agreement in that year. Until this amendment went into effect signatories to the National Agreement had to pay into the Welfare Fund forty cents per ton of coal they produced. The purpose of the amendment was to obligate signatories who procured or acquired bituminous coal for sale or use which was not produced under an agreement requiring the paying of forty cents per ton into the Welfare Fund (non-UMW produced coal) to pay eighty cents into the Welfare Fund for each ton of coal so procured. While the stated purpose of the amendment was to protect work standards by equalizing labor costs between employees of signatories and non-signatories, the obvious effect was to discourage signatories from purchasing or acting as sale agents for coal companies which produced coal with non-UMW laborers. The legality of the Protective Wage Clause, in terms of the antitrust laws, was considered in the Ramsey and Tennessee Consolidated Coal cases. In Ravnsey, responding to the allegation that the PWC was a per se violation of the Sherman Act, the Court (all judges concurred in this portion of the opinion) observed that the clause was capable of two opposite constructions. However, the proper interpretation to be given the clause was the one “that does not result in a violation of the law.” Ramsey at 659. In Tennessee Consolidated Coal the jury’s general verdict imposing liability on the Union concluded that the PWC required the Union not to bargain with non-signatory operators except upon the terms and conditions of the National Agreement, 416 F.2d 1192, 1197 (6th Cir. 1969). The jury also found in response to special interrogatories that “prior to and apart from” the National Agreement as amended in 1958 the UMW did not conspire with signatory coal operators to impose the terms of the National Agreement on non-signatories. It should be noted that except for several minor alterations in the 1950 National Agreement made by the 1958 amendment, the addition of the Protective Wage Clause by the amendment constituted the major change in the National Agreement. On appeal in Tennessee Coal, this Court stated that the contract, the PWC, was ambiguous and that all circumstances surrounding the contract and the practical construction given it by the parties could be used by the jury in determining the meaning of the contract. While it cannot be said with absolute certainty upon which theory or basis the jury chose to impose liability in the Tennessee Coal case, it seems that the jury felt that the PWC was the crux of the Union's illegal conduct. The legality of the “80-cent clause” in terms of the antitrust laws has not been considered by an appellate court. When the “80-cent clause” was incorporated into the National Agreement, charges that it violated Section 8(e) of the National Labor Relations Act were raised. See Lewis v. National Labor Relations Board, 122 U.S.App.D.C. 18, 350 F.2d 801 (1965); International Union, United Mine Workers v. National Labor Relations Board, 130 U.S.App.D.C. 244, 399 F.2d 977 (1968). A final determination of this question has not been made. Appellants maintain that the instruction with respect to these clauses failed to “adequately or accurately” explain the significance of these provisions and the proper legal interpretation that should be given them. Specifically, they contend that the District Court’s instructions were in contradiction in so far as they instructed the jury that the contracts or national agreements containing these clauses were legal, but that they, the jury, could conclude that an antitrust violation occurred if they found that the agreements were entered into with the intention of driving certain coal producers out of business. It is argued that this is paradoxical and that either the agreements were legal or illegal. SouthEast contends that the instructions were accurate and more than adequate because they admitted the legality of the clauses in the national agreements, but based their claim of antitrust violation on the theory of the existence of an “intentional predatory conspiracy” as developed by Mr. Justice White’s opinion in Pennington. Neither of these positions is a wholly correct interpretation of the law as stated in Pennington. In Ramsey the Supreme Court’s decision in Pennington was examined with particular attention given to what type of combination or agreement between an employer and a labor union might produce grounds for concluding that an antitrust violation occurred. It was in Ramsey that it was decided that “the language of the agreement (PWC) did not per se constitute an illegal conspiracy.” In addition, Pennington was construed to have held that “a conspiracy between employers and labor formed with the intention of driving competitors out of business is a violation of the Sherman Act” and that “ ‘predatory intent’ (as used by Mr. Justice White, 381 U.S. at 668, 85 S.Ct. 1585 * * *) is merely shorthand employed to describe this anti-competitive conspiracy.” Reviewing the Ramsey decision’s interpretation of Pennington, four conclusions may be drawn applicable to the present dispute. First, the National Agreement containing the Protective Wage Clause is, on its face, a valid labor contract which seeks to implement the perfectly legal goals of uniformity of wages and working conditions. Second, if this agreement was made or entered into by the union in pursuance of its own self interests, there are no grounds for concluding a violation of the antitrust laws. Third, if, however, the employers and union entered into this contract with the conscious knowledge or intent that it would be used to drive competitors out of business (more than the incidental effects caused by the adoption of a uniform wage agreement which may result in certain operators not being able to function profitably), then a violation of the antitrust laws has occurred. Fourth, it is this either expressly or impliedly agreed-upon use of the valid contract, that is, that it will be used to drive competitors out of business, that comprises the agreement or conspiracy which is illegal for purposes of the antitrust laws. Without deciding the question of the legality of the “80-cent clause” suffice it to be said that these conclusions are also applicable to that provision. The District Court gave the following instruction with regard to the National Agreement, the nature of an illegal conspiracy and what South-East was required to show before the jury could impose liability on the defendants: “In order to establish a conspiracy or unlawful arrangement as claimed by the plaintiff in this case it is not necessary that the plaintiff should offer proof of a direct arrangement or executed written contract that they are entering into a conspiracy. “It is not necessary that the agreement, if any, was the result of formal action on the part of the defendants. The real question to be determined is whether or not there was a meeting of the minds or a common understanding and purpose in the requirement of the execution of the labor agreement with the intention of doing injury to the plaintiff. “The thing which you will have to decide and which I will probably refer to again, there is nothing unlawful about that contract in itself; but if it was entered into with the intention on the part of the signatories — the two defendants here — to injure the plaintiff, if they had that in mind, that ‘we are going to go into this contract because we know it will put South-East out of business; they can't meet the conditions; we are too big, too strong, and they cannot compete with us, cannot get miners to work for them, and they cannot sell their coal on the market because they do not have sufficient sales agency, so we will deliberately enter into this and they can’t meet it; we will thereby profit by putting competitors out of business or seriously hampering his operation.’ “So, the issue is: Did these two signatories have that thing of putting the South-East Coal Company out of business in mind, the time they signed the contract? "You are instructed that if you. believe there was an industry-wide collective bargaining agreement, whereby employers and the union agreed on the wage scale that exceeds the financial ability, of some small operators, including the plaintiff, to pay, and, that the agreement was made for the purpose of forcing some employers, including the plaintiff, out of business, or injuring its business, and you believe that the defendants, the Consolidation Coal Company and the United Mine Workers, deliberately entered into and participated in such an arrangement, and that the result of such an arrangement was the sole cause of damage, if any, to the plaintiff, then you will find for the plaintiff. “If you do not so believe, you will find for the defendants.” It was not necessary for the District Court to go into more detail about the significance of the PWC or the “80-cent clause.” The charge properly instructed the jury on the relationship between the National Agreement and the antitrust laws and what must be shown in this regard to impose liability. G. The Defense of In Pari Delicto, Assumption of Risk of the Conspiracy, Waiver of Rights Arising from the Conspiracy and Estoppel Appellant Consolidation Coal claims error in the District Court’s instruction on its various defenses. Particular emphasis is assigned to the alleged error in the District Court’s instruction on the defense of in pari delicto. With reference to this defense, the District Court charged the jury that: “Now, the defendants here say that, admitting all of these things for the sake of argument, as we put it, whatever damage came, to the plaintiff, that he was a part of it. “He can’t claim anything against the coal operators because this arrangement which they had with the UMW had his approval and endorsement, that he was a member of the BCOA — Bituminous Coal Operators Association — that drew up the .contract, and that he was a sponsor of it and, therefore, if he got hurt by it, if it was wrong, he was helping in a wrong, ‘impari delicto’ (sic) they call it. That is equal guilt. “A person who is of equal guilt cannot claim that he has been wronged by other people who assisted or collaborated with him on the same project. “The defendants have entered the defense of ‘in pari delicto’ — this means that the defendants say that if an unlawful conspiracy existed, plaintiff was equally responsible with defendants in the formation of said conspiracy. . “Under this defense, the Court charges you that if the plaintiff was a co-initiator of the conspiracy and equally responsible therefor, plaintiff is not entitled to recover damages for that period of time that the plaintiff remained a party to the conspiracy. “Now, a person may be a party to such an arrangement, be ‘in pari delicto,’ but he can withdraw from that. You are not once brushed with tar that you can’t get rid of. “So, even though you may believe that he did do this, that he was in this arrangement, entered into this contract for the purpose of putting other operators out of business, yet, if you believe that he withdrew from and he got out of it and if you find that the defendants were more responsible than. the plaintiff for the formation of the conspiracy, plaintiff may recover, even though it was a party to the conspiracy, even though South-East Coal Company was a party to the conspiracy. “Even though you may find that plaintiff was a party to the conspiracy and if you find that plaintiff withdrew from the conspiracy and sought to avoid the effects of the conspiracy, it may recover damages arising in the period of the case subsequent to such withdrawal.” This charge more than adequately instructed the jury with respect to the defense of in pari delicto, and the effect South-East’s participation in the conspiracy would have on the amount of damages recoverable if termination of its part in the conspiracy did not occur. The only difficulty with the instruction is that perhaps it should not have been given at all. Recent cases have tended to indicate that for reasons of public policy the defense of in pari delicto is not available to a defendant in certain types of antitrust cases. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L. Ed.2d 982 (1968); Gaines v. Carrollton Tobacco Board of Trade, Inc., 386 F.2d 757 (6th Cir. 1967); Sahm v. V-1 Oil Company, 402 F.2d 69 (10th Cir. 1968). However, since it has been concluded that the instructions given on this defense were correct, it is not necessary to reach the question of whether the type of antitrust conspiracy involved in this ease falls into the category of those antitrust conspiracies in which the defense of in pari delicto is available. Consolidation’s request for instructions on its defenses of assumption of risk of the conspiracy, waiver of rights arising from the conspiracy and estoppel were properly rejected by the District Court. While these defenses might be proper in certain negligence and contract cases, there is no evidence that Congress intended that these defenses could be set up by analogy as a defense in an antitrust case. Furthermore, even if these defenses were available, it appears that they would be subsumed in the more inclusive defense of in pari delicto. H. Instructions Dealing with the Issue of Bad Business Judgment Consolidation also claims that the District Judge negated one of its primary contentions with certain remarks made in the instructions. The primary contention allegedly negated by the District Judge’s statements was that much of the injury South-East sought recovery for did not result from the antitrust conspiracy but rather was caused by a “serious mistake in judgment in building a cleaning plant costing $5 million and at a point some one hundred twenty-five miles from the mine * * * ” The remarks made by the District Judge concerned only in a very general fashion the importance of a cleaning apparatus in processing bituminous coal and the expensiveness of such a device. There was copious testimony at trial on both sides of the issue of whether the building of the cleaning plant by South-East was or was not a mistake in business judgment. The alleged prejudicial statements on this matter were made at the very beginning of the charge during a general discussion of the bituminous coal industry when the meaning of certain jargonistic words and phrases used in the coal industry and at the trial were explained to the jury. Towards the end of the instructions, the Judge charged the jury on appellant’s bad business judgment theory of the cause of SouthEast’s injuries. He stated: “The defendants take the position that the (conspiracy did not cause plaintiff’s injuries) * * * (but the injuries were) the result of either mismanagement, over expansion, economic conditions, or a combination of these, with possibly other circumstances, to none of which either of these defendants had any part. “That is the theory of the defendants here, that by building this cleaning plant at Irvine, that there was a significant miscalculation of its cost of construction, more than a million dollars it anticipated to cost; that it was 125 miles in haul from the mines to that plant, which was an additional expense and contrary to good coal production management, and that by loss of the sale of coal through no fault of Consolidation Coal Company, but through the failure of the plaintiff to exercise orthodox business acumen; that that is what caused this plaintiff to lose money, and that through its own failures and no reason to accuse either of these defendants to have committed wrongful acts; the financial problems of the plaintiff arose from its own actions and its own failure to exercise good business judgment in the face of advice on the part of Consolidation Coal Company, according to Mr. Tucker, I believe, who was the witness — is that his name? Appellants’ Counsel: “Cassidy..” The Court: “The last witness who testified. Well, anyway, one of the witnesses for the defendant that he was concerned about the building of this tipple and this cleaning plant, and advised the plaintiff, through its president, Mr. LaViers, and possibly others, that importation from Canada and other places and the use of gas and oil was going to reduce the coal demands thirty-three and a third per cent from locality, or more. Notwithstanding that, this plaintiff proceeded to its development and expansion, and that these defendants were in no way responsible for it. But, due to these circumstances alone, if he had any loss, it was caused by that.” If there was a negation of one of appellant’s theories by the passing remarks made by the District Judge at the beginning of the charge to the jury, it obviously was more than compensated for by the explanation of appellant’s position just quoted. It is concluded that appellants were not prejudiced by certain complained of statements made by the District Judge in his instructions to the jury. II. ALLEGED ERRORS IN EVI-DENTIARY MATTERS A. Evidence of Effects and Consequences of the Alleged Antitrust Conspiracy The appellants challenge the District Court’s ruling on certain evidence offered by South-East which concerned economic conditions in the coal industry in Eastern Kentucky. The evidence was principally statistical and related to such things as: the reduction in the number of miners employed in the coal industry, diminution of population in certain coal producing areas, wage scales in the bituminous coal industry, quantitive fluctuations in coal production in various years, income and losses of certain bituminous coal producing companies. The objection raised to this type of evidence was that it inordinately emphasized alleged “effects and consequences” of the antitrust conspiracy, thereby misleading the jury to believe that the existence of an anti-competitive conspiracy or agreement could be inferred from these conditions. It is argued that this Court’s decisions in Lewis v. Pennington, 400 F.2d 806 (6th Cir. 1968), and Ramsey v. United Mine Workers of America, 416 F.2d 655 (6th Cir. 1969), and the Supreme Court’s decision in United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), specifically rejected the theory that an antitrust conspiracy can be proven by effects and consequences. The argument is not clear, but it appears that objection is not made to the admissibility of this type of evidence, rather that this type of evidence standing alone cannot, as a matter of law, serve as the basis for concluding that an antitrust conspiracy exists. In United Mine Workers of America v. Pennington the Supreme Court stated that a labor union, having concluded a wage agreement with one set of employers, may unilaterally seek to impose the same terms on other employers even though it is believed that “[s]ome employers cannot effectively compete if they are required to pay the wage scale demanded by the union.” United Mine Workers of America v. Pennington, at 665, n. 2, 85 S.Ct. at 1591. It was also observed that “[s]uch union conduct is not alone sufficient evidence to maintain a union-employer conspiracy charge under the Sherman Act. There must be additional direct or indirect evidence of the conspiracy.” United Mine Workers of America v. Pennington, Id. The textual material, not the language of the footnote quoted above, appears in Lewis v. Pennington and Ramsey v. United Mine Workers of America. Appellants’ argument apparently relies upon the language quoted above from the Supreme Court’s Pennington decision. They construe this language to mean that evidence of the effects and consequences of an alleged conspiracy, e. g., statistics showing marginal producers are losing money and going out of business, reduction in the number of individuals employed as coal miners, et cetera, are insufficient to prove an antitrust conspiracy. It cannot be said definitely that appellants’ interpretation of the language in Pennington is either right or wrong. While this Court finds it difficult to construe that particular language in Pennington as appellants have, some support for appellants’ interpretation of that language can be found in Mr. Justice Goldberg's dissenting opinion in Pennington appearing in Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen of North America v. Jewel Tea Company, Inc., 381 U.S. 676 at 714-715, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). Even though the language in Pennington is not decisive, there is a logical basis for appellants’ position. The “effects and consequences” theory is basically a causal argument. That is, a cause (the antitrust conspiracy) has produced certain results or effects (reduction in the number of people employed in the mines, financial losses by marginal producers, et cetera). This type of argument has one chief flaw: The difficulty in isolating a single factor causally responsible for identifiable effects. Often there are intervening and superseding causes which if shown destroy the validity of the argument. The “effects and consequences” theory appellants question appears to simply reverse the usually logical progression from cause to effect by first pointing to certain conditions and then concluding what caused these conditions. In any event, the problem of isolating a particular cause which definitely produced certain effects is still present. The law cannot be that an antitrust conspiracy can be proven by alleged effects and consequences of the conspiracy alone. If the only evidence a plaintiff could produce of an alleged antitrust conspiracy is statistics showing that they and other producers in an industry are losing money while some producers make money; that overall production in the industry is down while profits of certain companies are up; and that employment has dropped off in the industry, the defendants should have a verdict directed for them at the close of plaintiff’s case. Plaintiff would not even have made out a prima facie ease for recovery. Regardless of how accurate these statements might be, they do not apply under the facts of this case. Reviewing the record, it becomes obvious that contrary to appellants’ contention South-East’s case does not rest solely on alleged effects and consequences to prove the existence of the antitrust conspiracy. South-East presented evidence of statements made by UMW and Consolidation officials tending to show that there existed an implied or expressed agreement between the Union and Consolidation; there was evidence of past courses of dealing and performance between itself and Consolidation which were interrupted or changed as a result of Union activity ; there was evidence concerning what happened at bargaining sessions between South-East and the Union which indicated that some agreement other than the National Agreement (the Bituminous Coal Wage Agreement) existed between the Union and certain producers. While the question of the sufficiency of this evidence will be dealt with later, the importance of indicating that SouthEast introduced other evidence from which the existence of an agreement to restrain trade or competition could be inferred, is to show that it did not rely solely on alleged effects and consequences of the antitrust conspiracy to prove its claim. If the only evidence South-East introduced was the statistical evidence referred to earlier, then the case should never have been submitted to the jury. However, this was not the only proof they offered. Evidence of the type which appellants object to is admissible and can be considered by the jury in drawing its conclusion on the issue of liability if there is other evidence which supports the claim. See generally, Local 175 of the International Brotherhood of Electrical Workers v. United States, 219 F. 2d 431 (6th Cir. 1955); Standard Oil Company of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148. Therefore, while appellants’ argument might be correct as far as it goes, it does not apply to the facts of this case. B. Evidence and Statements which Allegedly Personalized South-East Claims Thereby Prejudicing Appellant Consolidation maintains they were prejudiced because certain evidence admitted and statements made at the trial tended to personalize South-East’s claim, that is, gave the impression that it was the claim of the LaViers' family which controls and operates the company. It is contended that this left the jury with the idea that this was a David versus Goliath type controversy, with the LaViers family representing the small South-East Coal Company battling the combined giant forces of Consolidation Coal Company and the United Mine Workers of America. Thus, appellants argue that because of this characterization, the jury’s sympathies had to lie with the underdog South-East Coal. South-East Coal Company, for all intents and purposes, is a family-owned and family-run coal company. Mr. Harry LaViers, Senior, and his son, Harry LaViers, Junior, were the controlling forces behind South-East and made the decisions, either good or bad, for the company. The company, compared to Consolidation, is a small producer of coal and its actions are earmarked with the LaViers’ name. While there was some personalization of the company’s claim by occasional, interchanging of the name plaintiff with Harry LaViers, Senior or Junior, this was no more excessive than might be expected under the circumstances. In addition appellants, partially as a result of the defense of in pari delicto, tended to contribute to any personalization which may have taken place. Conceding that some personalization of South-East’s claim did occur, it is still difficult to accept appellants’ argument that this converted the dispute into a small company versus large company controversy, or appellants’ assumption that a jury’s sympathies always rest with the underdog. Without some additional evidence that appellants were in fact prejudiced by these characterizations, the record does not support these assertions, and it is concluded that no injury resulted. C. Admissibility of Certain Hearsay Statements During the trial, South-East introduced into evidence portions of answers made by the United Mine Workers to written interrogatories. The Union was asked to admit to the authenticity of certain speeches, editorials and statements made by Union officials which were appended to the Union’s answers to the interrogatories, and then parts of these documents were read to the jury. Consolidation objected to and now challenges the admissibility of these statements on the grounds that they were hearsay as against them. (Consol’s objection to the District Court’s refusal to give its requested instruction on this matter was discussed earlier. See, I. Alleged Errors in Instructions: Section E. Instructions Respecting the Use to be Made by the Jury of Certain Hearsay Statements, supra, at p. 778). Consol’s principal contention is that statements of this type are not to be admitted until “[t]here is independent evidence establishing, prima facie, that such others were members of the conspiracy.” Standard Oil Company of California v. Moore, supra. The general rule is that this type of evidence is admissible, however, subject to exclusion if no prima facie case of the existence of the conspiracy is established. The question of conditional admissibility is for the trial judge to determine. Carbo v. United States, 314 F.2d 718 (9th Cir. 1963). There is no error in conditionally admitting the statements before a prima facie case was established by independent evidence if subsequently such a case is proven, because the trial judge has wide discretion over the order of proof. Pennington v. United Mine Workers of America, 325 F.2d 804, 817 (6th Cir. 1963), reversed on other grounds, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Flintkote Company v. Lysfjord, 246 F.2d 368, 378 (9th Cir. 1957), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46. At the close of plaintiff’s case there had been established by independent or disassociated evidence a prima facie case, thus the requirement for having conditionally admitted the statements was met. D. Sufficiency of the Evidence Appellants contend that the jury verdict, and the District Court’s denial of their motions for directed verdict and judgment notwithstanding the verdict are in error, as the verdict “is not supported by clear evidence, but is contrary to undisputed facts and applicable legal principles.” Appellants’ argument with regard to the “clear proof” standard has already been discussed. See, I. Alleged Errors in Instructions, Section A. The Standard of Proof Required to Impose Liability, supra, at pp. 772-774. Furthermore, appellants’ arguments on applicable legal principles have also been dealt with, See, I. Alleged Errors in Instructions, pp. 772-785, and what remains is the issue of sufficiency of the evidence. In considering the sufficiency of the evidence, little if any advantage would be gained by an itemized review of plaintiff’s case. Much of the evidence introduced at trial was similar to that used at the trials in Tennessee Consolidated Coal v. United Mine Workers and the retrial of the Pennington case in Lewis v. Pennington. Yet there was additional evidence introduced at the trial having particular significance to South-East’s claim and which tended to emphasize that South-East’s case was unique from either Tennessee Consolidated Coal or Lewis. (A single example is the evidence of the circumstances surounding the cancellation of the sales agency contract between Consolidation and South-East in which Consol acted as sales agent for SouthEast’s coal.) While some of the evidence introduced was circumstantial, which in and of itself might not support the jury’s verdict, there was also direct evidence which, when coupled with the circumstantial evidence, raised plaintiff’s case from one of mere suspicion or conjecture to a level where reasonable minds might have concluded liability upon the part of the appellants. After reviewing the record, it is concluded that there was substantial credible evidence to support the jury’s verdict. The District Court’s decision on this matter was correct and appellants’ motions for directed verdict and judgment notwithstanding the verdict were properly denied. III. ALLEGED IRREGULARITIES WITH RESPECT TO THE JURY A. Mr. LaViers’ Sr. Conversation with Two Jurymen Consolidation contends that the District Court committed reversible error in not declaring a mistrial because of a conversation Mr. LaViers, Sr., of SouthEast Coal, had with two members of the jury outside of court during the trial. The conversation took place in a coffee shop in the hotel where some of the witnesses, jurors, attorneys and parties in the trial were staying. Mr. LaViers was seated by a waitress at a table which was situated next to another table where two jurors were eating breakfast. The District Judge, after examining Mr. LaViers, found that appellants were not prejudiced by this unintentional contact and declined to grant a mistrial. Appellants maintain that the case of United States v. Harry Barfield Company, 359 F.2d 120 (5th Cir. 1966), controls, and a mistrial should have been granted on th