(concurring in part and dissenting in part).
I concur in that part of the opinion of the majority which affirms the judgment notwithstanding the verdict rendered in favor of the carrier members of the Household Goods Carriers’ Bureau.
I earnestly dissent from that portion of the opinion which vacates the judgment against the Bureau and remands the case for a new trial.
Upon an unusually extensive study of the record and briefs in this case I am thoroughly convinced that Terrell proved his case, and he should not be deprived of his verdict. To reverse a judgment for |1,125,000, rendered after a lengthy trial, is a serious matter. One cannot concur in such a result except upon the conviction that the law requires it — and I remain wholly unconvinced.
With deference to the views of my distinguished Colleagues, I do not fully comprehend the real basis upon which they have decided this case. The major point raised by the Household Carriers’ Bureau is that its motions for directed verdicts and for judgment notwithstanding the verdict should have been sustained. The majority opinion does not address itself to this issue. It is left in something of a judicial never-never land. The Court does remand the case for a new trial, whereas if the appellant had been entitled to a directed verdict or to a judgment notwithstanding the verdict the judgment here would have been to reverse with directions that a judgment be entered for Household. If Terrell had not proved a case in the court below such a reversal with directions would, in my opinion, be mandatory. I suppose that these contentions are therefore subjected sub silentio. I would unequivocably decide the issue and would hold in plain and certain terms that Household was not entitled to either the directed verdict or to a judgment notwithstanding the verdict.
In the second place, I am unable to follow the reasoning of the Court as to the Wyche letter. The opinion holds that the letter was admissible in evidence but it later holds that the objection to the admission of the “false” parts of the letter should have been sustained. It was the publication of this letter and its distribution among members of the Oil Field Haulers Association and Rocky Ford Van Lines that caused a lack of confidence in Terrell and ultimately eliminated him as a Directory competitor. The letter was relevant to the purpose and intent of Wyche, acting for the Bureau, when he set about destroying competition from Terrell. Certainly, a more malignant purpose and intent is to be inferred when a writer stoops to falsehood instead of confining himself to the restraints of *55truthfulness. Amazingly, the majority opinion emphasizes the argument of counsel with respect to this letter although that argument was not objected to in the court below, nor was it directly attacked on this appeal.
As a matter of fact, the appeal raised only four points: (1) That the trial court erred in its denial of Bureau motions for a directed verdict and a judgment notwithstanding the verdict, (2) That the verdict had no foundation in law, and, in any event, was clearly excessive, (3) That the trial judge made such prejudicial comments throughout the trial as to deprive the defendant of a fair trial; and (4) That certain of the Court’s instructions to the jury amounted to reversible error. By and large, the case is decided outside the context of these assignments.
Not only did the trial court tell the jury, as the majority opinion indicates, that Terrell could not recover anything for libel but counsel stated as much in his oral argument. The jury could not have been misled on this point and it goes contrary to all appellate procedure to reverse a judgment because of an argument that was not objected to either below or here.
Under the proof in this case, I am of the opinion that the verdict of the jury should not have surprised anyone. Terrell showed the existence of the monopoly, the vigorous efforts of Household and Rand McNally to preserve that monopoly, that Terrell’s Directory, so often on the verge of success, was destroyed by his competitors, and the monopoly remains intact, to the disadvantage of the shipping public.
Let me elaborate upon the evidence.
The defendant, Household Goods Carriers’ Bureau, organized pursuant to the Reed-Bulwinkle and Interstate Commerce Commission Acts, is an organization of about 1,700 member carriers [of household goods] for whom the Bureau files a joint tariff with the Interstate Commerce Commission under § 5a of the Interstate Commerce Commission Act. Each carrier was required to file a tariff with the ICC. To accomplish this, the members executed a power of attorney in favor of the Bureau. The Bureau also publishes for its members a national mileage guide, which is a tariff publication, containing maps and charts for the determination of highway distances between principal points in the United States. It is from these mileage tables that transportation charges are computed by all 1,700 carrier members of the Bureau.
Beginning in 1936, the Bureau has filed annually with the ICC a national mileage guide, which was and is compiled by Rand McNally. Until 1961, when Terrell began compiling his national guide, the Bureau and Rand McNally enjoyed a virtual monopoly in the field. The compilation and computations were done by Rand McNally, but the Bureau gave instructions as to those routes to be used in computing distances. For example, certain roads were omitted for purposes of mileage computations [“greened out”] but these roads nevertheless were actually used by the carriers in transporting goods. Since the guide, was only a tariff publication and did not bind a carrier to take any particular route, the net effect often was that, by using the Bureau guide, the charge would be for a longer distance than the truckers actually traveled. The guide, of course, served the additional purpose of causing all carriers to use the same rate for transporting goods between any two given points.
The Bureau had an agreement with Rand McNally to purchase a minimum number of guides for sale to its members. (For Guide No. 7, the Bureau agreed to purchase 22,500 copies at $8.-95). After the Bureau purchased the minimum number, they could purchase reprints at a discount — $6.20 per copy. These guides were a major source of revenue for the Bureau. In 1962, the Bureau received $257,000 from the sale of these guides.
In addition to the sales to the Bureau, Rand McNally was allowed to sell the mileage guides to any carrier or person *56who wished to purchase them. Rand Mc-Nally agreed, however, that other purchasers would have to pay a price higher than the Bureau paid. In fact, the Bureau told Rand McNally that they were, under no circumstances, to sell the guides to an independent agency for less than $7.70 per copy — later raised to $9.75 by Rand McNally. By a second agreement, the Bureau would personally negotiate orders with agencies in New York and the Independent Movers and Ware-housemen, and Rand McNally would deal with all others. These sales by Rand McNally were credited against the Bureau’s minimum obligation.
In 1961, Terrell began compiling his national mileage guide. Prior thereto he had compiled a guide covering the State of Texas. That guide was used by the State and by irregular route common carriers in Texas to compute intrastate rate charges.
Terrell also had entered into an understanding with Rand McNally to compute mileages for them. Several of Rand Mc-Nally’s employees visited Terrell in Texas and expressed interest in various systems he used for computation. During his association with Rand McNally, Terrell learned that the Bureau checked the maps and greened-out certain roads before the maps were sent to him. He was told that key points could not be added to the maps without the Bureau’s permission.
Disagreement later arose between Rand McNally and Terrell (before completion of their agreement) and Rand McNally cancelled the order. (At trial, Rand McNally contended that the order was cancelled because Terrell’s computations were highly inaccurate; Terrell claimed that Rand McNally failed to furnish him with the necessary maps).
While he was preparing his Texas guide and was working for Rand Mc-Nally, Terrell was constantly besieged by truckers who requested a new guide. He became convinced that there was a real need and demand for a competing guide. Since Rand McNally published its guide only every five to seven years, Terrell hoped to attract new customers by publishing his guide more frequently.
So, in 1961, at the request of the Oil Field Haulers Association, another tariff agency, Terrell began computing his own national mileage guide, confident that a ready market existed. The Oil Field Haulers had formerly used the Rand Mc-Nally guide but became dissatisfied with it because it was not issued frequently enough and because of its “green-out” procedure. Terrell agreed to publish. every two years a guide for the Oil Field Haulers Association. He testified that he made the agreement with the Association (knowing he would lose $17,000) because he was convinced that if one household carrier accepted it, he could sell 50,-000 copies.
In his guide, Terrell used methods to compute mileages different from Rand McNally. For instance, since the Rand McNally guide was used primarily by truckers, it used the “green-out” method to delete from computation those roads unsuited for truck traffic. In his guide, Terrell used all weather roads in the state and federal highway systems, including parkways. He computed distances from several maps and if it was reliable used the shortest distance in his actual computation. Terrell also included in his guide a military tie-on section, which computed distances from military installations to other points. Taken together, Terrell’s methods, frequently resulting in shorter distances between points than the Rand McNally guide, made his guide well suited for certain users, e. g., the government, in determining travel allowance for servicemen and in transporting household goods for military personnel.
Terrell completed the guide and had it filed with the Interstate Commerce Commission.
After publishing his new national guide, Terrell began an attempt to sell the guide to the United States Government for its use in transporting military personnel. He was referred to the government’s Finance Center in Indianapolis, Indiana, and submitted a proposal to *57them in July, 1963. Prior to this time officials of the Finance Center had used an Official Table of Distances in conjunction with the Rand McNally guide to compute distances.
After Terrell presented his proposal, Mr. Benjamin of the Finance Center made a preliminary evaluation and noted that the Rand McNally guide had nothing comparable to Terrell’s military tie-on section. Thereafter, Benjamin conducted a thorough investigation on the relative merits of the two guides, visiting both Rand McNally’s and Terrell’s businesses. When he visited Rand McNally, one of its employees, Mr. Hermes, told Benjamin of prior experience with Terrell, stating that Terrell did not have a basic set of updated maps and that “any other approach to computing a mileage guide was invalid”. Hermes further expressed the belief that Terrell had taken the Rand McNally guide and arbitrarily substracted distances from it for use in his own guide. Paradoxically, Hermes also told Benjamin that since the Rand McNally guide had “greened-out” routes which could be used by cars, it was not the one the Finance Center should be using. Nevertheless, he tried to convince Benjamin that Rand McNally could produce the guide he was looking for.
Following the investigation, Benjamin submitted his report. In it, he' stated that on October 4, 1963, Rand McNally had furnished a report which contained “very critical comments concerning Mr. Terrell’s ability to produce an accurate mileage table” and which stated that Terrell’s table was little more than a “guesstimate” of actual mileages. Benjamin, however, disagreed with Rand Mc-Nally’s appraisal of Terrell’s guide and recommended that it be adopted. He found that by using Terrell’s guide, the government could save in excess of $5,-800,000 annually.
During the period when Terrell sought acceptance of his guide by the Finance Center, Mr. Wyche, Executive Secretary of the Household Goods Carriers’ Bureau, began receiving letters from carriers which were favorable to Terrell’s guide. These letters expressed a desire that the Bureau adopt something similar to Terrell’s military tie-on section. The carriers also began making inquiries about the excessive number of errors (estimated at 27,000 by Mr. Wyche) in the latest Rand McNally-Bureau guide.
In January, 1964, Rocky Ford Van Lines, a member of the Household Goods Carriers’ Bureau, sought permission from Mr. Wyche to change from the Bureau’s guide to Terrell’s guide. Ford, like the Oil Field Haulers Association, was particularly dissatisfied with the “green-out” procedures used in the Bureau guide. After discussing the matter with several members of the Bureau’s Board of Directors, Wyche responded to Rocky Ford by letter, making the following comments: (1) He was “amazed that the [Terrell] guide was ever permitted to be filed with the Commission [ICC] because of conflicting information contained therein”; (2) He felt that the distances used by Terrell in this guide were not independently computed but were obtained from the Bureau guide and then reduced five, ten, or fifteen miles (Wyche had actually made a comparison of only about 50-200 distances and had spent no more than an hour examining Terrell’s guide); (3) He expressed doubt as to whether the distances used by Terrell could be computed scientifically or confirmed by existing highway routes; (4) He commented on the growing competition :
“We are quite concerned with respect to a competitive condition arising by, movers particularly, utilizing some other method of mileage determination that we get to a point with the moving industry wherein carrier’s rates, by reducing mileages, will create utter confusion within the industry.”
(5) He announced plans to file a complaint with the ICC and to request an investigation as to the methods used by Terrell; and (6) He urged Rocky Ford to reconsider its decision to change guides.
Despite Wyehe’s urgings, Rocky Ford Van Lines did not alter its decision, and *58the Bureau, after being directed by the ICC as to the correct method for making the change over, complied with Rocky Ford’s request. However, Howard Ford, the part owner of Rocky Ford Van Lines, became concerned with what Wyehe said in reference to Terrell’s guide. He called the Oil Field Haulers Association, read the letter to them, and sent a copy to them.
Wyche testified that he felt that as long as the Terrell guide was filed with the ICC, it constituted a “threat” to the Bureau. He was particularly concerned because Terrell’s guide contained lower mileages, which could cause a competitive situation to develop. Wyche did not think such a situation would be permitted by the carriers. In the event of another guide, he felt the Bureau’s Board of Directors would instruct the Bureau to file the identical guide or adjust rates to offset the differences with the competitive guide.
Carl D. Stoune, President of the defendant Central Forwarding, Inc., also expressed concern with the development of a competitive situation by the use of more than one mileage guide.
Rocky Ford’s primary purpose for changing guides was to use it in competition for military household goods shipments. The Defense Department’s long standing policy had been to ship by the approved carrier with the lowest overall cost. However, since all carriers used the Rand McNally guide, under various covers, the same rates were quoted, so the government used an “equitable distribution system”, awarding shipments rateably to the various carriers.
By using Terrell’s guide, however, Rocky Ford often quoted lower rates, thus giving the carrier reason to believe that it could gain a significant portion of the military business.
When the Transportation Officer at Fort Sam Houston, Texas, did not award shipments claimed by Rocky Ford, Terrell had a Member of Congress arrange a meeting with Defense Management Transit Service (D.T.M.S.). Mr. Ford and Mr. Terrell’s attorney, Mr. Babb, traveled to Washington, D. C. to confer with D.T.M.S., asking that Rocky Ford be allowed to claim those hauls in which it was the low cost carrier. Colonel Branigan, Director of Household Goods in D.T.M.S., was initially impressed with Mr. Ford’s argument and implied that if Terrell’s guide were accepted, other carriers would begin using it. The proposal was taken under advisement.
Meanwhile, representatives of Rand McNally wrote two United States Senators, complaining of political pressures used by Terrell to get D.T.M.S. to change guides. Both Senators wrote D.T.M.S., speaking favorably of Rand McNally.
While the Terrell proposal was under consideration, D.T.M.S. held a meeting on the subject at which Mr. Wyche was present. Wyche argued that the use of Terrell’s guide would increase administrative costs by requiring the Transportation Officer to check both guides on each shipment to determine the low cost carrier. He also commented on the inaccuracies in the Terrell guide and expressed doubts about Terrell’s ability to produce such a guide. In reply to Mr. Wyche’s charge of higher administrative costs, Mr. Ford contended that it was the carrier who made the rate calculations and submitted them on a bill of lading to the Transportation Officer, who then only checked them. In any event, a particular route would have to be checked only once; thus minimizing any administrative costs.
D.T.M.S., without making actual cost studies, followed Wyche’s suggestions and retained the “equitable distribution system”.
About the time of the D.T.M.S. ruling, Terrell’s attempt to get his guide accepted at the Finance Center suffered a similar fate when the Defense Department declined to follow the Finance Center’s recommendation that Terrell’s guide be used for computing military travel allowances.
After publication of the “Wyehe letter” and its distribution to members of *59the Oil Field Haulers Association, that Association called on Terrell to refute the accusations and criticisms made in the letter. Terrell testified that his relationship with the Association changed drastically after publication of the “Wyche letter”. Mr. Boyd, Secretary of the Oil Field Haulers Association, testified that the letter was “the beginning of what now has developed into a full-blown picture of lack of trust and confidence [in Mr. Terrell]”. Boyd was especially distressed about Wyche’s threat of filing a complaint with the ICC.
Terrell met a second time with the Oil Field Haulers Association’s Board of Directors. At this meeting, Terrell’s earlier agreement with them was formalized, put into writing, and predated. In it, Terrell agreed to compute the guide for $20,000 per publication. Terrell prepared the maps and computations for the second guide and had them ready for the printer. The printer, however, was never given directions to proceed, and Terrell was never paid. Terrell also had a tentative agreement with the Association to compute a four state and eight state guide for $54,000. As with the national guide, this agreement did not reach fruition.
Thereafter, Mr. Hermes of Rand Mc-Nally met with members of the Oil Field Haulers Association’s Board of Directors, at their request, to explore the possibility of Rand McNally preparing a guide for them. Members of the Committee expressed dissatisfaction with Terrell’s using tenths of miles in this guide, making the computation too detailed. No agreement with Rand Mc-Nally was ever reached.
Following the series of disastrous setbacks in his attempt to sell his mileage guide, Terrell filed suit against the Bureau and its member carriers, charging it with libel in publication of the “Wyche letter”. The trial resulted in a directed verdict in favor of the individual carriers and a hung jury with regard to the Bureau. After the trial, Terrell and the Bureau entered into a settlement for $10,000, and the suit was dismissed with prejudice.
The plaintiff Terrell alleged that the Household Goods Carriers’ Bureau combined and conspired with Rand McNally and Company to restrain trade and eliminate competition in the sale of national mileage guides in the United States, and illegally monopolized or attempted to monopolize the market for these guides.
Many factors must be considered in determining whether a particular agreement is an unreasonable restraint of trade in violation of § 1 of the Sherman Act. As Mr. Justice Brandéis ably stated:
“[T]he legality of an agreement or regulation cannot be determined by so simple a test, as whether it restrains competition. Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence. The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint is imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are relevant facts.”
Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Other factors may also be considered: The percentage of the business controlled, the strength of the remaining competition, probable developments of the industry, and consumer demands, United States v. Columbia Steel Company, 334 U.S. 495, 527, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948).
Because of the difficulty of formalizing proof in an anti-trust action, circumstantial evidence plays a major role in *60each case. In this instance, the statement of the Supreme Court in American Tobacco Company v. United States, 328 U.S. 781, 809-810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1945) becomes particularly relevant:
“The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealing or other circumstances as well as in the exchange of words. (Citations omitted). Where the circumstances are such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.”
A conspiracy in restraint of trade under § 1 is not dependent on the doing of any overt act other than the act of conspiring, as a condition of liability, United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); Leyvas v. United States, 9 Cir., 1967, 371 F.2d 714.
In this state of the law, applied to the recited evidence, I am of the positive opinion that the jury was justified by circumstantial and direct proof in finding that the appellant, Household Goods Carriers’ Bureau, illegally conspired with Rand McNally to effectively suppress and destroy competition. See Eastman Kodak Company v. Southern Photo Materials Company, 273 U.S. 359, 375, 47 S.Ct. 400, 71 L.Ed. 684 (1927).
Similarly, the jury could reasonably have found, as Terrell alleged, that the Bureau and Rand McNally monopolized this particular business in violation of § 2 of the Sherman Act.
There is no dispute about the existence of the monopoly. The question is its legality. To sustain a finding that the defendant engaged in an illegal monopoly, the plaintiff must prove that the defendant had both the power to monopolize— the power to control prices or exclude competition, United States v. E. I. DuPont De Nemours & Company, 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956) —and the intent to monopolize, United States v. Aluminum Company of America, 2 Cir., 1945, 148 F.2d 416. Once the monopoly power is acquired whether by legal or illegal means the use of that power “to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful”, United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236 (1948). I say that the existence of that power, and the use of that power, in this ease shines with the brilliance of a locomotive headlight upon a wintry midnight.
There can be little doubt here that the Bureau activities deprived the public of the benefit of competitive prices in the shipment of household goods, resulted in injury to the public. Moreover, it is unreasonable per se, even in the absence of public injury, to foreclose a competitor from any substantial market. International Salt Company v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 92 L.Ed. 20 (1947).
Throughout the trial Terrell placed great emphasis on three particular events to establish anti-trust violations by the Bureau. Two of them may be taken together: The attempts by Terrell, at the Finance Center and at D.T.M.S., to obtain approval of his national mileage guide for government use. The Bureau correctly asserts that these incidents, in and of themselves, cannot be considered as evidence of violations of the Sherman Act. The contrary argument was finally disposed of by the Supreme Court in United Mine Workers of America v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 1593, 14 L.Ed.2d 626 (1964), when it held:
“Joint efforts to influence public officials do not violate the anti-trust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.”
However, the appellant fails to note that the Court in Pennington also pointed that
*61“It would * * * still be within the province of the trial judge to admit this evidence, if he deemed it probative and not unduly prejudicial, under the ‘established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis of the suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny. Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 46-47, 31 S.Ct. 502, 55 L.Ed. 619; United States v. Reading Company, 253 U.S. 26, 34-44, 40 S.Ct. 425, 64 L.Ed. 760.’ F. T. C. v. Cement Institute, 333 U.S. 683, 798, 68 S.Ct. 793, 92 L.Ed. 1010.”
Id. at 670-671, 85 S.Ct. at 1593-1594, footnote 3. Under the circumstances of the present case, it was not error for the trial judge to admit the evidence. He instructed the jury in a most careful and thorough manner that the Finance Center and D.T.M.S. incidents could not be considered as anti-trust violations. It must be presumed, then, that the jury followed the Court’s instructions and considered them only as they related to the purpose and character oí the transactions between the Bureau and Rand McNally.
It will be recalled that prior to the initiation of the anti-trust suit, Terrell sued the Bureau and its members, alleging that the “Wyche letter” was libelous. After the trial, which ended with the jury being unable to reach a verdict, Terrell entered into a settlement with the Bureau, and the suit was dismissed with prejudice with the following stipulation:
“That the cost of all depositions taken in this case shall be taxed in favor of the prevailing party or parties in Civil Action No. 1428, in the United States District Court for the Western District of Texas, Austin Division, styled John J. Terrell v. Household Goods Carriers’ Bureau [the antitrust suit] * * * ”
Although this stipulation may not be regarded as a waiver per se of the defense of res judicata, it clearly indicates that parties thoroughly understood that the anti-trust action was to continue, else the stipulation would be an obvious nullity.
In addition, the Court below instructed the jury that they could not allow damages for any injury caused as a result of any false statements in the “Wyche letter”.
Together with its claim that the verdict was without foundation, the Bureau contends that the verdict of $375,000 was excessive. I disagree. In a case such as this, it is impossible to determine damages with absolute certainty. As we have said, “Once the fact of injury is established, the jury has considerable leeway in assessing the amount of damages”, Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 5 Cir., 1967, 383 F.2d 97, 103, 106.
Both Terrell and an accountant testified that he spent in excess of $150,000 to compute and publish the guide.' Terrell also testified that he knew he would lose money on the Oil Field Haulers Association contract, but could gain it back when he got a foothold in the market. He anticipated sales of 22,500 copies and publication every two years. This number, based on the amount purchased by the Bureau, was not clearly unreasonable. Colonel Branigan of D.T.M.S. expressed the opinion that if the Terrell guide were accepted by D.T.M.S., other carriers would change over to it. Mr. Wyche himself stated that if another guide existed which lowered charges, the Bureau would be forced to file an identical guide.
Of course, Terrell never received these benefits and the profits he anticipated were never realized. But had Terrell been permitted to compete and sell his 22,500 guides at $15 per copy, his gross profit would have been $337,500. In addition, Terrell had an agreement to publish a second national guide for the Oil Field Haulers Association for $20,000 and a tentative agreement to publish a four and eight state guide for $54,000. Because of the defendant’s activities these agreements were never carried out.
*62On the basis of these facts, the verdict of $375,000 was not so clearly excessive as to justify appellate interference.
In view of the foregoing, I would unhesitatingly affirm the judgment of the District Court as to Household Goods Carriers’ Bureau. From our failure to do so I respectfully dissent.