Before SPARKS, Chief Judge, MINTON, Circuit Judge, and SWYGERT, District Judge.
MINTON, C.J.: In one aspect or another of this case, the parties to this appeal have been here twice before. The previous opinions are reported in 150 F.2d 877, reversed and the District Court affirmed in 327 U.S. 251, 66 S. Ct. 574, 90 L. Ed. 652; and in 162 F.2d 520, certiorari denied, 332 U.S. 817, 68 S. Ct. 158, 92 L. Ed. 79. In the latter case, known as the equity case, a decree was entered against the respondent-appellant. In the proceedings now before us, the respondent was charged with and found guilty of contempt of court for a violation of that decree. From a judgment for contempt, the respondent has appealed.
The pertinent part of Section VII of the decree in the equity case is as follows:
"VII. That defendants * * * their respective officers, directors, agents, servants, employees and all persons acting or claiming to act on behalf of them or any of them, be and they are enjoined from delaying the exhibition of any motion picture in the Chicago Exchange territory by permitting a run of such picture longer than two weeks on a first run in a theatre owned, leased or operated by any defendant * * * or by creating dead or waiting time between the conclusion of the first run of a picture in any such theatre in such territory and the next succeeding run of said picture * * *."
The respondent licensed the picture "Tycoon" to the Palace Theatre in the Chicago Exchange territory and refused to license it to anyone else for twenty-three days after its first run was concluded by the Palace Theatre. Dead or waiting time of twenty-three days was thus created by the respondent. This was a violation of the court's order if the respondent owned, leased, or operated the Palace Theatre. If the respondent did, as the District Court found, operate the Palace Theatre, it is conceded that the other elements necessary to a finding of contempt are present.
The original suit was for treble damages and an injunction against the respondent and others for a violation of the Sherman Anti-Trust Act. The defendant there and respondent here, RKO Radio Pictures, Inc., was the only corporation of the RKO hierarchy of corporations that was a party to that suit. In his opening statement to the jury at the time of the damage suit, counsel for the respondent said:
"Here in Chicago they (respondent) do not have any theatres, except that RKO has two theatres in Downtown Chicago, the Palace Theatre and the Grand Theatre."
The District Manager of the respondent, testifying at that trial, said:
"We have our own theatres in the Loop."
"Q. You sold your first Loop release to your own theatres?"
"A. All I know is that our Company that our District Manager for the Theatre Department is operating the theatre * * *."
The Western Division salesman for the respondent testified on the original hearing that the Palace Theatre was owned by RKO.
When the original case was appealed to the Supreme Court, the record there induced Chief Justice ...