#### TOBACCO AND ALLIED STOCKS, Inc., et al., Plaintiffs, v. TRANSAMERICA CORPORATION, Defendant.

Civ. A. No. 1468.

United States District Court D. Delaware.

Oct. 31, 1955.

Daniel O. Hastings, Stewart Lynch and Clarence W. Taylor (of Hastings, Lynch & Taylor), Wilmington, Del., and Samuel J. Silverman and Edward N. Costikyan (of Paul, Weiss, Rifkind, Wharton & Garrison), New York City, for plaintiffs.

Edwin D. Steel, Jr. and William S. Megonigal, Jr. (of Morris, Steel, Nichols & Arsht), Wilmington, Del., and Gerhard A. Gesell and David E. McGiffert (of Covington & Burling), Washington, D. C., for defendant.

LEAHY, Chief Judge.

There was pretrial stipulation (par. 2 (b)) and order of February 16, 1955, stipulation of April 25, 1955 (pars. 1(c) and 2(c) and 4(b)), and order, as amended by stipulations and orders of June 7 and 20, 1955. Both parties designated certain depositions, exhibits, and pleadings, originally found in analogous litigation,1 to be offered in evidence in the *356present case. Each party objected to the profert of the others. Objections of plaintiffs and defendant are too varied to be dealt with specifically. Plaintiffs argue the evidence to which they object should be excluded from a consideration of the merits of the special defenses but the evidence designated by plaintiffs to which defendant objected should be considered admissible. Vice versa defendant makes the same profert and objections.

On these pretrial matters the parties spent themselves. They filed 8 briefs. An appendix is attached which points out the pagination of the 8 evidence briefs concerning the various categories of evidence which each party proffered. I have read more than 140 pages of briefs on what seems to me a worship of the inconsequential. A non-jury case calls for the analytic fact-finding processes of a trained judge. Any and all evidence which has direct or remote relevance to the subject of judicial examination should be looked at before the judge makes his decision.

The profert of both plaintiffs and defendant of their items of alleged proof will be accepted and considered admissible. Both of their objections to each other’s profert are overruled.

If counsel think an order is necessary for the record they may submit one on the basis of this memorandum.

Appendix

I. Exhibits and testimony taken in the instant case and objected to by plaintiffs:

A. Plaintiffs’ brief (green back), filed May 9, 1955 (entire brief).

B. Transamerica’s answer: pp. 2-19 of brief filed June 29, 1955 (blue back).

C. Plaintiffs’ reply: pp. 5-13 of brief filed August 25, 1955 (blue back).

II. Exhibits and testimony taken in the instant case and objected to by Transamerica:

A. Transamerica’s brief (blue back), filed June 29, 1955, pp. 27-32.

B. Plaintiffs’ answer: pp. 19-25 of brief filed August 25, 1955 (blue back).

C. Transamerica’s reply: pp. 7-9 of the instant brief, filed September 30, 1955.

III. Material from the records of the Speed, Zahn, Friedman cases (this material has been designated under two different Orders of this Court: (1) Order dated January 18, 1955 relating to admissibility to prove truth of statements made and (2) Order dated April 25, 1955 relating to judicial notice that certain statements, etc., were made. Since the same subject matter is involved, references to the briefs filed under each Order are here consolidated).

A. Material designated by plaintiffs.

1. Transamerica’s objections: pp. 19-27 of brief filed June 29, 1955 (blue back).

2. Plaintiffs’ briefs in support and answer: pp. 13-19 of brief filed August 25, 1955 (blue back).

3. Transameriea’s replies: pp. 5-6 of brief filed August 25, 1955 (yellow back) and pp. 2-7 of the instant brief, filed September 30, 1955.

B. Material designated by Transamerica.

1. Plaintiffs’objections: entire brief filed June 29,1955 (green back).

2. Transamerica’s briefs in support and answer: pp. 2-4 of brief filed August 25, 1955 (yellow cover) (see also instant brief, pp. 2-7).

3. Plaintiffs’ reply: filed September 30, 1955.

1

. The allied litigation may be found in Geller v. Transamerica Corp., D.C.Del., 53 F.Supp. 625, 63 F.Supp. 248, affirmed 3 Cir., 151 F.2d 534; Zahn v. Transamerica Corp., D.C.Del., 63 F.Supp. 243, reversed 3 Cir., 162 F.2d 36, 172 A.L.R. 495; Speed v. Transamerica Corp., D.C. Del., 5 F.R.D. 56, 71 F.Supp. 457, 103 F.Supp. 47; Friedman v. Transamerica Corp., D.C.Del., 63 F.Supp. 247, 5 F.R.D. 115; Speed (Friedman and Zahn) v. Transamerica Corp., D.C.Del., 99 F. Supp. 808, 100 F.Supp. 461, 100 F.Supp. 463, and 135 F.Supp. 176.

Decisions in the present litigation are reported in D.C., 16 F.R.D. 534; D.C., 16 F.R.D. 537 and D.C., 16 F.R.D. 545.