1. In an action to enforce reparation awarded a shipper by the
Interstate Commerce Commission as damages resulting from unfair
practices of the defendant carrier in the distribution of coal
cars, the findings and order of the Commission are
prima
facie evidence of the facts therein stated. P.
257 U. S.
90.
2. In such an action, the award, though its amount appear by the
Commission's own record to have been calculated upon an erroneous
basis, (
see s.c.
242 U. S. 242 U.S.
89) may be sustained by evidence before the Commission,
supplemented at the trial, tending to prove that damages equal to
the award resulted from the unfair practices condemned by the
Commission, as shown by its report. P.
257 U. S.
91.
269 F. 111 affirmed.
Error to a judgment of the circuit court of appeals which
affirmed a judgment for damages entered upon a verdict in the
district court in an action to enforce a reparation order of the
Interstate Commerce Commission.
See s.c.
242 U. S. 242 U.S.
89.
Page 257 U. S. 86
MR. JUSTICE DAY delivered the opinion of the Court.
This cause has been the subject of much and long continued
controversy. This is its third appearance in this Court. The
previous history of the litigation is set out in
242 U. S. 242 U.S.
89. The action is based upon a reparation order made by the
Interstate Commerce Commission in favor of Jacoby & Co. A
recovery was had in the sum awarded by the Commission, with
interest. At the first trial, plaintiffs did not introduce the
record of the testimony before the Commission. The defendant
railroad company introduced testimony tending to show that the
Commission, in making its award of damages, had used a table,
attached as Exhibit 10 to the record of the case, showing a
discrimination of the railroad company against the plaintiffs in
the distribution of coal cars in times of shortage, and produced a
witness who testified that the effect of the use of the percentages
in that table as the basis of awarding damages by the Commission
was to give plaintiffs the undue preference in the distribution of
coal cars which favored shippers had received. That being so, this
Court held that the recovery of a sum thus arrived at would defeat
the purpose of the act to place shippers on a basis of equality.
For the refusal of the trial court to give a charge based upon such
use of the table, the judgment of the Circuit Court of Appeals for
the Third Circuit, affirming that of the district court, was
reversed, and the cause remanded for a new trial. The second trial
in the district court resulted in a verdict and judgment for the
plaintiffs in the sum awarded by the Commission with interest.
Weber v. Pennsylvania R. Co., 263 F. 945. That judgment
was affirmed
Page 257 U. S. 87
by the circuit court of appeals, 269 F. 111, and the case is
again here.
We need not repeat the discussion concerning distribution of
cars in times of shortage which was held to result in undue
advantage.
See 242 U.S.
supra at
242 U. S. 90-91;
Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 19 I.C.C.
362, 363-364.
At the last trial, the testimony before the Commission was put
in evidence, with some additional testimony tending to show that
plaintiffs had been discriminated against because of the special
allotment to the Berwind-White Company of 500 cars daily, and the
sale to it, and to other companies, of a large number of cars in
times of car shortage. There was evidence tending to show that, but
for these discriminations, the plaintiffs would have received a
sufficient number of cars to furnish them with all they needed
during the periods complained of.
The Commission, in the report, condemned the practice of giving
to the Berwind-White Coal Company 500 cars daily by special
allotment, and the selling of the company's own cars during the
same period to favored shippers, thereby diminishing its capacity
to supply the coal car requirements of other coal companies along
its line.
When the Commission came to assess damages, it allowed the
plaintiffs $21,094.35, with interest from January 28, 1907. The
order on which this award was made is set forth in 242 U.S.,
supra. Upon the new trial, with the additional testimony
and the whole record of the Commission introduced in evidence, the
judge, after charging the jury that there might be a recovery if
the discriminations alleged and proved resulted in damages in the
sum awarded by the Commission, charged:
"If you should find that the conclusion of the Interstate
Commerce Commission that the plaintiff in the year ending April 1,
1905, should have received cars equal in
Page 257 U. S. 88
capacity to 59.9 percent of the aggregate of their mine's daily
rating, and in the period between April 1 and October 18, 1905,
cars equal in capacity to 59.6 percent of the aggregate of their
mine's daily rating -- if you should find that that conclusion was
reached or arrived at because of the evidence presented by the
plaintiff that the aggregate of the cars placed by the defendant at
certain mines which had been selected for the purpose of comparison
from those comprised in the region in which the plaintiff's mine
was located, had been equal in the earlier period to 59.9 percent
and in the later period to 59.6 percent of the aggregate ratings of
these selected mines [these being the percentages of cars given to
preferred companies as shown in Exhibit 10] for the basis of the
Commission's conclusion, then the award was an erroneous one, and,
under those circumstances, the finding of the Commission would lose
its effect as
prima facie evidence, and you would only be
justified in finding for the plaintiff if you find that, from the
other evidence offered before the Commission either of
discrimination through distribution to favored shippers in the
Tyrone region or through withholding cars from the Tyrone region
which should have been distributed there, the Commission was
justified in arriving at that conclusion. If you find that the
Commission was justified in arriving at that conclusion, or are
satisfied from that evidence, and that evidence is reinforced by
further evidence that the plaintiff has offered in the case, then
you would be justified in finding a verdict in favor of the
plaintiff and assessing damages at the amount found by the
Commission."
"If, however, you should find that that was an erroneous
finding, then it would be your duty to find to what extent the
plaintiff was damaged; I mean, in case you find that the plaintiff
was actually damaged, you would have to find to what extent the
plaintiff was actually damaged. If you leave out the evidence
before the Commission the,
Page 257 U. S. 89
court is unable to say that there is any other evidence,
standing alone, which would be sufficient, but the evidence which
was before the Commission has all been offered before you, and some
additional testimony. The proper basis of damages in that case, if
the Commission has not reached the proper basis, would be upon the
theory set out in the Commission's report, but not based on a
comparison between what the favored shippers received and what the
plaintiff received."
"If the plaintiff is entitled to recover and has suffered
damages, the measure of damages would be the loss in operating,
upon the coal that was actually shipped through discrimination in
favor of other shippers, together with the profits it would have
made on the coal they would have been able to ship. The question as
to what coal they would have been able to ship is a question for
you gentlemen to decide under the evidence in this case. You have
had the schedules laid before you, counsel have argued the case to
you and explained the grounds on which they respectively base their
demand on the one side and the defense on the other, and the
questions of fact are for your determination. The defendant has
offered in evidence, and has shown you these facts, in regard to
the 59.9 percent and the 59.6 percent, and as I have already
instructed you, if you find the Commission's finding was based on
that, then the Commission's finding as to the amount of damages
suffered should not be considered by the jury, but the jury will be
obliged independently, if they can do so, to arrive at a proper
amount of damages."
"If the jury do not believe that the plaintiff suffered any
damages or do not believe that they were discriminated against in
favor of other shippers either by the distribution of cars that
were sent into this region or by the failure of the railroad
company to send cars to the Tyrone region which should have been
distributed there, then it
Page 257 U. S. 90
would be your duty to find a verdict in favor of the
defendant."
As there was substantial testimony in the record to support the
finding of the Commission in awarding damages in a sum at least
equal to the amount assessed by it, the principal question to be
decided is: may a plaintiff recover in such circumstances in a suit
based upon a reparation order of the Interstate Commerce Commission
when there is testimony fairly tending to show that recovery was
justified because of unfair practices in the distribution of coal
cars in times of shortage, which practices, as its report shows,
were condemned by the Commission, although it may appear that the
sum awarded by the Commission was actually based upon an erroneous
calculation?
In determining the rule to govern this situation, we must bear
in mind that the Commission is empowered to act upon questions of
unfair practices and discrimination.
Pennsylvania R. Co. v.
Clark Co., 238 U. S. 456, and
the previous cases in this Court, cited at p.
238 U. S. 469.
While this is true, when an action is brought upon a reparation
order of the Commission, as it may be under § 16 of the Act to
Regulate Commerce, its findings and order are
prima facie
evidence of the facts therein stated.
Meeker v. Lehigh Valley
R. Co., 236 U. S. 412;
Second Meeker Case, 236 U. S. 434;
Mills v. Lehigh Valley R. Co., 238 U.
S. 473. These cases have disposed of the question of the
right of the defendant to attack the
prima facie value of
the award, and have dealt with the nature of the award of the
Commission in view of the statutory provisions as to its
character.
That the Commission used a wrong basis in awarding damages, now
that the whole record is before us, admits of no doubt. Indeed, the
coincidence in the award made and the use of the percentage table
shown in Exhibit No. 10 is difficult to account for except upon the
basis pointed
Page 257 U. S. 91
out by the witness introduced by the defendant, whose testimony
was made the basis of the request to charge, the refusal of which
led to the reversal of the judgment in 242 U.S.,
supra.
The defendant in error argues that the Commission could not have
used this table, because it covers a different period of operation
as evidenced by the number of days shown than the Commission found
to have been the period covered by the operation of the plaintiff's
mine. Nevertheless, the coincidence of percentage and award
remains, and the conclusion is inescapable that the Commission in
determining the sum awarded used percentages which had the effect
of placing the plaintiff on a basis of equality with the favored
companies. On the other hand, there is testimony tending to show
that, had the cars been distributed upon a basis of general
equality approved by the Commission, and without resort to
practices condemned by it, there would have been cars enough to
have furnished plaintiffs with a sufficient number to meet their
trade and requirements during the period in question. Under the
circumstances here shown, when the case is fairly and fully
submitted, as it was in the charge of the judge to the jury, giving
a correct basis upon which there might be a recovery of damages,
and there is testimony tending to show damages in at least the sum
awarded by the Commission, there is no prejudicial error because of
the erroneous calculation of the Commission which was the basis of
its award.
Other questions are argued, but they are disposed of
satisfactorily in the opinion of the circuit court of appeals (269
Fed., supra), and in the opinion of the trial judge upon the motion
for a new trial (263 F.,
supra).
It follows that the judgment of the circuit court of appeals
must be
Affirmed.