Meeker & Co. v. Lehigh Valley R. Co., ante, p.
236 U. S. 412,
followed as to construction effect of the amendment to § 16 of the
Act to Regulate Commerce and the Act of June 29, 1906, in regard to
presentation of claims by shippers against carriers for damages by
reason of unreasonable and excessive rates and discrimination, and
that the attorney's fee allowed for recovery of the amount awarded
can only be for proceeding in court, and not on proceedings before
the Commission.
A report of the Interstate Commerce Commission holding a rate
excessive and declaring what would be a reasonable rate and a
reparation order based thereon were properly admitted as
prima
facie evidence of the facts therein contained, although made
in another and identical proceeding between the same parties, and
which the Commission had power in its discretion to consolidate
therewith, it also appearing that the carrier did not then object
to its admission and the order recited that it was made after a
full hearing on, and submission of, the issues in the proceeding in
which it was made.
Harmless error constitutes no ground for reversal, and so
held as to the presence of irrelevant matter in a report
of the Interstate Commerce Commission which matter, while it should
not have gone to the jury, did not prejudice respondent.
211 F. 785 reversed.
The facts, which involve the construction of §§ 1, 2 and 16 of
the Act to Regulate Commerce and questions of discrimination, are
stated in the opinion.
Page 236 U. S. 435
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is a companion case to that just decided, and involves a
claim for reparation similar to the second claim in that case, and
arising out of the same rate.
In this instance, the shipper was Henry E. Meeker, who had
succeeded to the business of Meeker & Company, the shippers in
the other case, and the shipments in respect of which reparation is
sought were made between April 13, 1908, and April 13, 1910.
Otherwise the two claims differ only in amount. A complaint
covering this claim was filed with the Interstate Commerce
Commission April 13, 1910, before it passed upon the complaint
covering the other. In its report of June 8, 1911, upon the earlier
complaint, the Commission referred to the later one and said (21
I.C.C. 129, 137):
"As the subject matter of the two complaints is the same,
insofar as the reasonableness of the rates is concerned, the
disposition of the later case will perhaps be determined by the
conclusions reached in this case."
In that report, it found that the rate in question was excessive
and unreasonable and what would have been a reasonable rate, and
directed a further hearing upon the matter of reparation. Such a
hearing was had on both complaints, and, on May 7, 1912, the
Commission made a supplemental report, entitled in both cases, in
which it referred to its original report and the findings therein,
and, after dealing with the reparation sought in the first
complaint (Commission's No. 1180), said of the present claim (23
I.C.C. 480, 482):
"On basis of our decision in No. 1180, and upon consideration of
the evidence submitted at the hearing of the present case regarding
the amount of reparation due complainant, we now find that the
rates exacted by defendant for the transportation of anthracite
coal from the Wyoming coal region in Pennsylvania to Perth
Amboy,
Page 236 U. S. 436
N.J., during the period from April 13, 1908, to April 13, 1910,
were unreasonable to the extent that they exceeded rates of $1.40
per gross ton on prepared sizes, $1.30 on pea, and $1.15 on
buckwheat; that complainant shipped from said point of origin to
said destination during the period above set forth, 46,772.02 tons
of coal of prepared sizes, 26,972.06 tons of pea coal, and
22,004.09 tons of buckwheat coal; that complainant paid charges
thereon, amounting to $136,663.41 at the rates herein found to have
been unreasonable, and was damaged to the extent of the difference
between the amount which he did pay and $125,849.81, the amount
which he would have paid at the rates above found reasonable, and
that he is therefore entitled to an award of reparation in the sum
of $10,813.60, with interest amounting to $1,526.53 upon the
individual charges comprising said sum from the dates of payment
thereof to September 1, 1911, together with interest on said sum of
$10,813.60 from the 1st day of September, 1911."
"The exhibits showing details respecting the shipments upon
which reparation is asked are too extensive to be set forth in this
report. But, inasmuch as the accuracy of the figures in said
exhibits respecting the shipments made, freight charges paid, and
reparation due is conceded of record by defendant, we deem it
unnecessary to make detailed findings respecting the numerous
shipments involved."
Thereupon the Commission made and entered the following
order:
"This case being at issue upon complaint and answers on file,
and having been duly heard and submitted by the parties, and full
investigation of the matters and things involved having been had,
and the Commission having, on the date hereof, made and filed a
report containing its findings of fact and conclusions thereon,
which said report is hereby referred to and made a part hereof:
"
Page 236 U. S. 437
"It is ordered, that defendant Lehigh Valley Railroad Company
be, and it is hereby, authorized and required to pay unto
complainant, Henry E. Meeker, on or before the 15th day of July,
1912, the sum of $10,813.60, with interest at the rate of 6 percent
per annum, amounting to $1,526.53 upon the various individual
charges comprising said sum, from the dates of payment thereof to
September 1, 1911, as itemized in complainant's Exhibit 1, together
with interest at the rate of 6 percent per annum on said sum of
$10,813.60 from September 1, 1911, as reparation for unreasonable
rates charged for the transportation of various shipments of
anthracite coal from the Wyoming coal region in Pennsylvania to
Perth Amboy, New Jersey, which rates so charged have been found by
this Commission to have been unreasonable, as more fully and at
large appears in and by said report of the Commission."
The railroad company was duly served with a copy of the order,
but refused to comply with it, and, on September 3, 1912, after the
expiration of the period allowed for compliance, the claimant
brought the present action in the district court. The railroad
company answered as in the other case. At the trial, the plaintiff
relied in the main upon the findings and order of the Commission as
prima facie evidence of the facts therein stated, and no
opposing evidence was presented. The plaintiff had a verdict and
judgment for $13,161.78, the amount of damages awarded by the
Commission, with interest. The court also allowed an attorney's fee
of $5,000, to be taxed and collected as part of the costs, one-half
of the allowance being expressly attributed to services before the
Commission and the other half to the services in the action. The
case was taken to the circuit court of appeals, where the judgment
was reversed, with that in the other case. 211 F. 785. This case
was then brought here in the same way as the other.
234 U.
S. 749.
Page 236 U. S. 438
Save that the statute of limitations is not relied upon, the
questions here presented are almost all identical with those in the
other case, and insofar as they are the same, they are sufficiently
disposed of by what is there said. There are but two points of
difference, and they require only brief mention.
The Commission's report of June 8, 1911, finding the rate in
question excessive and unreasonable, and what would have been a
reasonable rate, was admitted in evidence over the defendant's
objection that it was made in another and separate proceeding --
that is, upon the complaint of Meeker & Company -- and
therefore was not admissible in this case for any purpose. The
objection was rightly overruled. Without any doubt it was within
the discretion of the Commission to permit Henry E. Meeker to
intervene in respect of his individual claim in the proceeding
begun by Meeker & Company, or to consolidate his complaint with
theirs. This, in effect, is what was done. The supplemental report
so shows, and it does not appear that the railroad company objected
to that course or was in any way prejudiced by it. Besides, the
reparation order recites that it was made after a full hearing and
submission of the issues presented by the complaint and answer
relating to this claim, and there was no evidence tending to
contradict the recital.
The further objection was made to the admission of the same
report that it contained much that was not relevant to the case on
trial, but the objection was overruled, and it is fairly inferable
from the record that the entire report was placed before the jury.
It hardly could be said that the presence of some irrelevant matter
rendered the whole report inadmissible, and yet the objection seems
to have been made in that view. The objection would have been
better founded had it been confined to what was deemed irrelevant.
Of course, all that should have gone before the jury was the
relevant findings
Page 236 U. S. 439
in the report, and counsel for the plaintiff ought not to have
asked more. But we need not fix the responsibility for what
occurred, for it is certain that the defendant was not harmed by
it. The case made by the evidence rightly admitted was such as, in
the absence of any opposing evidence, and there was none, clearly
entitled the plaintiff to a verdict for the amount claimed. Every
fact essential to a recovery, save the service of the reparation
order and the refusal to comply with it, was
prima facie
established by the findings and order of the Commission, and these
could not be rejected by the jury in the absence of any
countervailing evidence.
Kelly v.
Jackson, 6 Pet. 622,
31 U. S. 632.
The service of the order was expressly admitted, and the refusal to
comply with it was fully proved and practically conceded. Of
course, harmless error constitutes no ground for reversal.
We conclude, therefore, that the judgment of the circuit court
of appeals must be reversed, and that of the district court must be
modified by eliminating the allowance of an attorney's fee of
$2,500 for services before the Commission, and affirmed as so
modified.
It is so ordered.