In an action against a carrier to enforce an award made by the
Interstate Commerce Commission for damages arising from
discrimination in allotments of coal cars, plaintiffs, to prove the
damage suffered, relied on the
prima facie case made by
the findings and orders of the Commission; the defendant introduced
a tabulated statement of car allotments and percentages which had
been introduced in evidence before the Commission by the
plaintiffs, and which, when compared with the findings, justified
most strongly, if it did not compel, a deduction that, in fixing
the damages awarded, the Commission, by misapplying percentages
given in the statement, had followed a legally erroneous method of
computation, and so had arrived at a legally erroneous result.
Held:
(1) That the tabulated statement, and oral testimony comparing
it mathematically with figures stated in the findings, were
competent evidence, tending to overcome the
prima facie
force of the Commission's orders.
(2) That the defendant was entitled to a specific instruction to
the effect that, if the jury found such erroneous method of
computation was the one actually employed by the Commission, the
award was erroneous and the plaintiffs not entitled to recover.
(3) That, under the circumstances, the fact that the evidence
before the Commission was not all before the court would not
justify a controlling presumption that the award was properly
arrived at on competent proofs.
(4) That the error was not cured by divers general instructions
which are stated in the opinion.
In computing damages resulting from discrimination by a carrier
in car allotments, it is error to assume that the complaining
shipper should have received cars in the same ratio to shipping
requirements
Page 242 U. S. 90
as was allowed his favored competitor in the making of the
discrimination.
The award should be based on the damages actually resulting from
the discrimination.
The case is stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
Jacoby & Company, hereinafter called the plaintiffs, owned a
coal mine known as Falcon No. 2 in the Clearfield District served
by the Tyrone Division of the lines of the Pennsylvania Railroad
Company, hereinafter called the company, and shipped coal from
their mine in interstate commerce. In April, 1907, the plaintiffs
made complaint before the Interstate Commerce Commission of
discriminatory practices against them in the distribution of coal
cars, in violation of the Act to Regulate Commerce. The Commission
made findings, among others, that Falcon No. 2 was not placed on an
equal footing with the mines of the Berwind-White Coal Company in
the matter of the distribution of the defendant's available coal
car equipment during the period of the action. It also found a
special allotment of 500 cars daily to the Berwind-White Company to
be an undue preference and discrimination, and on March 7th, 1910,
the Commission made an order finding that the complainants had been
unduly discriminated against, and set forth that it appeared
"that it is and has been the defendant's rule, regulation, and
practice, in distributing coal cars among the various coal
operators on its lines for interstate shipments during
percentage
Page 242 U. S. 91
periods, to deduct the capacity in tons of foreign railway fuel
cars, private cars, and system fuel cars, in the record herein
referred to as 'assigned cars,' from the rated capacity in tons of
the particular mine receiving such cars, and to regard the
remainder as the rated capacity of that mine in the distribution of
all 'unassigned' cars."
The Commission ordered
"that the said rule, regulation, and practice of the defendant
in that behalf unduly discriminates against the complainants and
other coal operators similarly situated, and is in violation of the
third section of the Act to Regulate Commerce . . . , and that the
defendant be, and it is hereby, notified and required, on or before
the first day of November, 1910, to cease and desist from said
practice and to abstain from maintaining and enforcing its present
rules and regulations in that regard, and to cease and desist from
any practice and to abstain from maintaining any rule or regulation
that does not require it to count all such assigned cars against
the regular rated capacity of the particular mine or mines
receiving such cars in the same manner and to the same extent and
on the same basis as unassigned cars are counted against the rated
capacity of the mines receiving them."
At the same time, the Commission ordered that the question of
damages sustained by the plaintiffs in respect to the matters and
things in the report found to be discriminatory be deferred pending
further argument.
See also 19 I.C.C. 392, where the
decision is reported. In that case, the Commission referred to its
report filed the same day in the case of Hillsdale Coal & Coke
Co. v. Pennsylvania R. Co.. 19 I.C.C. 356, in which the
discriminatory character of the rules of car distribution of the
company is fully discussed (p. 364) and the rules are condemned,
largely because of the advantages given to the owners of private
cars unless the same shall be counted against the distributive
share of the mine receiving them.
See also the discussion
of these rulings in
Page 242 U. S. 92
Pennsylvania Railroad Company v. Clark Coal Company,
238 U. S. 456.
On March 11, 1912, the Commission made a further report, in
which it found as follows:
"We find that, by reason of the discriminations ascertained and
set forth in our report in Jacoby v. P. R. Co., 19 I.C.C. 392, the
complainants were damaged to the extent of $21,094.39, which they
are entitled to recover with interest from June 28, 1907."
"The claimants here demand $51,950.49. The award above made we
base upon evidence adduced of record, from which we find:"
"(a) That the fair rating of the mine for the time in question,
as fixed by the defendant and not objected to by the complainants,
was 450 tons per day."
"(b) That during the period from April, 1904, to March 31, 1905,
the mine was operated 275 days, and that, during the second period
named on the exhibits, from April 1 to October 18, 1905, it was
operated 138 1/4 days."
"(c) That, during the first of these periods, 38,714.23 tons
were actually shipped from Falcon No. 2, and during the second
period, 17,973.88 tons; that, if the complainants had received
their fair share of the cars available for distribution, the mine
would have made additional interstate shipments and sales to the
extent of 35,412.02 tons and 19,104.77 tons during the respective
periods."
"(d) That the average selling price of the complainants' product
for the first period was $1.212 per ton, and in the second period
$1.1670; that the cost of production, based on economical operation
of the mine with a fair car supply, would have been 92 cents during
the entire period of the action, and that the profit during the
first period would therefore have been 29.2 cents, and during the
second period, 24.7 cents, per ton. This measures the loss on the
tonnage which the complainant was unable to ship. "
Page 242 U. S. 93
"(e) That the actual cost of production is shown by the record
as $1.016 per ton during the first period and $1.049 per ton during
the second period, making an excess of 9.6 cents and 12.9 cents for
the respective periods in the actual cost of production under the
conditions obtaining, as compared with what would have been the
cost based on a fair car supply as heretofore stated. This is the
basis adopted for computing the loss sustained by these
complainants in diminished profits for the coal actually shipped
during the period in question."
On March 11th, 1912, the Commission made a reparation order in
favor of the plaintiffs, confirming its former orders, findings,
and conclusions and ordering that the company should pay to the
plaintiffs on or before the 1st day of June, 1912, the sum of
$21,094.39, with interest thereon at the rate of six percent per
annum from June 28th, 1907, as reparation for defendant's
discrimination in distribution of coal cars, which discrimination
had been found by the Commission to be unlawful and unjust. Upon
these orders of the Commission, suit was brought in the District
Court of the United States, for the Eastern District of
Pennsylvania, on July 19th, 1912, the action being based upon ยง 16
of the Act to Regulate Commerce, 34 Stat. 590. The case was heard
in the district court, and resulted in a verdict for the amount
awarded by the Commission, with interest thereon. On the case going
to the circuit court of appeals, that court certified certain
questions to this Court, and, upon writ of certiorari, the whole
record was brought here.
The case was argued before this Court at the October term, 1915.
At that term, the judgment below was affirmed, with costs, by a
divided Court. Afterwards, and at the same term, a petition for
rehearing was granted and the former judgment set aside, and the
case restored to the docket for reargument. 239 U.S. 631.
At the trial in the district court, the plaintiffs offered
Page 242 U. S. 94
no other testimony as to the amount of damages sustained by them
than that contained in the orders of the Commission, before
recited. Section 16 of the act makes the findings and orders of the
Commission
prima facie evidence of the facts therein
stated, and it may be conceded that, if no testimony was offered in
the case to overcome the
prima facie case thus made, the
orders of the Commission would be controlling, and determine the
amount of recovery. The
prima facie character of the
findings of fact and award of damages by the Commission was
established upon full consideration of the subject in
Meeker v.
Lehigh Valley R. Co., 236 U. S. 412,
236 U. S.
426-431, and second
Meeker case,
236 U. S. 236 U.S.
434. This Court said in
Mills v. Lehigh Valley Railroad
Co., 238 U. S. 473,
238 U. S. 481,
after quoting from the
Meeker cases
supra:
"The statute was not concerned with mere forms of expression,
and, in view of the decision that a finding of the ultimate fact of
the amount of damage is enough to give the order of the Commission
effect as
prima facie evidence, we think the court did not
err in its ruling. The statutory provision merely established a
rule of evidence. It leaves every opportunity to the defendant to
contest the claim."
In order to meet the
prima facie case made by the
plaintiffs upon the orders of the Commission in awarding damages,
in the course of the testimony, the company put in evidence certain
sheets, which were offered in evidence before the Commission by the
plaintiffs, in the hearing before that body, known as exhibit No.
10. These sheets were entitled
"Detailed statements showing discrimination in favor of other
mines and against Falcon No. 2 [the mine of the plaintiffs], from
April 1st, 1904, to April 1st, 1905,"
and "from April 1st, 1905, to October 15th, 1905," respectively,
these being the periods for which recovery was sought in this case
by the plaintiffs. These sheets undertook to show the percentage of
cars awarded to certain preferred companies by the railroad
company, as compared
Page 242 U. S. 95
to those awarded to the plaintiffs for use in their mine during
the period stated. They were intended to show that the favored
companies received cars during the first period to the extent of
59.9 percent of their mine rating, and, during the second, 59.6
percent of their mine ratings, which percentages were much larger
than the plaintiffs received for their mine during the like
periods. In other words, it was thus sought to establish that the
favored mines received not their just proportion of the
distributable cars, but a much larger and highly discriminatory
share when compared with the allotment made to the plaintiffs. It
is the contention of the company that it is demonstrable from this
record that these tables showing the percentages awarded to favored
companies were made the basis of the Commission's award of
damages.
We have already seen from the orders of the Commission, above
recited, the manner in which it made its award and reached its
conclusion as to the amount recoverable by the plaintiffs. At the
trial in the district court, the Company placed a witness upon the
stand, who testified as follows:
"Q. Referring to the order which has been put in evidence, made
by the Interstate Commerce Commission, finding a certain amount as
due Jacoby & Company, will you please say whether you have
taken the daily rating fixed by the Commission as proper -- namely,
450 tons per day -- and multiply that by 275 days, the days which
the Commission found the plaintiff's mine would have been able to
work in the year ending March 31, 1905, and tell us what the
aggregate number of tons is, based upon those two figures?"
"A. 123,750 tons."
"Q. In that same order, the Commission has found that the
plaintiff shipped in that period 38,714.23 tons, and that they
ought to have received cars which would have enabled them to ship
35,412.02 tons additional. If they had made
Page 242 U. S. 96
those additional shipments, what would the total volume of
shipments have been?"
"A. 74,126.25 tons."
"Q. What percentage of the aggregate capacity of the mine, based
upon 450 tons per day and 275 days, are the aggregate shipments
which would have been made, which you have just spoken of?"
"A. 59.9 percent"
"Q. Coming to the second period of the action, the Commission
found that 450 tons per day was a proper rating for the mine, and
that the mine would have been capable of working 138 1/4 days.
What, on that basis, is the aggregate capacity of the mine in that
period?"
"A. 62,212.51 tons."
"Q. In their order, the Commission found that, in that period,
the mine had shipped 17,973.88 tons, and that it should have
received cars which would have enabled it to ship 19,104.77 tons
additional. If it had made those additional shipments, what would
have been the total shipments in that period?"
"A. 37,078.65 tons."
"Q. And what percentage is that of the aggregate rated capacity
based on 450 tons a day and 138 1/4 days?"
"A. 59.6."
This testimony was competent in order to meet the plaintiffs'
case based on the orders of the Commission, and from it we think
the conclusion is inevitable that the Commission may have used the
percentages of 59.9% and 59.6%, respectively, in reaching the
amount of damages awarded to the complainant. If so, the recovery
was permitted not upon the basis of damages sustained by reason of
the illegal discrimination practiced against the plaintiffs, as
found by the Commission, but upon the basis that they were entitled
to receive cars equal in ratio to those illegally and
preferentially given to the certain favored companies named in the
tables. The effect of
Page 242 U. S. 97
the enforcement of such rule would be not to give the shipper
the damages which he actually suffered, but would base the recovery
upon a rule which is condemned as to others, because of its
discrimination in their favor -- a result manifestly not intended
by the act of Congress.
The testimony being in the condition which we have stated, and
the plaintiffs having offered no testimony to show the amount of
damages sustained other than that contained in the order made by
the Commission, the company made certain definite requests to
charge, which were refused. In one of them, they requested a
peremptory instruction in favor of the company upon the ground that
as the award of the Interstate Commerce Commission was based upon
the conclusion that, in the year ending April first, 1905, the
plaintiffs should have received cars equal in capacity to 59.9% of
the aggregate of their daily mine rating for 275 days, and, in the
period between April 1st and October 18th, 1905, cars equal in
capacity to 59.6% of their daily mine rating for 138 1/4 days, it
was apparent that this conclusion of the Commission was based upon
the evidence presented by the plaintiffs that the aggregate of the
cars placed by the defendant at certain mines selected for the
purpose of comparison from those comprised in the region in which
the plaintiffs' mine was located had been equal in the earlier
period to 59.9%, and, in the later period, 59.6%, of the aggregate
ratings of these selected mines. If the court should refuse to
charge as above requested, the court was requested to instruct the
jury as follows:
"8. If the jury should find that the conclusion of the
Interstate Commerce Commission that the plaintiffs, in the year
ending April 1, 1905, should have received cars equal in capacity
to 59.9% of the aggregate of their daily mine ratings, and in the
period between April 1 and October 18, 1905, cars equal in capacity
to 59.6% of the aggregate of their daily mine ratings, was reached
or arrived
Page 242 U. S. 98
at because of the evidence presented by the plaintiffs that the
aggregate of the cars placed by the defendant at certain mines
selected for the purpose of comparison from those comprised in the
region in which the plaintiffs' mine was located had been equal in
the earlier period to 59.9%, and in the later period to 59.6%, of
the aggregate ratings of these selected mines, the basis for the
Commission's conclusion and award was an erroneous one, and the
plaintiffs consequently are not entitled to recover."
In view of the testimony as we have already stated it, we think
the company was entitled to have this eighth request given in
charge to the jury. Nor do we think this refusal was cured by the
charge that the finding of the Commission was
prima facie
correct, and entitled to weight as such unless the defendant
produced evidence to show that some other state of facts existed,
and that the plaintiffs had not suffered the damages awarded to
them by the Commission, and the charge in general terms that it was
the duty of the company to apportion and deliver to the plaintiffs
their fair share of all cars available during the period of the
action to shippers in the district in which plaintiffs' mine was
located, and that, if plaintiffs received their full and
proportionate share of cars in the district, they had no cause for
complaint against the company, and the burden was upon the
plaintiffs to establish by satisfactory proof that they did not
receive their share, nor by other parts of the charge in which the
jury was told in general terms that the shipper was entitled to
recover the full amount of damages which he sustained, and that, in
arriving at such damages, the jury could only take into
consideration whether they had been discriminated against, and to
what extent they were damaged by that discrimination, and that, if
the Berwind-White Company got 59% of its output when the average
allottable was 28%, it did not necessarily follow that the
plaintiffs would be damaged the entire difference between
Page 242 U. S. 99
28% and 59%, but their damage would be the amount to which their
number of cars was reduced in the general allotment by favoring
somebody else and taking the cars from them. However correct these
general observations may have been, we think it was error in the
state of the record to which we have already referred to refuse the
specific charge requested.
It is urged that the testimony before the Commission is not all
in the record, and that, for aught that appears, the Commission may
have reached its conclusion and awarded damages upon other and
competent proofs, and it is insisted that the coincidence of the
amount as awarded and the amount ascertained by the use of the
percentages contained in the tables may not necessarily have
controlled the action of the Commission. But it is difficult to
reach the conclusion that the Commission could have arrived at the
result so exactly corresponding with the one obtained by the use of
the percentages shown in the tables, except by actually using them
to ascertain the sum which is exactly the amount resulting from
their application. The Commission might have approximated the same
result by using other and legal means to ascertain the damages
sustained, but when it is demonstrated that the use of the
percentages precisely produces the amount awarded to the dollar and
cent, it seems almost mathematically certain that the result could
have been reached in no other way. At least we think that the
testimony was in such shape that, as we have already said, the
company was entitled to the specific request upon this subject
submitting the matter to the jury.
For error in refusing to give this request in charge, the
judgment of the district court must be reversed, and the case
remanded to that court for a new trial.
Reversed.
Dissenting, MR. JUSTICE PITNEY.