In actions upon two closely related reparation orders,
that a mistake in the declarations transposing the
awards, first discovered by the district court near the close of
the trial, was subject to correction by amendment in that court's
discretion. P. 250 U. S.
Where a railroad company, guilty of unlawful discrimination in
car distribution, for years contested the claims of the injured
Page 250 U. S. 369
and offered no payment of awards for damages and interest made
by the Interstate Commerce Commission, it is not erroneous in
actions upon the awards to permit the jury to allow interest in its
verdicts, even though the shippers' claims were excessive. P.
250 U. S.
In actions on reparation orders, held
that the district
court did not abuse its discretion in fixing counsel fees, or
commit error in its charge as to the cost of producing coal, as an
element in the damages. P.
250 U. S. 371
In such an action, where there was expert evidence tending to
prove (as in Pennsylvania R. Co. v. Jacoby & Co.,
242 U. S. 89
the Commission's award was based upon tables of car distribution
which, if followed in practice, would have given the complaining
shippers the illegal preference of which they complained,
that the railroad was entitled to an instruction that
the award should be disregarded if the Commission followed such
tables, and that refusal of its request for such instruction would
be substantial error notwithstanding there was other evidence as to
the damages and the verdict was much less than the award.
Where it is obvious from remarks of the trial judge at the close
of his charge that he has inadvertently overlooked one of several
requests to charge, and opportunity is expressly given to suggest
the omission, failure to avail of the opportunity waives the error
in not granting the request; a general exception to refusals to
charge as requested will not suffice. P. 250 U. S.
244 F. 53 affirmed.
The cases are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
These cases were tried together in the courts below and may be
considered and disposed of in like manner here.
Page 250 U. S. 370
They were brought upon reparation orders made by the Interstate
Commerce Commission based upon alleged discrimination against the
plaintiffs in car distribution. Two periods were in controversy: in
No. 293, from July 1, 1902, to October 1, 1904; in No. 294, from
October 1, 1904 to June 30, 1907. Verdicts and judgments were
recovered in both cases against the company. The judgments were
affirmed in the circuit court of appeals. 244 F. 53.
During the first period, James H. Minds and William J. Matz,
trading as Bulah Coal Company, operated the mine alleged to have
been subjected to unlawful discrimination. During the second
period, a partnership, composed of Minds and the widow of Matz,
trading under the same name, operated the mine. Two proceedings for
reparation were brought before the Interstate Commerce Commission.
In the first, an order of reparation in the sum of $18,591.48 was
awarded, with interest thereon at the rate of 6% per annum from
June 28, 1907. For the second period, an award was made in the sum
of $31,715.57, with 6% interest from the same date. The verdicts of
the jury were, for the first period, $16,092.92; for the second
1. The plaintiff in error complains of the allowance of an
amendment correcting a mistake in the declarations transposing the
awards. The mistake was first noticed by the court near the close
of the trial. This amendment was so obviously just and within the
court's discretion that we need only say that we think no error was
committed in allowing it.
2. It is insisted that the court erred in allowing the jury to
add interest not exceeding 6% on the damages found; this upon the
theory that the recoveries were below the amounts claimed before
the Commission which were so large as to be wholly unfair. But the
defendants in error were entitled to full compensation for the
Page 250 U. S. 371
sustained as the result of the wrongful discrimination against
them. (§ 8 of the Act to Regulate Commerce.) The Commission allowed
interest as part of its award, and the district court charged the
jury that it might do so in making up its verdicts. We see no error
in this. For years, these claims have been contested, the company
never offered any payment of the awards, and, unless interest is to
be allowed, there seems to be no means of making the claimants
whole for the wrongs sustained by violations of the statute.
3. It is contended that the court erred in fixing counsel fees,
as only those are allowable which compensate for court services.
Meeker v. Railroad, 236 U. S. 412
we are not prepared to say that the court abused its discretion in
fixing the fees. There is nothing to warrant our interference with
the judgments in this respect.
4. Error is alleged in the charge as to the cost of producing
the coal which entered into the computation of damages. ,Upon this
point there was a conflict in the testimony, and an examination of
the charge satisfies us that the question was fully and fairly left
to the jury.
5. We come to the final and most serious complaint of error in
the proceedings. As to the first period, there was no contest over
the amount of tonnage which the plaintiffs could have shipped had
the cars been fairly distributed during that period. As to the
second period, the contention is that there was testimony tending
to show that the Commission awarded reparation under a rule which
violated its own final determination of the correct rule, in the
same manner as was shown in Pennsylvania R. Co. v. Jacoby,
242 U. S. 89
resulting in the reversal of the judgment in that case. There is no
showing that the court gave a wrong rule in this respect in its
charge to the jury. But here, as in the Jacoby
company called an expert witness who testified that the
Page 250 U. S. 372
tables in a blueprint, put in evidence by the complainants
before the Commission, were made upon a basis of car distribution,
which, if applied to complainants, would result, as pointed out in
case, in giving to them the wrongful preference
which had been awarded to favored companies. The witness testified
that a computation showed that the Commission, in making its award,
had followed this erroneous table and had used its percentages as
the basis of its award. The record discloses that the company asked
eighteen special points to be given in charge to the jury, in two
of which it requested charges which were based on this witness'
testimony as to the inaccuracy of the tables, asking the court in
substance to say to the jury that, if the Commission used such
tables in making its computation, the awards were on a wrong basis,
and should be disregarded.
The circuit court of appeals answered this contention by
distinguishing the Jacoby
case, in that the recovery in
that case was based wholly upon the award of the Commission and in
precisely the same amount, whereas in this case there was other
testimony as to the damages, and the jury awarded a recovery in a
sum much less than the amount fixed by the Commission. If these
were all the grounds of distinction between this and the
case, we should be constrained to hold that the
failure to give the company's special requests, based on the
expert's testimony, was substantial error requiring a reversal, but
at the close of his charge, the judge said:
"I think I have gone over the subject matter of all the
different points submitted to me. So far as they are affirmed in
the general charge they are affirmed, and so far as not affirmed in
the general charge, they are disaffirmed, and counsel, if they
choose, may call my attention to any specific point which they
would like to have specifically answered."
The court, in its charge, had not adverted to the effect
Page 250 U. S. 373
to be given to the testimony of the defendant's expert. The
observations, just referred to, called upon counsel to direct the
court's attention to points omitted. The plaintiff's counsel called
the court's attention to some things. Counsel for the company
"In the first period, we do not dispute the lost tonnage, only
the cost. In the second period, we dispute the correctness both of
plaintiffs' cost figures and also the tonnage. We ask that the
court so charge."
The court responded:
"Now, gentlemen, I want to make that clear. In the first period,
there is no question of the tonnage raised. The defendant concedes
the amount of the tonnage, and the difference is all over the cost.
So you need not trouble yourselves there with any other question
than the cost question. In the second period, the claim is
questioned in two respects; the cost, just as it is in the first
period, and the tonnage is also questioned. So, of course, you
cannot determine the amount of damage until you have settled both
of those questions."
"I understand that the parties have agreed that their respective
statements of their positions may be sent out in order to save the
jury the labor of making calculations. Is that correct?"
Counsel for the plaintiff and for the company each answered
"The Court: So, gentlemen, you will have the benefit of the
figuring of the parties on each side, which will present their
respective views. You will take the case and dispose of it. . .
"Counsel for the defendant excepted to the refusal of the trial
judge to charge as requested by them in such points as were not
affirmed. (Exception noted for defendant by direction of the
We have, then, this situation: after a charge dealing with the
general questions in the case, with numerous
Page 250 U. S. 374
special requests to charge "points," as they are called, the
presiding judge expressed the view that he thought he had gone over
the subjects embraced in the requests submitted. That he had
omitted some is not surprising, for the court was dealing with an
exceedingly difficult and complicated situation of car
distribution, concerning which the Interstate Commerce Commission,
the body primarily entrusted with the determination of such
matters, had long deliberated before announcing the rule upon which
it finally acted and made its award in the series of cases of which
those now before us are a part. Upon the invitation of the trial
judge, the company's counsel made the request which we have quoted,
and the judge at once complied with it, and charged, as counsel
desired, upon that particular subject, adding that he understood
that the parties had agreed that the respective statements of their
positions might go to the jury to save it the labor of making
calculations. In this way, the parties got before the jury the
calculations showing their respective claims. This may have been
and probably was the reason for the failure of counsel to call
attention to the omission to answer the particular points requested
concerning the effect to be given to the testimony of the
defendant's witness, if credited by the jury. Apparently counsel
were satisfied when the jury had before it the table showing the
basis of their claims in the case. But, whatever the reason, the
court, after a careful and painstaking charge, thinking he had
answered the "points" of both sides, called upon counsel to suggest
omissions as to particular points; then followed the proceedings
already recited. We think counsel should have directed attention to
the omission which it is evident was inadvertent. The case, in this
aspect, is entirely unlike the Jacoby
case, where a
specific request was made and refused, and a recovery had upon an
award of the Commission which the testimony tended to show was made
upon a wrong basis.
Page 250 U. S. 375
This Court has repeatedly held that objections to the charge of
a trial judge must be specifically made in order that he may be
given an opportunity to correct errors and omissions himself before
the same are made the basis of error proceedings; this is the only
course fair to the court and the parties. McDermott v.
Severe, 202 U. S. 600
202 U. S. 610
Norfolk & Western Ry. Co. v. Earnest, 229 U.
, 229 U. S. 120
United States v. Fidelity Co., 236 U.
, 236 U. S. 529
Jacobs v. Southern Ry. Co., 241 U.
, 241 U. S. 236
Guerini Stone Co. v. Carlin Co., 248 U.
, 248 U. S. 338
Parties may not rest content with the procedure of a trial, saving
general exceptions to be made the basis of error proceedings, when
they might have had all they were entitled to by the action of the
trial court had its attention been seasonably called to the
The trial court and the court of appeals have refused to disturb
the amounts awarded by the jury as compensation for the clear
violation of the Interstate Commerce Act, which these records
disclose, and which was very much less than the sums awarded by the
Commission when the allowance of interest is considered which under
the court's instructions entered into the verdicts. We think the
only serious ground upon which reversal may be asked is found in
the failure to give the points, to which we have referred, and as
to them, we are of the opinion that such failure was waived by the
course of proceeding to which attention has been directed.