Petition for a Writ of Certiorari — Baltimore & Ohio R. Co. v. Brady

Supreme Court brief1933

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NOV 25 1932

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a “CHARLES ELMORE CROP

. OLERK

Supreme Court of the United betes —it

OCTOBER TERM, 1982.

}

THE BALTIMORE AND OHIO RAILROAD COM-

PANY, A CORPORATION, AND WESTERN

MARYLAND RAILWAY COMPANY, A’ COR-

(| PORATION, Peririonens,

versus

A. SPATES BRADY, Responpent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF AP

PEALS FOR THE FOURTH CIRCUIT AND

BRIEF IN SUPPORT THEREOF.

GEORGE M. HOFFHEIMER,

’ CHARLES R. WEBBER,

' EUGENE S. WILLIAMS.

E. A. BOWERS.

WILLIAM C. PURNELL.

Counsel for Petitioners.

INDEX.

PAGE.

PrTiTion For Writ or CERTIORARI 1

Statement of Matter Involved

Questions Presented 9

Reasons for Allowance of Writ 1]

Brier in Support or Petrrion 15

Opinion Below 15

Jurisdiction 16

Statement 16

Errors Assigned 16

Specification of Errors 17

Summary of Argument 19

Argument 25

I. Limitation of shipper’s right of action and

Court’s jurisdiction to amount of Commis-

sion’s award with interest.

1. This Court has not decided the question

2. Recovery in excess of such an award has

never been sustained by this Court

3. The implication of the decisions of this

Court is that as to damages disallowed

by the Commission, its order is negative

and unreviewable

4. Existing decisions under Section 16(2)

do not foreclose argument of point I]

above stated

~_t

MOR IO GR LOE Mle

PAGE

‘*Full contestation’’ referred to in deci-

sions means shipper’s right to sustain

award by extrinsic evidence and car-

rier’s right to overcome it

Analogies are against so construing See-

tion 16(2) as to require carrier to

gamble on the result of contesting an

award, and such a result is opposed to

purpose of the Act and interest of public

in preventing preference and discrimin-

ation

Carrier’s penalty for unsuccessfully

contesting an award is payment of ship-

per’s attorney’s fee ANd COSTS .rceccssseeeenen

Shipper’s petition showed award was

reached by disallowing avoidable loss and

attacks this disallowance. Judgment could

not have been reached without eliminating

the disallowance, and petition was insuffi-

cient to support it.

Petition showed verdict and judgment

included damages denied by Commis-

sion because of respondent’s failure to

minimize loss

Reports of Commission must be consid-

ered as part of petition

Measure of damages before Commission

and in court is identical

Before either Commission or court it is

duty of injured party to minimize his

loss

Avoidable damages do not constitute a

‘‘loss set-off’? involving two findings........

Rule applies although goods or services

can only be obtained from party in de-

fault

)

III.

IV.

111

No administrative question is involved and

limitation of respondent’s recovery is re-

sult of his election of remedies. If there

- was an administrative question he is limited

in the same way because he pursues statu-

tory right coupled with limited statutory

remedy.

1. Respondent could have sued in court in

firgt instance, and therefore elected pro-

cedure before Commission limiting him

to amount of award

Petition itself simply alleges Commis-

sion found unjust discrimination, with-

out showing how Commission so found.

Under rule construing pleadings against

pleader it may not be assumed question

presented to the Commission was ad-

ministrative

3. Petition alone or with exhibited orders

included states no more than violation

of carriers’ rule

4. Even assuming existence of administra-

tive question, respondent pursues statu-

tory right coupled with statutory rem-

edy limiting recovery in Section 16(2)

to award with interest

9. Case was not decided by Commission on

administrative basis. Respondent may

not now raise this question to evade lim-

itation on recovery under Section 16(2)

Issues are not res adjudicata.

1. Res adjudicata was not pleaded by re-

spondent

2. Brady Case in District Court was dis-

missed for lack of jurisdiction.................

PAGE

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eaten}

3. Inference to be drawn from memo-

randum opinion of this Court in Brady

v. United States (1) that order of Com-

mission was negative as to recovery dis-

allowed, and (2) that there could be no

review of facts found by the Commis-

sion

Voluntary expressions in Brady v. In-

terstate Commerce Commission do not

control effect of that decree in present

case

V. Respondent suffered no recoverable dam-

at Se

ages because there was no discrimination.

1. Respondent was offered the same car

service as given his competitor and

there was no discrimination, and no

damages except such as were the result

of his own failure to minimize his loss.....

PAGE

TABLE OF CASES.

PAGE,

Alton R. Co, v. United States, 58 F. (2d) 399. 28, 33

Arizona Grocery Co. v. Atchison, T. & 8S. F. R. Co.,

284 U.S. 370 16

Armour & Co, v. Fort Morgan S. 8. Co., 270 U.S. 253 47

Baltimore, The, 8 Wall. 377 39

Baltimore & O, R. Co. v. Baker, 58 F. (2d) 627.000... 2,16

Baltimore & OQ. R. Co, v. Baker, No. 121, Oct. Term,

1932 2,16

Baltimore & O. R. Co, v. Brady, 61 F. (2d) 242... 2,15, 42

Barnett v. Muncie Natl. Bank, 98 U.S. 55 dco 45

Bartlesville Zine Co. v. Mellon, 56 F, (2d) 154... 18, 28, 33

Bartlesville Zine Co. v. Mills, No. 66, Oct. Term,

1932 13, 28, 33

Blumenstock Bros, Etc. Ageney v. Curtis Pub. Co.,

252 U.S. 436 43

Board of Commissioners v. Home Sav. Bank, 200

Fed. 28 16

Bowker v. Torrey, 211 Mass. 282 38

Brady v. Baltimore & O. R. Co., 56 F. (2d) 231 cu 2,16

Brady v. Baltimore & O. R. Co., 112 1. C. C. 244... 2, 15

Brady v. Baltimore & O. R. Co, 153 1. C. C. 82 Toc 2, 15

Brady v. Interstate Commerce Com., 43. F. (2d)

S47 2, 15, 23, 24, 33, 36, 48, 49

Brady v. United States, 283 U. S. 804

2, 16, 23, 24, 27, 28, 33, 48

Carroll v. Carroll’s Lessees, 16 HOW. 279 vecccccccccceeon. 49

Chesapeake & O. R. Co. v. Kelly, 241 U.S. 483 cscs 39

Chesapeake & O. R. Co. v. Martin, 283 U.S. 209 vec. 34

Chicago, B. & Q. R. Co. v. Feintuch, 191 Fed.

482 13, 27, 28

Cohen v. Virginia, 6 Wheat. 399 49

Cromwell v. Sae County, 94 U.S. 351 D0

Deere v. Lewis, 51 Ill. 254 41

Denver County Com’rs. v. Home Sav. Bank, 236 U.

S. 101 16

Dougherty v. Catlett, 129 TL. 431 3

DuPont v. Gardiner, 238 Fed. 755. 38

ee x

EE ARETE ARAL RCA 3 Foe

PAGE,

Ellis & Co., Leigh v. Davis, 260 U. 8. 682 34

Fleischmann Constr. Co. vy. United States, 270 U. S.

349 16

Fourth Natl. Bank v. Francklyn, 120 U. 8, 747... 45

Georgia F. & A. R. Co. v. Blish Milling Co., 241 U.

S. 190 34

Gordon v. Ogden, 3 Pet. 33 27 |

Harriman v. Northern Securities Co., 197 U.S, 244... 49

Heilbroner v. Hancock, 33 Tex. 714 41

Hodges v. Fries, 34 Fla. 63 41

Hormel & Co., George A. v. Chicago, M. & St. P. R.

4 Co., 283 Fed. 915 39

g Huntington Easy Payment Co. vy. Parsons, 62 W.

i Va. 26 39, 40, 41

Illinois C. R. Co. v. Mulberry Hill C. Co., 238 U. 8S.

275 43

Illinois C. R. Co. v. Turrill, 110 U. S. 301.0... 27

Interstate Commerce Com. v. Baltimore & O. R. Co.,

145 U. S. 263 44

Kansas City Southern R. Co. v. Wolf, 261 U. 8.

133 34, 39

Keighley v. Durant, (1901) A. C. 240 27

Keogh v. Chicago & N. W. R. Co., 260 U.S. 156... 39

Lambert Run Coal Co. v. Baltimore & 0. R. Co., 258

U. S. 377 47

Lawrence y. Porter, 63 Fed. 62 4]

Lewis-Simas-Jones Co. v. Southern Pac. Co., 283 U.

S. 654 16

Louisville & N. R. Co. v. Ohio Valley Tie Co., 242 U.

S. 288 29, 38

Louisville & N. R. Co. v. Sloss-Sheffield S. & I. Co.,

269 U. S. 217 26

Manufacturers’ R. Co. v. United States, 246 U. S.

457 28, 33

Meeker v. Lehigh Valley R. Co., 236 U.S. 412.26, 29, 31, 49

Meeker v. Lehigh Valley R. Co., 236 U.S. 434............ 26

Midland Valley R. Co. v. Barkley, 276 U.S. 482....... 44

Vii

PAGE

Mills v. Lehigh Valley R. Co., 238 U.S. 473 cecum 26, 31

Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,

230 U. S. 247 32, 44

Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U.

S. 304 44

Nalle v. Oyster, 230 U. S. 165 16

Panama & 8. P. Tel. Co. v. India Rubber, &&. Works

Co., (1875) L. R. 10 Ch. 526 27

Pennsylvania R. Co. v. Clark Bros. Coal Min. Co.,

238 U.S. 456 27, 29, 30,32, 38, 44,46

Pennsylvania R. Co. v. International Coal Min. Co.,

230 U. S. 184 29, 39, 43, 45

Pennsylvania R. Co. v. Jacoby, 242 U.S. 89cm O7

Pennsylvania R. Co. v. Minds, 250 U. S. 86 8.ccccncscsnnes 26

Pennsylvania R. Co, v. Puritan Coal Min. Co., 237 U.

S. 121 43, 45, 46

Pennsylvania R. Co. v. Sonman Shatt C. Co., 242

U. S. 120 44

Pennsylvania R. Co. v. Stineman Coal Min, Co., 242

U. S. 298 44

Pennsylvania R. Co. v. Weber, 257 U. S. &3.......... 26, 32, 37

Phillips Co, A. J. v. Grand Trunk W. R. Co., 236

U. S. 662 34, 39

Powers v. Cady, 9 F. (2d) 458 28, 33

Russell v. Place, 94 U.S. 606 50

Schuler v. Southern Tron & 8. Co., 77 N. J. Eq. 60... 38

Slacum v. Pomery, 6 Cranehy 221 vcmucsusnnncseeeseceeeoeccc. 16

South Covington Ete. R. Co. v. Newport, 259 U.S. 97. 43

Southern Pae. R. Co. v. Darnell-Taenzer Lhr. Co.,

245 U.S. 531 26

O75 16

Southern R. Co. v. Prescott, 240 U.S. 632.0. 34

Southern Transp. Co. v. Interstate Commerce Com.,

ck stim Ck Rome eee Tania NRG 13, 28, 33

Spiller v. Atchison, T. & S. F. R. Co., 253 U.S. 117... 31

Standard Oil Co. v. United States, 283 U. S.

WT na ee 26, 27, 28, 32, 33

Ridin aea ae

NA te RR Ae oa aes

Vili

PAGE.

Teal v. Walker, 111 U. S. 242........ 16

Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.

S. 426 25

United Shoe Machinery Co. v. United States, 258

U. S. 451 49

United States v. Linn, 1 How. 104 38

United States v. United States F. & G. Co., 236 U.

S. 512 39

Vicksburg v. Henson, 231 U. S. 259 49

Warren v. Stoddart, 105 U. S. 224 39, 40, 41

Western New York & ™» ™. Co. v. Penn Ref. Co., 137

ed, SAS cn 13, 27, 28

Wilder Mfg. Co. 4. v. Corn Products Ref. Co.,

236 U.S. 165 .... . 45

Wilkes v. The King, Wilmott, 322 27

TABLE OF STATUTES.

Interstate Commerce Act,

Section 8; USCA, Tit. 49, Ch. 1, Se. S.occcccccsnesmane 2. 25

Section 9; USC ‘ Tit. 49, 5 SS ne

Section 13: USGA, Tit. 49, a ee 3

Section 16; USCA, Tit. 49, Ch. i wee. 16... 2 2, 25, 28

Section 22; U SCA, Tit. 49, Ch. : See. Seta 2.25

Judicial Code, as amended,

Section 240(a); USCA, Tit. 28, Ch. 9, Sec. 347....... 16

fABLE OF TEXT BOOKS.

4 Eneye. Pl. & Pr. 759 38

8 R. C. L. 442 40)

1 Sedgwick, Damages, (9 Ed.) Sees. 201, 202, 205,

214-215 39, 40

1 Sutherland, Damages, (4 Ed.) Sees. 88-90, 155.0... 39

Supreme Court of the United States

OCTOBER TERM, 1932.

We Giacn

THE BALTIMORE AND OHIO RAILROAD COM-

PANY, A CORPORATION, AND WESTERN

MARYLAND RAILWAY COMPANY, A COR-

PORATION, Pertirione.

versus —

A. SPATES BRADY, Ttimronvare.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF AP-

PEALS FOR THE FOURTH CIRCUIT.

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Your petitioners, The Baltimore anu “iio Railroad

Company and Western Maryland Railway Company,

respectfully show:

STATEMENT OF THE MATTER INVOLVED.

On October 17, 1932, the United States Cireuit Court

of Appeals for the Fourth Cirenit (R. 107) affirmed a

judgment of the District Court for the Northern District

of West Virginia rendered September 5, 1931, in favor

of the respondent A. Spates Brady against your peti-

tioners, The Baltimore and Ohio Railroad Company

(hereinafter sometimes called the Baltimore & Ohio) and

the Western Maryland Railway Company (hereinafter

sometimes called the Western Maryland), for $63,048.60,

with interest and costs. This does not include an attor-

ney’s fee for the respondent, all questions on which were

reserved (R. 39).

The opinion of the Circuit Court of Appeals, reported

as Baltimore dé O. R. Co. v. Brady, 61 F. (2d) 242, is at

page 89 of the record. A specially constituted District

Court, pending this action, denied to Brady an injunction

to annul that part of the Interstate Commerce Commis-

sion’s order awarding him less than he claimed and re-

covered, the opinion being reported as Brady v. Inter-

state Commerce Com., 43 F. (2d) 847, and this Court

affirmed that decree (Brady v. United States, 283 U.S.

804). The District Court gave no written opinion in this

action, except that refusing to sign bills of exceptions.

(Brady v. Baltimore & O. R. Co., 56 F. (2d) 231; R. 74).

The Circuit Court of Appeals denied a writ of mandamus

to require settlement and signature of bills of exceptions

(Baltimore €& O. R. Co. v. Baker, 58 F. (2d) 627), and

this Court on October 3, 1932, denied a writ of certiorari

_ to review that ruling (Baltimore & O. R. Co. v. Baker,

; No. 121, October Term, 1932). Therefore the record only

: presents the sufficiency of the petition, which exhibits

- and makes part thereof the reports and order of the

~ Commission (R. 1, 10, 21, 31: Brady v. Baltimore & O.

| R.Co., 112 1. C. C. 244; Id. 152 1. C. ©. 327).

PRR A PERERA GEL EE ALORA ENR LOIS it BROOD POLE DENS ae

This action was under the Interstate Commerce Act,

Sees. 8, 9, 16(1), 16(2), and 22 LUSCA, Tit. 49, Ch. 1,

Sees. 8, 9, 16(1), 16(2) and 22], as an election to proceed

MB sce. rf PESTLE RS RPE BOGE NE EIEN TINO NRE SARE AEH ESI Seaseee. ——

before the Commission in the first instance, or under Secs.

13, 16(1) and 16(2) [USCA, Sees. 13, 16(1) and 16(2)]

and the general decisions as to the scope and pur-

pose of the Act, compelling resort to the Commission,

such as Texas € P. R. Co. v. Abilene Cotton Oil Co., 204

U. S. 426, for damages for alleged undue and unreason-

able disadvantage and discriminatory and unduly preju-

dicial practices by your petitioners, interstate carriers,

in the distribution to the respondent’s coal mine of coal

cars for use in interstate commerce.

The respondent’s petition, filed February 6, 1930 (R.

1), partly based on, and partly endeavoring to avoid, the

Commission's findings and reparation order (R. 10, 21,

31), showed in substance, exclusive of the reports and

order (R. 10, 21, 31), the following:

That the respondent operated a mine, during a period

of car shortage, on a branch of the Baltimore & Ohio,

between and adjacent to mines of the West Virginia Coal

& Coke Company (hereinafter called the Coal Company),

a competitor, on the same and another Baltimore & Ohio

branch; that by agreement between your petitioners, ef-

fective during that period, the Western Maryland had

and exercised trackage rights over the branches reach-

ing and serving said competitive mines of the Coal Com-

pany, and had interstate rate schedules for coal there-

from. That each of said railways had in force rules and

regulations governing the rating of coal mines and dis-

tribution of coal cars among the mines on their lines,

which rules and regulations and certain rulings and deci-

sions of the Commission required that during periods of

shortage, available cars should be distributed pro rata

among the mines in accordance with their ratings, or the

orders of their operators, if less than their ratings; that

they permitted the operator of any mine reached by two

Son ll

EATER De aed KP

railways to order 100 per cent. or less of its rating from

either, or to divide the orders between the two in any

way which his judgment dictated, provided the combined

orders did not exceed 100 per cent. of the mine rating,

and the mine was entitled to its pro rata of the available

cars on the basis of such orders and to ship the coal

loaded therein via the railroad which furnished the ears.

That as a result of said trackage agreement and rate

schedules, the Coal Company’s mines acquired the status

of mines located on and reached by the two railroads,

with the right, which it exercised, to order and receive

cars from, and to ship via, either or both on the basis of

such division of 100 per cent. of the mine ratings as its

judgment dictated; that said agreement and the Western

Maryland rate schedules did not name respondent’s mine

and he was denied the right to order and receive ears for

loading from, and to ship via, either or both of the rail-

ways as his judgment dictated. That respondent re-

quested your petitioners to accord his mine the status of

one located on both railways, with the right, subject to

the applicable rules and regulations, to order and receive

cars from, and to ship via, either or both as his judgment

dictated, but his requests were denied: that the Western

Maryland, although honoring the Coal Company’s orders

for cars and placing them for loading, refused to honor

respondent’s orders, and with a single exception refused

to place cars at his mine, whereupon he ordered cars, and

. received a reduced supply, from the Baltimore & Ohio;

that ‘‘the said discriminatory acts and practices were

unjust, unduly prejudicial and unlawful and in Violation

of the Interstate Commerce Act’’; that if permitted, he

would have chosen the Western Maryland and secured

his entire car supply therefrom, because it had a much

better supply than the Baltimore & Ohio, and would nave

shipped his entire output via the Western Maryland; and

I HOSEA BETO AE AISA AE ETE BSS Ni

Sain EAR,

Mies etme ROTOR: Sg a Bet sk SELES EAE EPA ARISE Le LIRR IG NEY NS NEI SD ARE

that his loss of profits on the additional coal he would

have produced and sold and his increased costs on the

coal actually produced and sold aggregated $57,735.11.

The proceedings before the Commission were referred

to (R. 5-7), and its two reports and order were exhibited

with and made part of the petition (R. 6, 8, 10, 12,31). As

to them the petition alleged in substance that he filed

with the Commission a complaint charging, among other

things, that the discriminatory acts and practices in fail-

ing and refusing to serve respondent’s mine with ears as

therein described were in violation of the Interstate Com-

merce Act, and praying an award of reparation for the

damages which he sustained as a result thereof. The

petition alleged in substance: that after hearing and in-

vestigation the Commission, in its first exhibited report,

held that ‘‘under the cireumstances’’ the respondent

should have been permitted to divide his orders for cars

to the respective carriers in such divisions of 100 per

cent. of the rating of his mine as his judgment dictated,

and cars should have been accordingly furnished in con-

formity with the supply of cars available on the respective

roads; that the Commission further found and concluded

in said report that the acts and practices of your peti-

tioners resulted in undue prejudice to him; that the ex-

cess mining costs, $9,283.14, and loss of profits, $48,451.97,

gave a total of $57,735.11, claimed by the respondent as

his damages; and that your petitioners did not question

the method or figures used by the respondent in this com-

putation.

But the petition further averred that by the second

exhibited report the Commission found that under the rule

of mitigation of damages, the respondent, by accepting

the offer made by your petitioners of 20 per cent. of his

supply from the Baltimore & Ohio and 80 per cent. from

AP LIA cs |

the Western Maryland, as he reasonably should have done,

could have increased his production and reduced his loss,

and that he had over-estimated the average car tonnage;

that thereupon the Commission revised the computations

“upon the said mitigation of loss-setoff and average

loading findings’’ and arrived at $12,838.31 as the re-

spondent’s damages, which your petitioners were ordered

to pay, with interest from April 1, 1923, amounting to

$17,524.29, and entered an order accordingly; that the

awarded reparation had not been paid.

The petition averred that ‘said mitigation of loss-

setoff and average loading findings’’ were beyond the

Commission’s power, erroneous in law, null and void;

that on January 17, 1930, respondent had filed in the

District Court, a bill alleging “said mitigation of loss-

setoff and average loading findings’? to be beyond the

Commission’s power, without warrant in law, null and

void, and praying a decree accordingly, annulling the

same, and that the Court order the Commission to reopen

the proceedings and to reconsider ‘said mitigation of

__ loss-setoff and average loading findings,’’ and make cor-

rected findings and a supplemental order consistent with

the order and decree of the Court (R. 8, 9).

BM BDLE NEE EE BE BEER ale DIRE ALO EE Bs ahs: a ‘

dis

That the respondent was entitled to judgment for said

$17,524.29, in accordance with the Commission’s order,

and an additional sum which would bring the total to

$57,735.11, with interest from April 1, 1923, and costs,

including reasonable attorneys’ fees.

Judgment was prayed for $97,735.11, with said in-

terest.

The first report of the Commission, made part of and

exhibited with said petition (R. 10) in substance found:

Beer te sense: PSI IAL MEH Sty

That the Western Maryland contracted with the Coal

Company for 65 per cent. of its fuel needs, and obtained

from the Baltimore & Ohio limited trackage rights for a

maximum of 90 carloads per day from the mines of the Coal

Company. That, with an apparently brief and immaterial

exception, under the car distribution rules in effect dur-

ing part of the period involved, as passed on by the Com-

mission, a mine served by two roads, if it confined its

orders to one road, was permitted to order 100 per cent.

of its rating from that carrier; that a mine served by

two cariers was not permitted to order cars in excess of

100 per cent. of its rating from both roads, but had a

right to order its full rating from either if it desired and

to divide its orders between the two roads as desired,

provided the combined orders did not exceed 100 per cent.

of its rating. That no opinion was expressed whether

the Coal Company was entitled to order ears in confor-

mity with rules for joint mines; and that except for a

trivial exception, which was later adjusted and did not

enter into the result, the Coal Company was restricted

in combined orders to both roads to 100 per cent. of its

rating. That it was agreed between your petitioners

and the Coal Company that the latter’s car supply would

be furnished by the Western Maryland and the Baltimore

& Ohio, respectively, in the proportions of 80 per cent.

and 20 per cent., which division was adapted to the needs

of the Coal Company based upon past shipments, and

that similar consideration was not given to the respon-

dent, who was advised that ears would be supplied by

both carriers only in the proportions of 80 per cent. and

20 per cent., as with the Coal Company.

That by fixing the proportion of the Coal Company’s

car supply to be furnished by the respective carriers, in

conformity with its customary shipments, and after con-

sultation with it, advantages were made available to it

in respect of markets, labor supply and efficient and eco-

east |

ec |

ne ee

PEGA OEE CWS

SMILE oP CAT REI EL WC SS RI A or NA

nomical working; that like consideration was not given to

respondent, but he was offered arbitrarily and without

regard to the requirements of his business, that which

had been arranged for his competitor after deliberation,

and such service would not have been similar or on a

basis of equality between shippers; that he was thereby

subjected to undue and unreasonable disadvantage; that

he should have been permitted to divide his car orders in

such divisions of 100 per cent. of the mine rating as his

judgment dictated, and cars should have been furnished

accordingly in conformity with car supplies on the re-

spective roads; and that respondent was entitled to repa-

ration for undue prejudice.

By the second exhibited report (R. 21), insofar as ma-

terial, it was found in substance that the respondent had

been offered a car supply on the basis of 20 per cent. by

the Baltimore & Ohio and 80 per cent. by the Western

Maryland, and he refused the same; that his alleged loss

was computed on an excessive tonnage per ear; that un-

der the rule that a party suffering a loss from breach of

duty ought to do what a reasonable man would do to

mitigate his loss, the respondent, by reasonable action in

accepting the 20-80 offer, could have increased his pro-

duction and diminished his loss, and to the extent of his

failure to do so he could not be compensated; that for

the undue prejudice respondent was damaged $12,838.31,

for which, with interest, he was entitled to reparation,

and your petitioners were jointly and equally responsible,

The reparation order was for $1 2,838.31, with interest

from April 1, 1923 (R. 31).

The respondent unsuccessfully endeavored to rid him-

self of the reparation order by the suit in equity averred

in the petition, with the result and reported as already

stated.

i ESE RET BEVIN TRIO RG BOGGS EDEN REY ZOO NE Sal a ERIE HR = Sow has ba

Te ae ree — ~ y om ee ee tack

Poe tO eure sinhy Dak GO IE Te, RABE STAINS Seen ake FETA

Your petitioners demurred to the petition in the pres-

ent action, generally as insufficient in law, and specially

for the reasons that it was for a sum in excess of the

Commission’s award, and that the District Court, as a

court of law, could not ‘‘consider, review, revise or re-

verse’’ the award (R. 33, 34). After the demurrers were

overruled, there was a jury trial, resulting in the judg-

ment appealed from (R. 39).

II.

QUESTIONS PRESENTED.

1. In an action at law by the shipper in the District

Court, consequent on failure or refusal of the carrier to

pay the amount of the Commission’s reparation award,

are the shipper’s right of action and the Court’s jurisdic-

tion limit in maximum amount to the sum awarded by

the Co.smission’s reparation order, with interest, or

cal a greater amount be sued for and recovered?

2. In such an action at law following the Commis-

sion’s reparation award of less than the shipper’s claim,

can the Court, at the instance of the shipper, adjudge

that the Commission’s award or findings diminishing the

award in amount, were beyond the Commission’s power

or erroneous as a matter of law, and therefore void and

without legal effect, and adjudge a recovery greater than

the sum awarded by the reparation order, with interest?

3. Is it lawful and within the power of the Commis-

sion, in a report or an order of reparation, to find that

the shipper has not complied with the rule that it is the

duty of a party suffering loss to do what a reasonable

man would, to mitigate his loss, and to apply that rule

in diminution of the shipper’s claim, and in its findings

and order to refuse recovery of the amount by which the

shipper could so have mitigated his loss?

ROSSINI Bee |

Fi ae ta a

Se ee |

4. In such an action at law can the Court, at the in-

stance of the shipper, adjudge that the amount of the

Commission’s findings and award diminished by the Com-

mision’s finding that the shipper could have mitigated

his loss by application of the rule as to mitigation of

loss stated in the preceding Question 3, was beyond the

Commission’s power or erroneous as a matter of law,

and therefore void and without legal effect, and adjudge

a recovery of damages undiminished by such mitigation

of loss?

5. In such an action at law is it material in respect of

the amount recoverable, whether or not the proceedings

before the Commission involved an administrative ques-

tion, and so were compulsory on the shipper, or whether

or not the shipper could have sued without first proceed-

ing before the Commission, rendering the proceedings

before the Commission voluntary; and if material, were

the proceedings before the Commission administrative

and a compulsory condition precedent to the suit?

t. In such an action at law can the Court, at the in-

stance of the shipper, permit recovery of damages for al-

leged discrimination, where he was tendered the same

proportions of car supply as his competitor was given,

where, to allow the complaining shipper the proportions

* demanded by him, would in fact have accorded him an un-

due preference?

bee SESE eae

MS ita eater e oS

bias

IIT.

REASONS FOR ALLOWANCE OF THE WRIT.

1. The Cireuit Court of Appeals has decided impor-

tant questions of Federal law, which have not been, but

should be, decided by this Court.

(a) In relation to the above Questions 1 to 4, both

inclusive, this Court has never decided, that by re-

jection in whole or in part, the Commission’s findings

denying reparation or disappointing his expectation

as to amount, or because of the earrier’s failure or

refusal to pay the amount awarded, the shipper, by

action at law for a greater amount, can obtain a so-

called ‘‘court review’’ or a judicial reversal or an-

nulment of the findings and order as beyond, or in

abuse of its power, or contrary to law, and so obtain

a greater recovery.

(b) In relation to Questions 1 to 5, both inclusive,

this Court has never decided that under the Inter-

state Commerce Act, Section 16(2), the Court can

adjudge recovery of an amount greater than the

amount of the Commission’s award, whether the pro-

ceeding before the Commission was voluntarily elee-

tive under Sections 8, 9, 16(1), 16(2) and 22, or ad-

ministrative and compulsory under those sections

and Section 13, and the general decisions defining

the scope and purposes of the Act and the adminis-

trative powers and discretion of the Commission.

in an action at law, following the failure or refusal

of a carrier to pay the amount of the Commission's

reparation order, the order, to the extent of its dimi-

nution or partial rejection of the shipper’s claim,

Was an unreviewable negative order,

ELUDES Ns Me OE 2 “nd

It is important to shippers and earriers that these ques-

tions be determined; and that it be determined whether

in a judicial contest, for the protection of the public's,

as well as the carrier’s, interest, by diminution of its

expenditures, the carrie: throws everything to the hazard

and gambles on the result by waiver of the limit of the

award,

Bn at 28. ts ete eae ie

This Court has never given or sustained such a re-

view or a recovery greater than the Commission's award,

with interest; nor held that a reparation award less than

that claimed is, as to the diminution, other than an un-

reviewable negative order; nor held that the measure of

recoverable damages is different before the Commission

_ than in the Court. In the limitation of the recoverable

damages to the amount awarded by the Commission, the

public has an interest which the carrier cannot lawfully

waive.

Ma age Seo

bey

2. The Cireuit Court of Appeals has decided ques-

tions in a way probably in contlict with applicable deci-

sions of this Court.

(a) In relation to the above Questions 1 to 4, both

inclusive, even if the precise questions are undecided

by this Court, the decision of the Circuit Court of

Appeals is probably in conflict with the decisions of

this Court, or the principles to be extracted from

them.

(b) In relation to Question 5, there is a clear con-

flict with the applicable decisions of this Court hold-

ing an attack before the Commission, not on the

carriers’ rule or practice, but on the alleged unequal

application, or the alleged violation or discrimina-

tory enforcement, (here the apportionment on the

basis of Western Maryland, 80 per cent., and Balti-

D6 er ee wes . PRA INg Bae ee ’ >

more & Ohio, 20 per cent.), of the rule or practice,

does not involve an administative question; and that

in the latter instance the Commission proceeding or

reparation order is not a condition precedent to suit

in the District Court.

3. The Cireuit Court of Appeals has rendered a decei-

sion in conflict with decisions of other Cireuit Courts of

Appeals.

(a) In relation to the above Questions 1 to 4, both

inclusive, it is in conflict with the decisions of the

Cireuit Court of Appeals for the Ninth Cireuit in

Chicago, B. d& Q. R. Co. v. Feintuch, 191 Fed. 482,

486, the Cireuit Court of Appeals for the Third Cir-

cuit in Western New York & P. R. Co. v. Penn Refin-

ing Co., 187 Fed. 348, 353, and the Cireuit Court of

Appeals for the Seventh Circuit in Bartlesville Zinc

Co. v. Mellon, 56 F. (2d) 154, certiorari denied,

Bartlesville Zinc Co, ». Mills, No. 66, Oct. Term, 1932,

as well as with the decision of the Court of Appeals

of the District of Columbia in Southern Transp. Co.

v. Interstate Commerce Com., 47 F. (2d) 411.

A certified transcript of the record accompanies this

petition,

Wherefore, your petitioners respectfully pray that a

writ of certiorari be issued out of and under the seal of

this Honorable Court, directed to the United States Cir-

cuit Court of Appeals for the Fourth Cireuit, command-

ing that court to certify and to send to this Court for its

review and determination, on a day certain to be therein

named, a full and complete transcript of the record and

all proceedings in the ease numbered and entitled on its

docket No, 3283, The Baltimore and Ohio Railroad Com-

pany, a corporation, and Western Maryland Railway

' ‘ iY spate 9 a ai Pe te “ a

ei POA IIa Ente se Neaee pa re ae sige YS re spl iP “4 seus

r LEBER EH NTL SEL PEED AE, POEL AA EEE ILENE DAR BILL TR RENRERSRLMALEE ORL EGD TE

FBS OF ET OS CaS tbe Sire Nae _ nand -

Company, a corporation, Appellants, v. A. Spates Brady,

Appellee, that the said judgment of said United States

Circuit Court of Appeals may be reversed by this Hon-

orable Court, and that your petitioners may have such

other and further relief in the premises as to this Hon-

orable Court may seem meet and just; and your peti-

tioners will ever pray.

THE BALTIMORE AND OHIO RAILROAD COMPANY,

WESTERN MARYLAND RAILWAY COMPANY,

Petitioners.

GEORGE M. HOFFHEIMER,

CHARLES R. WEBBER,

EUGENE 8. WILLIAMS,

E. A. BOWERS.

WILLIAM C. PURNELL,

Counsel for Petitioners.

panies ¢

;

“re eer eam

Supreme Court of the United States

OCTOBER TERM, 1932.

THE BALTIMORE AND OHIO RAILROAD COM-

PANY, A CORPORATION, AND WESTERN

MARYLAND RAILWAY COMPANY, A COR-

PORATION, Perririonerrs,

versus

A. SPATES BRADY, Responpenr.

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

OPINION BELOW.

The District Court rendered no written opinion. The

opinion of the Circuit Court of Appeals, reported as Bal-

timore € O. R. Co. v. Brady, 61 F. (2d) 242, is at page

89 of the record. The relevant Interstate Commerce

Commission reports are reported as Brady v. Baltimore

€ O. R. Co, 112 1. C. C. 244; 152 1. C. C. 327; (R. 10, 21).

A specially constituted District Court, pending this ac-

tion, denied to Brady, respondent herein, an injunction

to annul that part of the Commission’s order awarding

him less than he claimed and recovered, the opinion being

reported as Brady v. Interstate Commerce Com., 43 F.

(2d) 847, and this Court affirmed that decree, Brady v.

, aK ° ORL O ED

—_——— ASRS MF AEDT A SIE SRT MP BEAK

United States, 283 U. S. 804. There were opinions refus-

ing to sign (Brady v. Baltimore & O. R. Co., 56 F. (2d)

231; R. 71), and refusing a mandamus to compel signa-

ture of, bills of exceptions (Baltimore & O. R. Co. v.

Baker, 58 F. (2d) 627; certiorari denied, Baltimore & O.

R. Co. v. Baker, No. 121, October Term, 1932).

JURISDICTION.

The judgment of the Circuit Court of Appeals was

entered October 17, 1932 (R. 107). The jurisdiction of

this Court is invoked under Section 240(a) of the Judi-

cial Code as amended (USCA, Tit. 28, Ch. 9, See.

347). (See Arizona Grocery Co. v. Atchison, T. & S. F.

R. Co., 284 U. 8. 370; Southern R. Co. v. Eagle Cotton Oil

Co., 284 U. S. 675; Lewis-Simas-Jones Co. v. Southern

Pac. Co., 283 U.S. 654).

STATEMENT.

The principal facts have been set forth in the petition,

pages 1 to 9, and in the interest of brevity are not

repeated here. The relevant parts of the important

statutes are set out in an appendix.

ERRORS ASSIGNED.

All of the errors assigned in the Specification of Er-

rors hereinafter are intended to be urged. In the Circuit

Court of Appeals (R. 89), they were embraced by As-

signments of Error Nos. 1 and 61 (R. 40, 63; Slacum v.

Pomery, 6 Cranch, 221, 223, 225; Teal v. Walker, 111 U.

S. 242, 246; Nalle v. Oyster, 230 U. S. 165, 176; Denver

County Com’rs. v. Home Sav. Bank, 236 U. S. 101. re-

versing Board of Commissioners v. Home Sav. Bank,

200 Fed, 28, 32; Fleischmann Constr. Co. v. United States,

270 U. S. 349, 355, 356).

i ——

Poa q |

. S

SPECIFICATION OF ERRORS.

1. The Circuit Court of Appeals erred in holding that

in an action at law by the shipper in the District Court

consequent on failure or refusal of the carrier to pay the

amount of the Commission’s reparation award, the ship-

per’s right of action and the Court’s jurisdiction were

not limited in maximum amount to the sum awarded by

the Commission’s reparation order, with interest, and

that a greater amount could be sued for and recovered.

2. The Cireuit Court of Appeals erred in holding that

in such an action at law in the District Court after the

Commission’s reparation award of less than the shipper

claimed, the District Court, at the instance of the ship-

per, could adjudge that the Commission’s award or find-

ings diminishing the award in amount, were beyond the

Commission’s power or erroneous as a matter of law and

therefore void and without legal effect, and could there.

fore adjudge a recovery greater than the amount awarded

by the reparation order, with interest.

3. The Cireuit Court of Appeals erred in holding that

it was not lawful or within the power of the Commission

in its reports and order of reparation to find that the

shipper had not complied with the rule that it is the duty

of a party suffering loss to do what a reasonable man

would to mitigate his loss, and to apply that rule in

diminution of the shipper’s claim, and in its findings and

order to refuse recovery of the amount by which the

shipper could so have mitigated his loss.

4. The Circuit Court of Appeals erred in holding that

it Was not lawful and within the power of the Commis-

sion to find in its reports and order of reparation that

the failure or refusal of the shipper to accept 20 per

cent. of his car supply from The Baltimore and Ohio Rail-

a 7 =—

SE Ne er iar se eee ae WRAL AAS ESR SIRT LARS DORIS

road Company and 80 per cent. from the Western Mary-

land Railway Company did not comply with the rule that

it is the duty of a party suffering loss to do what a rea-

sonable man would to mitigate his loss, and in its findings

and order of reparation to apply that rule in diminution

of the shipper’s claim.

5. The Circuit Court of Appeals erred in holding that

in such an action at law by the shipper, the Commission’s

finding that his loss could have been mitigated by accept-

ance of his car supply in the proportions offered by the

carriers and the order diminishing the reparation to that

extent, were beyond the Commission’s power or erroneous

as a matter of law, and therefore void and without legal

effect, and that the District Court could so adjudge and

grant a recovery of damages undiminished by such miti-

gation.

6. The Circuit Court of Appeals erred in holding that

the proceeding before the Commission involved an attack

on a rule or practice of the carriers as to the car supply

from each, and therefore an administrative question, and

that the proceeding before the Commission was compul-

sory and a condition precedent to suit in the District

Court; and in not holding that the attack was on an un-

equal application or a violation or discriminatory enforce-

ment of the car supply rule, for which the shipper could

have sued without proceeding before the Commission,

rendering that proceeding elective and voluntary.

¢. The Circuit Court of Appeals erred in declining to

hold that the refusal of petitioners to give respondent

more cars than 80 per cent. Western Maryland and 20

per cent. Baltimore & Ohio resulted in no discrimination

against respondent and no damage to him.

— a

SUMMARY OF ARGUMENT.

The shipper’s right of action and the District Court’s

jurisdiction were limited in maximum amount to the sum

awarded by the Interstate Commerce Commission’s rep-

aration order with interest, and the District Court could

not grant recovery of a greater amount.

1, This Court has never directly decided the precise

question above stated, as to the limitation of recovery by

the amount of the reparation order, with interest, but the

decision of the Cireuit Court of Appeals is probably in

conflict with the underlying principles and the language

of applicable decisions of this Court as to Section 16(2)

of the Interstate Commerce Act, and is in conflict with

decisions of two other Circuit Courts of Appeals.

2. This Court has never sustained a recovery in ex-

cess of the award with accrued interest, whether or not

the proceeding before the Commission was voluntary or

elective, or administrative and compulsory.

3. This Court has not held that a reparation order

less in amount than the sum claimed, is, as to the disal-

lowance, other than an unreviewable negative order. The

implication of the decisions has been that such an order,

as to the amount disallowed, is negative and unreview-

able.

4. This point that the amount of the reparation order,

with interest, is the limit, is not foreclosed by the decis-

ions as to the scope of Section 16(2).

\. The ‘full contestation”’ is the shipper’s right to

sustain the award by extrinsic evidence, and the carriers’

PRE hp RENEE ASG BONNIER I EAI PIR A I SDE SLT OE FIL ELLE ATE OS

right to overcome it by evidence showing that the Com-

mission was wrong.

6. The carrier does not and cannot throw everything

to the hazard and gamble on the result in contesting the

Commission’s award. The analogies are against the

lower Court’s construction of Section 16(2). A carrier

cannot lawfully waive or be estopped against anything

falling within the purview of the Act. There is a public

interest in a carrier’s expenditures and in the prevention

of preferences and discrimination.

7. The penalty for unsuccessfully contesting the Com-

mission’s award is payment of the shipper’s attorney’s

fees and court costs.

II.

The shipper’s petition in the District Court showed

that the Commission reached the amount of the order of

reparation by disallowing the sum by which the loss

would have been minimized or avoided if he had accepted

the offered proportions of car supply. The petition at-

tacked the disallowance and sought its elimination, with-

out which the verdict and judgment could not have been

reached. Therefore the petition was insufficient to sup-

port the judgment. This is apart from the fact that the

Commission’s reports, including its findings and its or-

der, were exhibited with and made part of the shipper’s

petition in the District Court.

1. The respondent’s petition showed that the verdict

and judgment included the damages denied by the Com-

mission because of failure of the respondent to do what

a reasonable man would have done to avoid, minimize or

mitigate his damages by accepting the apportionment

of the car supply offered by the carriers.

2. That petition exhibited and made part thereof the

Commission’s reports and reparation order. It cannot

now be dismembered to eliminate the reports and order.

A pleading must be taken most strongly against the party

pleading.

3. The measure of damages in a reparation proceed-

ing before the Commission and in a court is the same.

4. Both before the Commission and in the court, it is

the duty of a party injured by breach of contract or tort

to avoid, minimize or mitigate his damages by doing what

a reasonable man would do.

d. The rule of avoidance, minimization or mitigation

of damages does not constitute a so-called ‘‘loss-setoff,’’

involving two findings, but is a rule that the damages

assessable are only those which are the direct or natural

consequence of the breach of contract or tort, and that

damages, to the extent that they could have been avoid-

ed, minimized or mitigated, resulted from the act or neg-

lect of the plaintiff and not of the defendant.

6. The duty of minimization or mitigation is not

changed by the fact that it can only be obtained by ac-

ceptance of goods or services from the party in default.

III.

There was no administrative question requiring the re-

spondent to proceed before the Commission for rep-

aration. The limitation of recovery to the amount of the

reparation order resulted from his own voluntary elec-

tion of remedies. If there was an administrative ques-

tion compelling procedure before the Commission, he

pursued a right created by statute, coupled with a statu-

tury remedy which was exclusive, and was subject to the

LEER Bai BRL LE ENERO RG ELITR AF III ABE ANY SENSE IL LEGON NEL LN AT

himitation imposed by the statute. The Commission did

not sustain the shipper on, or even decide, the admini-

strative question, if any. By unsuccessfully raising an

administrative question he could not evade the limitation

of recovery to the amount of the reparation order.

1. Respondent voluntarily elected to proceed before

the Commission for reparation, when he could have sued

in court in the first instance. The limitation of the re-

covery to the amount of the reparation order is the result

of his voluntary election.

2. If the Commission’s reports be eliminated, the pe-

tition is left in the state of alleging that the Commission

found that the respondent had been unjustly discrimi-

nated against in not having been allowed to divide his

car orders as his judgment dictated, without stating how

or why the Commission reached that conclusion. Under

the rule that a pleading must be taken most strongly

against the pleader, it cannot be presumed that the ques-

tion presented to the Commission was administrative.

SO CRON Se ERR OE ER

ARG Kak RS

SRA.

3. Unless unpleaded facts are presumed in favor of

: the petition standing alone, and more strongly if the ex-

3 hibited orders are read as part of the petition, under the

accepted test of an administrative or non-administrative

question, the matter before the Commission was not

whether the carriers’ rules and regulations were unreas-

onable or discriminatory but whether the carriers vio-

lated them or enforced them in a discriminatory way, and

was not administrative.

PREIS:

vat R Sates

4. If there was an administrative question compelling

respondent to go before the Commission, he pursued a

new right created by the statute, coupled with a pro-

vision for a special statutory remedy and subject to the

3 ‘“

ony

MB er meen REIS TAVARES REESE NOL INTEL ROR VEAL ERY PUURE NIMES Cara ts ec 1p CRAG AUR EET YS SAMIR STD A OE

limitations which the statute prescribed, one of which

was the limitation of the recoverable amount by Section

16(2) to the sum awarded by the Commission, with in-

terest.

5. If the respondent’s complaint before the Commis-

sion raised an administrative question, he did not sustain

that proposition and the Commission did not decide the

case on that basis. The Commission’s decision was really

that because, in fact, the Coal Company had been al-

lowed to divide its car requisitions in accordance with its

own judgment, based on its own business requirements,

respondent was entitled to divide his requisitions in

accordance with his own business requirements as his

judgment interpreted them; and that in failing to pro-

ceed in that way there was unjust discrimination against

respondent. If, therefore, respondent raised before the

Commission an administrative question, he was unsuce-

cessful on that point and he could not, by raising a ques-

tion as to which he was unsuccessful, evade in court the

limitation to the amount of the reparation order under

Section 16(2).

IV.

There was no res adjudicata in Brady v. Interstate

Commerce Commission, 43 F. (2d) 847, and Brady v.

United States, 283 U.S. 804.

1. Res adjudicata was not pleaded by respondent.

2. The Brady Case, above cited, was dismissed for

want of jurisdiction. The statements of the statutory Dis-

trict Court as to the administrative character of the ques-

tion and the recoverable amount were obiter dicta.

— —— VERY ATS Ry hORE POI APPA NNO DORE SEA IRIN ERT 6 I,

r Bea UER eRe EIT Sp Et SE NTA A oa lt Ng SR ER BES ASRS ce NENA NEREDRON GITS

3. The reasons of this Court for the affirmance in

Brady v. United States, supra, can only be inferred from

the citations in the memorandum opinion. It is thought

that a proper interpretation shows that the decree was

affirmed on the grounds (1) that the Commission’s order

minimizing the recovery was negative as to the amount

disallowed, and (2) that even if the question of discrimi-

nation was an administrative question as claimed by the

respondent, there could be no review of the facts found

by the Commission in respect of the administrative ques-

tion. The memorandum opinion does not show that this

Court regarded an administrative question to have been

present or decided by the Commission. The citations

demonstrate that this Court did not pass upon the ques-

tion whether Section 16(2) limited recovery in court to

the amount of the reparation order.

4. The general expressions in the opinion in Brady

v. Interstate Commerce Commission, supra, not essential

to dispose of that case, do not control or determine the

effect of the decree in the present case.

The respondent not only was limited in recovery by

the amount of the Commission’s award, but suffered no

discrimination or recoverable damages.

There was no discrimination against respondent, for

he was offered the same car service that was given his

competitor. To have permitted him to receive a higher

percentage from the better car supply of the Western

Maryland than was given his competitor would have re-

sulted in unlawful discrimination in his favor. That be-

ing true the petition, when read with the exhibited re-

ports showed that the respondent had no right of action.

ARGUMENT.

THE SHIPPER’S RIGHT OF ACTION AND THE DISTRICT

COURT'S JURISDICTION WERE LIMITED IN MAXIMUM AMOUNT

TO THE SUM AWARDED BY THE INTERSTATE COMMERCE COM-

MISSION’S REPARATION ORDER WITH INTEREST, AND THE

DISTRICT COURT COULD NOT GRANT RECOVERY OF A GREATER

AMOUNT.

This Court has never directly decided the precise ques-

tion whether or not the amount of the reparation order

limited the amount of recovery in the District Court.

But the decision of the Cireuit Court of Appeals is prob-

ably in conflict with the underlying principle and the

language of applicable decisions of this Court, and is

plainly in conflict with decisions of other Cireuit Courts

of Appeals.

By Section 16(2) it is enacted that, ‘If a carrier does

not comply with an order for the payment of money

within the time limit in such order, the complainant * * *

may file * * * a petition setting forth briefly the causes

for which he claims damages and the order of the Com-

mission in the premises.”’

This Court has not decided that a shipper can sue for,

or that the District Court can adjudge recovery of, an

amount greater than the Commission’s award, whether

the proceeding before the Commission was voluntarily

elective under Sections 8, 9 and 22, or administrative

and compulsory under those sections and Section 13 and

the general decisions such as Texas & P. R. Co. v. Abilene

Cotion Oil Co., 204 U. S. 426, defining the scope and

purpose of the Act and the administrative powers and

discretion of the Commission.

a Rina 2

— enc eget face roy ‘

€

ieee BRAINS BG RESIOGE SR REELED ILC BA EGA EDCRATES EN BE

DENNER A TRAP Ro aa EE

In no case has this Court sustained a recovery in

excess of the Commission’s award with accrued interest

(Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 422;

Meeker v. Lehigh Valley R. Co., 236 U. S. 434; Mills v.

Lehigh Valley R. Co., 238 U. S. 473, 476; Southern Pac.

R. Co. v. Darnell-Taenzer Lbr. Co., 245 U. S. 531, 533;

Pennsylvania R. Co. v. Minds, 250 U. S. 368; Pennsyl-

vama R. Co. v. Weber, 257 U. S. 85, 86, 90; Louisville &

N. R. Co. v. Sloss-Sheffield S. & 1. Co., 269 U. 8. 217,

239).

In Standard Oil Co, v. United States, 283 U. S. 235,

240, laying aside the absence of jurisdiction to ‘‘enjoin,

set aside, annul or suspend, in whole or in part,’’ ‘‘pure-

ly negative orders,’’ and the holding that the courts do

not review the Commission’s decision on an adminis-

trative question, in the absence of suggestion that it had

acted arbitrarily or without evidence or had transcended

its constitutional or statutory powers, it was decided that

the petition for a direction to the Commission to grant

the prayer of the complaint before it was only ‘‘a pre-

liminary step toward obtaining, by a decision upon the

merits of the claims, the same relief it failed to secure

from the Commission ;’’ and was ‘‘nothing less than an

attempt to avoid the statute by indirection.’’ Speaking

of Section 9, evasion of which was not permitted in order

to enable the shipper to obtain more than the nothing

given by the Commission, it was said:

‘‘Section 9 of the Interstate Commeree Act * * *

provides that a claim for damages against a com-

mon carrier may be brought before the Commission

by complaint, or by an action in a federal district

court of competent jurisdiction, but that the claim-

ant or claimants ‘shall not have the right to pursue

both of said remedies, and must in each case elect

which one of the two methods of procedure herein

provided for he or they will adopt.’ Having elected

ot PRAT PELE AE OE TY ANE ORI PRT ORE ET Re AE INS

to proceed and having proceeded to a determination

before the Commission, appellant was, by force of

this provision, precluded from seeking reparation

upon the same claims by the alternative method of

procedure.”’

In Chicago, B. € Q. R. Co. v. Feintuch, 191 Fed. 482,

486, and Western New York & P. R. Co. v. Penn Ref. Co.,

137 Fed. 343, 363, the Circuit.Courts of Appeals of the

Ninth and Third Circuits flatly held that there could be

no recovery beyond the amount awarded by the Com-

mission.

‘‘A course of precedents and judicial proceedings in

Courts of Justice make the law’’ (Wilkes v. The King,

Wilmott, 322, 330; Gordon v. Ogden, 3 Pet. 33, 34; Illi-

nois Central R. Co. v. Turrill, 110 U.S. 301, 304), and the

general acquiescence by the profession, in suing for no

more than the amount of the reparation order (except in

the unsuccessful attempts in Standard Oil Co. v. United

States, and Brady v. United States, supra, and except

the course pursued in Pennsylvania R. Co. v. Clark

Brothers Coal Min. Co., 238 U.S. 456, 472, where the ad-

ditional claim for discrimination in car distribution had

never been brought before the Commission, and need not

have been brought there), are cogent proof that no more

than the amount of the Commission’s award could be sued

for. If there is no direct decision of this Court, it has

been because, ‘‘the clearer a thing is, the more diffieult

it is to find any express authority or any dictum exactly

in point’? (Keighley v. Durant, (1901) A. C. 240; Panama

€ S. P. Tel. Co. v. India Rubber, éc., Works Co., (1875)

L. R. 10 Ch. 526). The absence of previous decision is

good reason for granting the review herein applied for

and deciding it now.

ae |

PRED ERR METAL NLA Fig AL PCE, OUTLET ALTAR NETTIE PL AINA NE

Nor has this Court held that a reparation order less

in amount than the sum claimed is, as to the diminution,

other than an unreviewable negative order (Standard Oil

Co. v. United States, 283 U. S. 235, 238; Brady v. United

States, 283 U.S. 804. See Chicago, B. é Q. R. Co. v. Fein-

tuch, 191 Fed. 482, 486; Western New York & P. R. Co.

v. Penn Ref. Co., 137 Fed. 343, 353; Bartlesville Zinc Co.

v. Mellon, 56 F. (2d) 154, certiarori denied, Bartlesville

Zine Co, v. Mills, No. 66, Oct. Term, 1932; Southern

Transp. Co. v. Futerstate Commerce Com., 47 F. (2d) 411;

Manufacturers’ R. Co. v. United States, 246 U. 8. 457,

b 482, 483; Alton R. Co. v. United States, 58 F. (2d) 399,

; 402; Powers v. Cady, 9 F. (2d) 458, 462, 463). The im-

plication of the decisions has been that such an order as

# to the amount disallowed, is negative and unreviewable.

4 By the plain language of Section 16(2) suit can be

brought by the shipper only if the carrier refuses to pay.

Therefore, if the carrier pays or tenders the amount,

however small, of the reparation awarded by the Com-

mission there can be no suit.

This point that the amount of the reparation orde1

with interest, is the limit, is not foreclosed by the lan-

guage of Meeker v. Lehigh Valley R. Co., 236 U. S. 412,

422, and the cases following it. The statiaeeiast in those

cases that Section 16 of the Act, ‘‘only establishes a re-

buttable presumption,’’ ‘‘euts off no defense, interposes

no obstacle to a full contestation of all the issues and

ae no question of fact from either court or jury,’’ and

: ‘tat most, therefore, it is merely a rule of evidence’? and

; ‘does not abridge the right of trial by jury or take away

any of its incidents,’’ proves no more than this ,—that,

whether the shipper has gone before the Commission by

voluntary election, or compulsorily because he has had to

pursue @ statutory right by a statutory remedy with its

’

“. BELL LOR LION NAIL UA GRIN pe PSION Ge BER CASA SY ENE AT GR THEME OTT IN RNS —

OMEN rm

* Ag WITT Ce

limitations, the carrier, haled before the Commission in-

voluntarily, is entitled to a jury trial and can still invoke

all defenses. It is true that, while the Commission’s find-

ings and order are prima facie evidence, the complaining

shipper may adduce additional evidence; but that is only

additional evidence to support the findings and order and

to overcome the carrier’s evidence combatting them. But

the prima facie character of the evidence, allowance of

all defenses and right to contest all issues, does not dis-

prove that the Commission’s order has the further func-

tion of limiting the amount which can be sued for or re-

covered, As to that it is binding.

In Lowisville € N. R. Co. v. Ohio Valley Tie Co., 242

U.S. 288, 291, although assumed that the shipper had un-

necessarily obtained a reparation order from the Com-

mission, it was said that the rule of damages before the

Commission ‘‘could hardly be different from that p2 oper

for the’? Court. As to the reparation award, it was said

of Section 16:

‘By the same section, if the carrier does not com ply

in due time with the order, the complainant may sue

ina state court,—which implies that if the order has

been complied with and the money paid no suit can

be maintained, It is to be noticed further that repa-

ration before answer is contemplated as possible by

Section 13, and in that case the carrier shall be re-

lieved of liability to the complainant, though only, of

course, for the particular violation of law. The de-

cisions say that whatever the damages were, they

could be recovered (Pennsylvania R. Co. v. Inter-

national Coal Min. Co., 230 U. 8. 184, 202, 203;

Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 429) ;

and that the statute determines the extent of dam-

ages (Pennsylvania R. Co. v. Clark Bros. Coal Min.

Co., 238 U. S. 456, 472). We are of opinion that all

damage that properly can be attributed to an over-

charge, whether it be the keeping of the plaintiff out

RNae seh SRE Genter Se ARIE LER AMD LIIOE SALEM NE MILA OR LIBERTE LEIS ETERS IO BOTS CHRD ,

of its money, dwelt upon by the trial court, or the

damage to its business following as a remoter result

of the same cause, must be taken to have been con-

sidered in the award of the Commission and compen-

sated when that award was paid.”’ (Italics ours).

In Pennsylvania R. Co. v. Clark Bros. Coal Min. Co.,

238 U. S. 456, 471, where the case had been before the

Commission under claim that the carrier’s rule was un-

reasonable, it was held that the shipper was governed by

the Federal statute in the measure of damages, and could

not, in advance of an award by the Commission, proceed

for treble damages under the State statute. It was said

that the shipper, having invoked the Federal right,—

‘*Tt was not possible for the plaintiff to ignore the

statute it had thus called into play, and disregard

its provisions for the purpose of measuring relief by

local standards. The Federal statute governed the

plaintiff no less than the defendant. In the situation

in which the plaintiff stood after the Commission’s

finding, that statute determined the extent of the

damages it was entitled to recover with respect to

interstate sales and shipments, and the plaintiff was

not free to seek another remedy in the state court,

and there to secure treble damages under the state

statute with respect to the same transactions.

‘*This is not to say that the finding of the Commis-

sion as to the amount of damages has any other ef-

fect than that prescribed in Section 16 of the act.

It is simply to hold that the plaintiff, having de-

manded and obtained the appropriate ruling from the

Commission as to the discrimination which had been

practised, was then entitled to proceed for the recov-

ery of damages in accordance with the act, and not

otherwise. The fact that the Commission had not

made its award of damages at the time the action

was brought is immaterial. The proceeding before

the Commission was pending and the plaintiff’s right

and remedy were fixed by the Federal act.’’

ee~*Ho¥~"" NS i ee

All the cases show that the ‘‘full contestation’’ is ne

more than a right of the shipper to sustain the Commis-

sion’s award by extrinsic evidence, and a right of the

carrier to overcome it by evidence showing that the Com-

mission was wrong.

In Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 430,

it was said:

‘*This provision only establishes a rebuttable pre-

sumption. It cuts off no defense, interposes no ob-

stacle to a full contestation of all the issues, and

takes no question of fact from either court or jury.

At most, therefore, it is merely a rule of evidence.

It does not abridge the right of trial by jury, or take

away any of its incidents.’’ (Italics ours).

The right of ‘‘contestation of all issues’’ is thus shown

to be a right which ‘‘cuts off no defense.”’

In Mills v. Lehigh Valley R. Co., 238 U. S. 473, 482, it

was said:

“The statutory provision merely established a

rule of evidence. It leaves every opportunity to the

defendant to contest the claim.’’ (Italies ours).

In Spiller v. Atchison, T. € S. F. R. Co., 253 U. S. 117,

131, it was said:

‘*And the fact that a reparation order has at most

only the effect of prima facie evidence * * *, being

open to contra Jiction by the carrier when sued for

recovery of the amount awarded, is an added reason

for not binding down the Commission too closely in

respect of the character of the evidence it may receive

or the manner in which its hearings shall be con-

ducted.’’ (Italies ours).

LEV ONEGL EES SEL BALI ARLEN CDS BEAN LIGE PG BEB

In Mitchell Coal & Coke Co. v. Pennsylvania R. Co.,

230 U. S. 247, 258, this Court said:

‘‘They [the Commission’s orders] are quasi judi-

cial and only prima facie correct in so far as they

determine the fact and amount of damage,—as to

which, since it involves the payment of money and

taking of property, the carrier is, by Section 16 of

the act, given its day in court and the right to a

judicial hearing.’’ (Italics ours).

And in Pennsylvania R. Co. v. Weber, 257 U.S. 85, 90,

it was said:

‘These cases [Meeker and Mills Cases] have dis-

posed 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 Com-

mission, in view of the statutory provisions as to its

character.’’ (Italics ours).

In Pennsylvania R. Co. v. Clark Bros. Coal Min. Co.,

238 U.S. 456, 472, previously quoted, the implication is

similar.

If the Commission awards nothing, likewise there can

be no suit. The carrier has nothing to pay or tender and

therefore does not refuse to pay. The Commission’s

refusal of reparation is only an unreviewable negative

order, and the order or the carrier’s omission to pay

what has not been ordered, cannot be circumvented, as

shown by the Standard Oil Co. Case, 283 U. S. 239, 237,

238, in which all reparation was refused and there was

denial of an injunction against dismissal by the Commis-

sion of complaints to recover damages for overcharges,

and to compel the Commission to grant the complainant’s

prayer, a finding of overcharge and, if necessary, a fur-

ther hearing to determine the amount.

In the instance of this very reparation order, Brady v.

United States, 283 U.S. 804, affirming the decree of dis-

missal of Brady v. Interstate Commerce Com., 43 F. (2d)

847, in a memorandum opinion, the citation of the Stan-

dard Oil Co. Case, evinced the view that as to the diminu-

tion by the Commission of the damages the reparation

order was negative and unreviewable.

In Bartlesville Zinc Co. v. Mellon, 56 F. (2d) 154, cer-

tiorari denied, Bartlesville Zinc Co. v. Mills, No. 66, Oct.

Term, 1932, a mandamus to compel an award was re-

fused; and Southern Transp. Co. v. Interstate Com-

merce Com., 47 F. (2d) 411, a mandatory injunction to

compel the Commission to vacate a dismissal was denied.

An award for a given amount is a refusal of more, and,

as to the excess, the award is negative and cannot be re-

viewed. (Standard Oil Co. v. United States, supra;

Bartlesville Zinc Co. v. Mellon, supra, certiorari denied

Bartlesville Zine Co. v. Mills, supra; Southern Transp.

Co. v. Interstate Commerce Com., supra. See Manu-

facturers’ R. Co. v. United States, 246 U. S. 457, 482,

483; Alton R. Co. v. United States, 58 F. (2d) 399, 402;

Powers v. Cady, 9 F. (2d) 458, 462, 463).

The view of the Court below was, in effect, that the

carrier, by refusing to pay, waives the limit of the rep-

aration order, throws everything to the hazard and gam-

bles on the result in contesting the Commission’s award.

It is too often forgotten that when the public regulates

the railroads, it also regulates itself. The analogies are

against the lower Court’s construction of Section 16(2).

A carrier cannot lawfully waive, or be estopped against,

anything falling within the purview of the Act, because

there is a public interest in the carrier’s expenditures

and in the prevention of preferences and discrimination

4 TENE SE SRR NEI Re GRE

in respect of rates and service and limitation upon claims

and suits against it. Examples are the inability to waive

a bill of lading limitation of time of notice of claims or

suit (A. J. Phillips Co. v. Grand Trunk R. Co., 236 U.S.

662, 667; Georgia F. & A. R. Co. v. Blish Milling Co.,

241 U. S. 190, 197; Leigh Ellis & Co. v. Davis, 260 U. S. |

682), or a statutory limitation as to time of suit (Kansas

City Southern R. Co. v. Wolf, 261 U. 8. 133), or to waive

tariff rates or terms of service (Southern R. Co. v. Pres-

cott, 240 U. S. 632, 638); or to be estopped against col-

lection of the full legal tariff rate (Chesapeake & O. R.

Co. v. Martin, 283 U. S. 209, 222).

To subject the carrier refusing to pay a reparation

order to the risk of throwing off the limit would penalize

and discourage resort to the jury trial which the statute

contemplates. It would also permit the discrimination

which the whole Act intends to prevent, by discarding

the limit in favor of the shipper who sues, and insisting

on it by payment to the others. Section 8 of the Act

sufficiently penalizes the carrier for exercising his right

of contest to a jury trial, by rendering it liable for ‘‘a

reasonable counsel or attorney’s fee, to be fixed by the

Court in every case of recovery.’’ The carrier is also

liable for the recovering shipper’s ‘costs in the case.”’

II.

THE SHIPPER’S PETITION IN THE DISTRICT COURT SHOWED

THAT THE COMMISSION REACHED THE AMOUNT OF THE ORDER

OF REPARATION BY DISALLOWING THE SUM BY WHICH THE

LOSS WOULD HAVE BEEN MINIMIZED OR AVOIDED IF HE HAD

ACCEPTED THE OFFERED PROPORTIONS OF CAR SUPPLY. THE

PETITION ATTACKED THE DISALLOWANCE, AND SOUGHT ITS

ELIMINATION, WITHOUT WHICH THE VERDICT AND JUDG-

MENT COULD NOT HAVE BEEN REACHED. THEREFORE THE

PETITION WAS INSUFFICIENT TO SUPPORT THE JUDGMENT.

THIS IS APART FROM THE FACT THAT THE COMMISSION'S

REPORTS, INCLUDING ITS FINDINGS AND ORDER, WERE EX-

HIBITED WITH AND MADE PART OF THE SHIPPER’S PETITION.

Respondent’s petition in the District Court averred

that the ‘‘increased cost of mining and selling the coal

actually produced and sold, aggregated the sum of

$97,735.11’? (R. 5), but complained that, although the

Commission in the first exhibited report found that the

shipper claimed that his excess mining costs were

$9,285.14 and his lost profits $48,451.97, a total of said

$07,739.11, as to the computation of which, it was said,

your petitioners did not question the method or figures

used, the Commission, under the ‘‘rule that a party suf-

fering loss from breach of duty ought to do what a rea-

sonable man would do to mitigate his loss,’’ found that

by reasonable action in accepting the carriers’ ‘‘20-80

offer’? the respondent could have increased his produc-

tion, ‘‘and to this extent his damage was due to his own

action and the defendants cannot reasonably be expected

to compensate him therefor’? (R. 7). There was also an

averment that the Commission found that the tonnage

which respondent could have produced, if he had been

allowed the Western Maryland car supply, was based on

an excessive loading tonnage per car (R. 7). It was

further alleged that the Commission, by the second ex-

hibited report ‘*made revised mathematical computa-

SF BPG to di eC Ue ERAN LHD LIER EAST ON RE" 2 Zn

is 36

tions based upon the said mitigation of loss-setoff and

average loading findings, and arrived at $12,838.31 as

the amount of respondent’s damages and entered a rep-

aration order dated February 28, 1929, directing the car-

riers to pay respondent said $12,838.31, with interest from

April 1, 1923, to wit, $4,685.98, or a total of $17,524.29,”

which was unpaid (R. 7). The petition attacked what it

termed ‘‘the said mitigation of loss-setoff and average

loading findings,’’ not on the ground that they were not

established facts, but as beyond the Commission’s power,

erroneous in law and void; and alleged the pendency of

its bill in equity attacking ‘*the said mitigation of loss-

setoff and average loading findings’? (Brady v. Inter-

state Commerce Com., 43 F. (2d) 847). The respondent

claimed recovery of Lilenans for the $17,524.29, with

interest from May 1, 1929, and such additional sum as,

when added thereto with interest from the same date,

would make a total of said $57,735.11, with interest on

the total from April 1, 1923. The prayer was for judg-

ment for said $57,735.11, with said interest (R. 8, 9).

The verdict was for $63,048.60 (R. 38), and the judg-

ment was for the same amount, with interest from August

7, 1931 (R. 39).

The Cireuit Court of Appeals, regarding the amount

of the reparation order not to limit the recovery, gave no

heed to the inclusion of the $9,238.14 for excessive car

tonnage, because it thought that evidence not before the

Court in the absence of bills of exceptions, might have

warranted the restoration of the amount deducted by the

Commission for excess mining costs. The Court, how-

ever, considered and held improper the so-called ‘‘miti-

gation of loss set-off’? because of failure to accept the car

supply offered by the two carriers (R. 98). But,

after raising sua sponte the question whether the reports

—

were really part of the petition, it considered them (R.

97, 98).

What has been said shows that the question of minimiz-

ation or mitigation of damages appeared on the face of

the petition; that the Commission made the disallow-

ances; that the verdict and judgment could not have

been arrived at without inclusion of at least the greater

part of the damages which could have been avoided by

acceptance of the offered car supply; and that therefore

the petition does not support the judgment, and the judg-

ment is erroneous.

It has been held that ‘‘the coincidence of the amount

as awarded’’ by the Commission ‘‘and the amount ascer-

tained by the use of percentages’’ in incorrect tables,

made it ‘‘almost mathematically certain that the result’’

before the Commission ‘‘could have been reached in no

other way’’ than on the basis of the erroneous tables, and

that the District Court erred against the carrier in re-

fusing a charge correcting the error (Pennsylvania R.

Co. v. Jacoby, 242 U. 8. 89, 99). After reversal and re-

trial this Court again adverted to ‘‘the coincidence of per-

centage and award,’’ and held that ‘‘the conclusion is

inescapable that the Commission in determining the sum

awarded, used percentages which had the basis of plac-

ing the plaintiff on a basis of equality with the favored

companies.’’? But as the judgment was only for the sum

awarded by the Commission with interest, and there was

testimony tending to show damages in at least the amount

of the award, there was no prejudicial error (Pennsyl-

vania R. Co. v. Weber, 257 U.S. 85, 86, 91). The amount

of the verdict and judgment in the instant case, unattain-

able except by inclusion of the amount which the Com-

mission had disallowed as resulting from refusal to ac-

ic %

By:

cept the offered car supply, renders the conclusion in-

escapable that the judgment included this amount.

Further, although the Act, Section 16(2) required the

findings and order of the Commission to be filed and con-

stituted them prima facie evidence of the facts therein

stated, the respondent went further and exhibited the re-

ports and order with, and made them part of, the petition

(R. 6, 7, 8), thereby requiring your petitioners to plead

thereto, which they did. The petition cannot now be dis-

membered by rejection of the reports and order. Both

at common law and in equity a pleading must be taken

most strongly against the party pleading (4 Encyc. Pl. &

Pr., 759, 762; United States v. Linn, 1 How. 104, 110;

Dougherty v. Catlett, 129 Tll. 431; Bowker v. Torrey, 211

Mass. 282; Schuler v. Southern Iron & 8. Co., 77 N. J. Eq.

60; DuPont v. Gardiner, 238 Fed. 755, 758).

The measure of damages in a reparation proceeding

before the Commission and in a court are the same. In

Louisville & N. R. Co. v. Ohio Valley Tie Co., 242 U.S.

288, 290, it was said:

‘*By Section 8 a common carrier violating the com-

mands of the act is made liable to the person injured

thereby ‘for the full amount of damages sustained

in consequence’ of the violation * * *. By Section 9

any person so injured may make complaint to the

Commission or may sue in a court of the United

States to recover the damages for which the carrier is

liable under the act, but must elect in each case which

of the two methods of procedure he will adopt. The

rule of damages in one hardly can be different from

that proper for the other. An award directing the

carrier to pay to the complainant the sum to which

he is entitled is provided for by Section 16”’,

To the same effect are: Pennsylvania R. Co. v. Clarl,

Bros. Coal Min. Co., 238 U. 8. 456, 472; Pennsylvania R.

Co. v. International Coal M. Co., 230 U. S. 184, 204;

George A. Hormel & Co. v. Chicago, M. & St. P. R. Co.,

283 Fed. 915, 918, 919; Keogh v. Chicago € N. W. R. Co., 7

260 U.S. 156. Similarly, in Kansas City Southern R. Co.

v. Wolf, 261 U. S. 1338, and A. J. Phillips Co. v. Grand :

Trunk W. R. Co., 236 U.S. 662, 667, it was held that under

Section 16 the provision limiting the filing of complaints

for recovery of damages with the Commission to two

years applied equally to a suit in court; that ‘‘to have one

period of limitation where the complaint is filed before

the Commission, and the varying periods of limitation of

the various states, where a suit was brought * * *; or to

permit a railroad company to plead the statute of limita-

tions as against some and to waive it as against others,—

would be to prefer some and discriminate against others’’

and that ‘‘the Railroad Company, therefore, was bound

to claim the benefit of the limitation of Section 16 when

sued in the Federal Court.’’

The rule applies, therefore, both before the Commis-

sion and in the court, that it is the duty of a party in-

jured by breach of contract or by tort to avoid, minimize

or mitigate his damages by doing what a reasonable man

would do. (The Baltimore, 8 Wall. 377; Warren v. Stod-

dart, 105 U. S, 224, 229; United States v. United States

F.& G. Co., 236 U.S. 512, 526; Chesapeake & O. R. Co. v.

Kelly, 241 U.S. 485, 489; Huntington Easy Payment Co. v.

Parsons, 62 W. Va. 26, 30, 31; 1 Sutherland, Damages (4

Kd.), Sees. 88-90, 155; 1 Sedgwick, Damages (9 Ed.),

Sees, 201, 202, 214-215.)

The odd conception of the respondent that the rule

diminishing recoverable damages to the extent to which

the complaining party might reasonably have avoided,

minimized or mitigated damages, involves two findings,

(1) the full amount of damages which would have accrued

a " = < peragrcom ” . 2

a —

in the absence of the duty of minimization; and (2) the

amount of avoidance, minimization or mitigation which

would have resulted from reasonable effort, and that

there is a so-called ‘‘loss-setoff’’ (R. 7, 8, 9), is without

foundation. It is merely an attempt to show an initial

finding of loss, increasing the debit side of the reparation

order, so as to increase the limit of recovery in court.

There are never two such separate findings. The finding

or assessment of damages is merely the net amount of

the direct or natural consequences of the breach of con-

tract or tort. <A plaintiff cannot recover unreasonable

enhancement of damages, or damages due to his failure

to exercise reasonable care and diligence to avoid them,

since the damages resulting from his voluntary act or his

neglect to exercise reasonable effort to limit the injury

and prevent damages are attributable to him and not to

the defendant. (Huntington Easy Payment Co. v. Par-

sons, 62 W. Va. 26; 8 R. C. L. 442; 1 Sedgwick, Damages

(9 Ed.), Sees. 201, 202, 205.)

The thought of the Circuit Court of Appeals that ‘‘it is

unthinkable that a party in default should escape liability

for damages by attempting to force the other party to

accept part performance as a condition to any perform-

ance at all’’, is groundless. A minimization or mitiga-

tion, is none the worse, nor the duty to make it less, be-

cause it can be obtained only by acceptance of goods or

services from the party in default.

In Warren v, Stoddart, 105 U. S. 224, 229, it was held

that a book canvasser, who claimed to have been entitled

to the books from the publisher on credit, but who was

refused the credit, should have paid the publisher cash

for the books required to fill his orders, or have allowed

the publisher to fill the orders and divide the profits on

equitable terms, and that the law required him to take

—

PL hap Hire eo e2

that course by which he could secure himself with the

least damage to the publisher. The case is authority that :

acceptance of delivery on different terms so as to mini- ‘

mize damages is required and does not waive a right of

action for breach of the contract.

In Lawrence v. Porter, 63 Fed. 62, 66 (C. C. A. 6),

Judges Lurton and Taft, held that where the =

if, the only dealer able to furnish the particular kind

| of lumber, violated the contract to furnish it on credit,

and thereafter immediately offered to deliver for cash,

the plaintiff was not justified in refusing to accept that

offer. It was said:

‘*The obligation on the buyer to mitigate his loss,

by reason of the seller’s refusal to carry out such a

sale, is not relaxed because the delinquent seller af-

fords the only opportunity for such reduction of

the buyer’s damage. Warren v. Stoddart, 105 U.S

224; Deere v. Lewis, 51 Til. 254.’’

See, also, Deere v. Lewis, 51 Ill. 254; Heilbroner v.

Hancock, 33 Tex. 714; Hodges v. Fries, 34 Fla. 63; Hunt

ington Easy Payment Co. v. Parsons, 62 W. Va. 26.

III.

THERE WAS NO ADMINISTRATIVE QUESTION REQUIRING

THE RESPONDENT TO PROCEED BEFORE THE COMMISSION FORK

REPARATION. THE LIMITATION OF RECOVERY TO THE

AMOUNT OF THE REPARATION ORDER RESULTED FROM HIS

OWN VOLUNTARY ELECTION OF REMEDIES. IF THERE WAS

AN ADMINISTRATIVE QUESTION COMPELLING PROCEDURE BE.

FORE THE COMMISSION, HE PURSUED A RIGHT CREATED BY

STATUTE, COUPLED WITH A STATUTORY REMEDY WHICH WAS

EXCLUSIVE, AND WAS SUBJECT TO THE LIMITATION IMPOSED

BY THE STATUTE. THE COMMISSION DID NOT SUSTAIN HIM

ON, OR EVEN DECIDE, THE ADMINISTRATIVE QUESTION IF

ANY. BY UNSUCCESSFULLY RAISING AN ADMINISTRATIVE

QUESTION HE COULD NOT EVADE THE LIMITATION OF RECOV-

ERY TO THE AMOUNT OF THE REPARATION ORDER.

—_—_—— MEAP DN ese RINNE NEE SPN CUTIE IRE f ae

The Cireuvit Court of Appeals considered that the re-

spondent attacked before the Commission a rule or prac-

tice of the carriers, and not merely the discriminatory

enforcement of a rule; that the Commission was called

upon to prescribe the standard of service which should

have prevailed and that its administrative powers were

invoked; that, therefore, the respondent was compelled

fo proceed before the Commission in order to obtain a

finding of discrimination, which the Court deemed an ad-

ministrative question; that by the time the decision had

been obtained the statutory period for suit, except as

preceded by a reparation order, had expired; and that

this situation reinforced the view that the amount of the

reparation order did not limit the sum recoverable by

suit. (Baltimore & O. R. Co. v. Brady, 61 F. (2d) 242,

246-249; R. 97, 104).

The petition herein, pages 3 to 6, sets forth the sub-

stance of respondent’s petition in the District Court and

the two exhibited Commission reports made part thereof.

We have already argued that the reports were part of

said petition. But if the reports be eliminated, the peti-

tion is left in the state of alleging that the Commission

found that respondent had been unjustly discriminated

against, in that he should have been allowed to divide his

car orders in such divisions of 100 per cent. of his mine

rating as his judgment dictated, and that ears should have

been accordingly furnished, without stating how or why

the Commission reached that conclusion. Under the rule

previously stated, that a pleading must be taken most

strongly against the party pleading, nothing can be pre-

sumed in favor of the petition, nor can it be presumed

that the question presented to the Commission was ad-

ministrative.

F Si adage MMR ie Bil BE AE LRA ad AS JR, Brie Set

Ea RSIS GIT, SOE DOG PLE PEIN EGE EE BEIGE ENE

Likewise, in Pennsylvania R. Co. v. Puritan Coal Min.

Co., 237 U. S. 121, 128, it was said:

‘*Tt will be seen that this section does more than

create a right and designate the court in which it is

to be enforced. It gives the shipper the option to

proceed before the Commission or in the Federal

courts. The express grant of the right of choice be-

tween those two remedies was the exclusion of any

other remedy in a state court; and that the Federal

tribunals have exclusive jurisdiction of a certain

class of cases referred to in section 9 has been recog-

nized in the few decisions dealing with the ques-

tion.”’

See, also, Pennsylvania R. Co. v. International Coal

Co., 230 U.S. 184, 200. Cf. Blumenstock Bros. etc. Agency

v. Curtis Publishing Co., 252 U. 8S. 436, 441; South Cov-

ington etc. R. Co. v. Newport, 259 U.S. 97, 99.

Unless unpleaded facts are presumed in favor of the

petition standing alone, and more strongly, if the ex-

hibited orders are read as part of that petition, under the

accepted test of an administrative or non-administrative

question the matter before the Commission was not

whether the carriers’ rules and regulations were unrea-

sonable or discriminatory, but whether the carriers vio-

lated their own rules and regulations or enforced them in

a discriminatory way.

The rule in ear distribution cases is stated in Illinois

Central R. Co. v. Mulberry Hill Coal Co., 238 U.S. 275,

282, where, summarizing Pennsylvania R. Co. v. Puritan

Coal Min, Co., 237 U. S. 121, 131, 132, it was said that

upon a review of Sections 8, 9 and 22 it had been held:

‘That in actions against railroad companies for

unjust discrimination in interstate commerce where

the rule of distribution itself is attacked as unfair

——

or discriminatory, a question is raised which calls

for the exercise of the authority of the Interstate

Commerce Commission; but if the action is based

upon a violation or discriminatory enforcement of —

the carrier’s own rule for car distribution no admin-

istrative question is involved, and such an action, al-

though brought against an interstate carrier for dam-

ages arising in interstate commerce, may be prose-

cuted either in the state or the Federal courts. And

because in that case the action was not based upon

the ground that the carrier’s rule of car distribution

was unreasonable or discriminatory, but that plain-

tiff was damaged by reason of the carrier’s failure

to furnish it with cars to which it was entitled even

upon the basis of the carrier’s own rule of distribu-

tion, it was held that the state court had jurisdiction

without previous application to the Interstate Com-

merce Commission.’’

See, also, Pennsylvania R. Co. v. Sonman Shaft C. Co.,

242 U.S. 120, 124; Pennsylvania R. Co. v. Clark Bros. Coal

Min. Co., 238 U. S. 456; Pennsylvania R. Co. v. Stineman

Coal Min. Co., 242 U. S. 298; Midland Valley R. Co. v.

Barkley, 276 U. S. 482, 484; Mitchell Coal & C. Co. v.

Pennsylvania R. Co., 230 U. S. 247; Morrisdale Coal Co.

v. Pennsylvania R. Co., 230 U. S. 304.

Mitchell Coal & C. Co. v. Pennsylvania R. Co., 230 U.S.

247, 258, shows that it was ‘‘extremely doubtful whether,

at common law’’, the shipper had a right of action be-

cause of discrimination. And see Interstate Commerce

Com. v. Baltimore & Ohio R. Co., 145 U. 8. 263. But in

the Mitchell Coal & C. Co. Case, at page 258, it was said,

‘*But if any such right existed it was abrogated or for-

bidden by the commerce act, and one was given which,

as a condition of the right to recover, required a finding

by the Commission that the allowance was unreasonable

and operated as unjust discrimination, or as an undue

preference.’’ While it was added that orders finding an

allowance unreasonable and operating as an unjust dis-

crimination or undue preference, so far as administra-

tive, are conclusive, they are quasi judicial and only

prima facie correct in so far as they determined the fact

and amount of the damage,—‘‘as to which, since it in-

volves the payment of money and taking of property, the

carrier is, by Section 16 of the act given a day in court

and the right to a judicial hearing.’’ (Italics ours.) This

decision is plain that a new statutory right was created, .

coupled with an exclusive statutory remedy, which as to :

amount was limited by the reparation order.

See, also, Pennsylvania R. Co. v. Puritan Coal Min. Co.,

237 U. S. 121, 128; Pennsylvania R. Co. v. International

Coal Co., 230 U. S. 184, 200.

But if there was an administrative question compelling

him to go before the Commission for a finding of undue

preference or unjust discrimination and/or an order of

reparation, respondent pursued a new right, created by

the statute, which previded for a special statutory rem-

edy, subject to the limitations and conditions which the

statute prescribed. One of the conditions of the remedy

was the limitation of the recoverable amount by Section

16(2) to the sum awarded by the Commission, with in-

terest.

‘‘Where a statute creates a new right, coupled with a

provision for a special remedy, that remedy and that

alone must be employed.’’ The remedial provision is ex-

elusive. (Barnett v. Muncie National Bank, 98 U.S. 555;

Fourth National Bank v. Francklyn, 120 U. S. 747,

156; D. R. Wilder Mfg. Co. v. Corn Products Ref. Co., 236

U.S. 165, 175.)

ee |

RWS SUS TRALEE ROE WTR RS

In Pennsylvamia R. Co. v. Clark Bros. Coal M. Co., 228

U. S. 456, 472, it was said in answer to the contention of

the Mining Company that it could have sued in the first

instance without going before the Commission:

‘But when, as a result of its own insistence upon

its Federal right under the act, it appeared that the

act had been violated and that the special remedial

provisions of the act were applicable, it was not pos-

sible for the plaintiff to ignore the statute it had thus

called into play, and disregard its provisions for the

purpose of measuring relief by local standards. The

Federal statute governed the plaintiff no less than

the defendant. In the situation in which the plain-

tiff stood after the Commission’s finding, that statute

determined the extent of the damages it was entitled

to recover with respect to interstate sales and ship-

ments, and the plaintiff was not free to seek another

remedy in the state court, and there to secure treble

damages under the state statute with respect to the

same transactions.

‘It is simply to hold that the plaintiff, having de-

manded and obtained the appropriate ruling from the

Commission as to the discrimination which had been

practised, was then entitled to proceed for the re-

covery of damages in accordance with the act, and

not otherwise. The fact that the Commission had

not made its award of damages at the time the action

was brought is immaterial. The proceeding before

the Commission was pending and the plaintiff’s right

and remedy were fixed by the Federal act.’’

See Pennsylvania R. Co. v. Puritan Coal Min. Co., 237

U.S. 121, 131.

Still proceeding on the unjustified theory that respon-

dent’s complaint before the Commission raised an admin-

istrative question, he did not sustain that proposition and

2 the Commission did not decide the case on that basis. It

—eo7VnmX¥> RA ELPA ED ty TE LIS TE ETAT IS PATTI ESE LALIT NOI WS NONE aes

held the question whether or not the Coal Company (and

inferentially whether or not respondent) was entitled to a

joint mine status was negligible, and it was left undecided.

The Commission’s decision really went off on the proposi-

tion that because, in fact, the Coal Company had been al-

lowed to divide its car requisitions in accordance with its

own judgment, based on its own business requirements,

which happened to be Western Maryland, 80 per cent. and

Baltimore & Ohio, 20 per cent., therefore, respondent was

entitled to divide his requisitions in accordance with his

own business requirements as his own judgment inter-

preted them, and that in failing previously to proceed in

that way there had been unjust discrimination against

respondent.

If, therefore, respondent did, by his complaint before

he Commission, raise an administrative question, he was

unsuccessful on that point, because the Commission re-

jected it. In Lambert Run Coal Co. v. Baltimore & O. R.

Co., 258 U.S. 377, 383, it was held:

‘*For, while it is true that a plaintiff by his first

pleading determines what right he will sue on, and

that the defenses, set up either anticipatorily by him

or in due course by the defendant, cannot affect the

jurisdiction when it depends on that right, yet the

plaintiff may not, by alleging a frivolous claim or a

fictitious situation, confer upon a court jurisdiction

which, as determined by the plaintiff’s real cause of

action, it has not. * * * The district court should

therefore have dismissed the bill as soon as it became

apparent that the suit was one to set aside an order

ot the Commission.’’

In Armour & Co. v. Fort Morgan S. S. Co., 270 U.S.

255, 259, it was similarly said:

‘* Jurisdiction in admiralty cannot be effectively ac-

quired by concealing for a time the facts which estab-

lish that it does not “exist.”

It follows that, by unsuccessfully claiming before the

Commission the existence of an administrative question

and emerging with a favorable decision on a non-adminis-

trative ground, respondent could not in that way evade,—

even if success before the Commission on the administra-

tive question would have evaded—, the limitation in court

to the amount of the reparation order.

As will be shown in a subsequent section, it does not ap-

pear that the appeal was decided on the ground that the

question was administrative or that the limit of recovery

was not fixed by Section 16(2).

IV.

THE ISSUES INVOLVED ARE NOT RES ADJUDICATA BY REA.

SON OF BRADY V. INTERSTATE COMMERCE COMMISSION, 43 F.

(2D) 847, AND BRADY V. UNITED STATES, 283 U. S. 804.

Although never pleaded, we anticipate repetition here

of the respondent’s argument below, that it was decided

in Brady v. Interstate Commerce Com., 43 F. (2d) 847,

and in Brady v. United States, 283 U. S. 804, that an ad-

ministrative question was involved, and that the Commis-

sion’s order of reparation did not limit the recovery in

court. That case was dismissed for want of jurisdiction,

and the statements in the opinion of the Circuit Court of

Appeals as to the administrative character of the ques-

tion and the amount of recovery were mere obiter dicta.

The reasons of this Court for the affirmance in Brady v.

United States, 283 U.S. 804, can only be inferred from the

citations. It is thought that a proper interpretation of the

citations shows that the decree of dismissal was affirmed

on the grounds (1) that the Commission’s order minimiz-

ing the recovery was negative as to the amount disal-

lowed, and (2) that even if the question of discrimination

decided by the Commission was an administrative ques-

tion, as claimed by the present respondent, then appel-

—aa— ANG HRN: CARA ETE ST Te PNET RENE REIS

lant, there could be no review of the facts found by the

Commission in respect of the administrative question. j

The memorandum opinion does not show that this Court

regarded an administrative question actually to have been

present or decided by the Commission. The omission of

citation of Meeker v. Lehigh Valley R. Co., 236 U. S. 412,

and the similar cases in this Court, so much relied on by

the statutory District Court, demonstrates that this Court

did not pass upon the question whether Section 16(2)

limited recovery in the District Court to the amount of the

reparation order.

OP REE eS eg ten

The dicta in Brady v. Interstate Commerce Commis-

sion, Supra, cannot control the decree of dismissal.

In Harriman v. Northern Securities Co., 197 U. S. 244,

291, it was said:

‘*Counsel argue, however, that certain expressions

in the opinion of Mr. Justice Harlan so enlarged the

scope of the decree as to give it the effect now at-

tributed to it by complainants.

‘*This suggestion is inconsistent with the settled

rule that general expressions in an opinion, which

are not essential to dispose of a case, are not per-

mitted to control the judgment in subsequent suits.

Cohen v. Virginia, 6 Wheat. 399; Carroll v. Carroll’s

Lessees, 16 How. 279.”’

In United Shoe Machinery Co. v. United States, 258

U.S. 451, 460, it was said:

‘*The determination of the questions now raised

under the Clayton Act was not essential to the former

decision. The defendants in their argument seize

upon isolated passages in the opinion of the court in

the former case, and contend that they are decisive

here. But the effect of the former judgment as an

estoppel is not to be thus determined. Vicksburg v.

Henson, 231 U.S. 259, 269, and cases therein cited.’’

—— ine ea " ert Soe FIRE =]

See, also, Russell v. Place, 94 U. S. 606; Cromwell v.

Sac County, 94 U. S. 351; Southern Pac. R. Co. v. United

States, 168 U. S. 1.

THE RESPONDENT NOT ONLY WAS LIMITED IN RECOVERY

BY THE AMOUNT OF THE COMMISSION'S AWARD, BUT SUF-

FERED NO DISCRIMINATION OR RECOVERABLE DAMAGES.

The petition in the District Court alleged a finding by

the Commission that the Commission had recognized that

the Coal Company had a joint mine status, and that it

accorded to the Coal Company the right to order 100 per

cent. of its car requirements in the proportions which its

own judgment dictated. It also alleged that the Commis-

sion had found that the respondent was entitled to, but

had been refused, 100 per cent. of his car requirements

divided in the proportions which his judgment dictated,

and that the respondent had been unjustly discriminated

against. By the reports made part of the petition, how-

ever, it appeared that the Commission did not decide that

either the Coal Company or the respondent was entitled

to a joint mine status, but did decide that the Coal Com-

pany had been accorded 100 per cent., apportioned on the

basis of Baltimore & Ohio 20 per cent. and Western Mary-

land 80 per cent., which, based on past shipments, was in

accordance with the Coal Company’s requirements, and

that by reason thereof the respondent was entitled to 100

per cent. divided as his judgment dictated, in conformity

with the available supplies on both railroads.

The petition, however, artfully concealed what was dis-

closed by the first exhibited report,—that the Western

Maryland’s trackage rights were occasioned by the fact

that the Coal Company was under contract with the West-

ern Maryland to furnish it with 65 per cent. of its own

fuel, and that the allocation of cars for general com-

—_—

mercial purposes was merely incidental or subsidiary to

the Western Maryland fuel contract. It did not appear

that Brady had any fuel contract with the Western Mary-

land. The Interstate Commerce Act does not prohibit

preference or discrimination, but only undue preference

or unjust discrimination.

The petition, with the exhibited reports, therefore, does

not show that the allocation of 20 per cent. by the Balti-

more & Ohio and 80 per cent. by the Western Maryland

was an undue preference to the Coal Company or an un-

just discrimination against the respondent. On the con-

trary, it is clear from the petition and reports that car

service on the basis of 80 per cent. from the Western

Maryland and 20 per cent. from the Baltimore & Ohio was

relatively as advantageous and valuable to respondent as

to the Coal Company, and that if the respondent had been

permitted to do what he professed to be his desire and

purpose, he would have ordered his whole ear supply from

the Western Maryland, which he alleged to have a better

supply in the aggregate than the Baltimore & Ohio, as a

result of which he would have obtained an advantage over

the Coal Company, which was tied down to an allotment

of 80 per cent. from the Western Maryland and 20 per

cent. from the Baltimore & Ohio; and that the allotment

of equal percentages to respondent did him full justice.

Reading the reports as part of the petition it shows

that respondent received treatment equal to that of the

Coal Company and, therefore, suffered no damages, and

that he was not only properly limited to the amount of

reparation awarded by the reparation order but, in fact,

was entitled to no damages.

That being true, the petition, when read with the ex-

hibited reports, showed that the respondent had no right

RBA PONE ; ete |

of action whatever, and the petition was inconsistent

with and failed to support the judgment.

Upon the grounds stated in the petition and this brief

we respectfully ask that the writ of certiorari be granted.

Respectfully submitted,

GEORGE M. HOFFHEIMER,

CHARLES R. WEBBER,

EUGENE 8. WILLIAMS,

E. A. BOWERS.

WILLIAM C. PURNELL,

Counsel for Petitioners.

LOR ERs NEB PEE RIE STEER LEO TL. SALAH A ERD BORIS BIKE OAT TM

APPENDIX.

RELEVANT PARTS OF IMPORTANT STATUTES. :

Interstate Commerce Act, Sec. 8, USCA, Tit. 49, ia

Ch. 1, See. 8; 24 Stat. 382: '

‘*8. Liability in damages to persons injured by

violation of law.—In case any common carrier sub-

ject to the provisions of this chapter shall do, cause

to be done, or permit to be done any act, matter, or Y

thing in this chapter prohibited or declared to be

unlawful, or shall omit to do any act, matter, or thing

in this chapter required to be done, such common

carrier shall be liable to the person or persons in-

jured thereby for the full amount of damages sus-

tained in consequence of any such violation of the

provisions of this chapter, together with a reason-

able counsel or attorney’s fee, to be fixed by the court

in every case of recovery, which attorney’s fee shall

be taxed and collected as part of the costs in the

case.’’

ot PS FREES SE

Interstate Commerce Act, Sec. 9; USCA, Tit. 49,

Ch. 1, Sec. 9; 24 Stat. 382:

‘9. Remedies of persons damaged; election; wit-

nesses.—Any person or persons claiming to be dam-

aged by any common carrier subject to the provisions

of this chapter may either make complaint to the

commission as hereinafter provided for, or may

bring suit in his or their own behalf for the recovery

of the damages for which such common carrier may

be liable under the provisions of this chapter, in any

district court of the United States of competent jur-

isdiction; but such person or persons shall not have

the right to pursue both of said remedies, and must

in each case elect which one of the two methods of

procedure herein provided for he or they will adopt.

BLAIS. ve big SLD RLLTLIIEL PFET FE oS r pl =

Interstate Commerce Act, Sec. 13; USCA, Tit. 49,

Ch. 1, Sec. 13; 24 Stat. 383; 36 Stat. 550; 41 Stat. 484:

‘13, Complaints to and investigations by commis-

sion.—(1) Complaint to commission of violation of

law by carrier; reparation; investigation.—Any per-

son * * * complaining of anything done or omitted

to be done by any common carrier subject to the pro-

visions of this chapter in contravention of the pro-

visions thereof, may apply to said commission by

petition, which shall briefly state the facts; where-

upon a statement of the complaint thus made shall be

forwarded by the commission to such common ear-

rier, who shall be called upon to satisfy the com-

plaint, or to answer the same in writing, within a

reasonable time, to be specified by the commission,

If such common carrier within the time specified shall

make reparation for the injury alleged to have been

done, the common carrier shall be relieved of liability

to the complainant only for the particular violation

of law thus complained of. If such carrier or carriers

shall not satisfy the complaint within the time speci-

fied, or there shall appear to be any reasonable

ground for investigating said complaint, it shall be

the duty of the commission to investigate the mat-

ters complained of in such manner and by such means

as it shall deem proper.’’

Interstate Commerce Act, Sec. 16; USCA, Tit. 49,

Ch. 1, Sec. 16; 24 Stat. 384; 25 Stat. 859; 34 Stat. 590;

36 Stat. 554, 1167; 38 Stat. 219, 41 Stat. 491, 492; 43 Stat.

633:

“16. Orders of commission and enforcement

thereof; forfeitures—(1) Orders by commission for

payment of damages.—If, after hearing on a com-

plaint made as provided in section 13 of this chapter,

the commission shall determine that any party com-

plainant is entitled to an award of damages under

the provisions of this chapter for a violation thereof,

the commission shall make an order directing the car-

rier to pay to the complainant the sum to which he

is entitled on or before a day named.

GEIR ILE ORI OLIVE IN SAIN EEF A ELSE 5 rf :

x PAST: Re MSN SATION RS A He PMA Nae Saat

costs; attorney’s fee—lIf a carrier does not comply ¢

with an order for the payment of money within the i

time limit in such order, the complainant, or any é

person for whose benefit such order was made, may ‘d

file in the district court of the United States for the 3

district in which he resides or in which is located the :

principal operating office of the carrier, or through e

which the road of the carrier runs, or in any State :

court of general jurisdiction having jurisdiction of the %

parties, a petition setting forth briefly the causes for

which he claims damages, and the order of the com-

mission in the premises. Such suit in the district

court of the United States shall proceed in all re-

spects like other civil suits for damages, except that

on the trial of such suit the findings and order of the

commission shall be prima facie evidence of the facts

therein stated, and except that the petitioner shall

not be liable for costs in the district court nor for

costs at any subsequent stage of the proceedings un-

less they accrue upon his appeal. If the petitioner

shall finally prevail he shall be allowed a reasonable

attorney’s fee, to be taxed and collected as a part of

the costs of the suit.’’

Interstate Commerce Act, Sec. 22; USCA, Tit. 49,

Ch. 1, See. 22; 24 Stat. 387; 25 Stat. 862; 28 Stat. 643;

42 Stat. 827:

«¢* * * and nothing in this chapter contained shall

in any way abridge or alter the remedies now exist-

ing at common law or by statute, but the provisions

of this chapter are in addition to such remedies.”’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.