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

• Decision Date: 05 March 1917
• Docket Number: 4754.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. GEORGE A. HORMEL & CO.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F. 381

CHICAGO, M. & ST. P. RY. CO. v. GEORGE A. HORMEL & CO.

No. 4754.

United States Court of Appeals, Eighth Circuit.

March 5, 1917

George A. Kelly, of Chicago, Ill. (O. W. Dynes and Winston, Payne Strawn & Shaw, all of Chicago, Ill., on the brief), for plaintiff in error.

J. N Nicholsen, of Austin, Minn., for defendant in error.

Before CARLAND, Circuit Judge, and RINER and MUNGER, District Judges.

MUNGER District Judge.

George A. Hormel & Co., hereafter referred to as 'plaintiff,' brought suit against the Chicago Milwaukee & St. Paul Railway Company, hereafter referred to as 'defendant,' and recovered a judgment enforcing an award of reparation made by the Interstate Commerce Commission in favor of the plaintiff. It appears from the pleadings that plaintiffs were packers of meat, having a packing house at Austin, Minn. On November 1, 1911, the defendant had put in force a new and higher schedule of rates affecting plaintiff's shipments. Thereafter plaintiff filed its complaint before the commission, a hearing was had and on February 3, 1913, the commission filed a report in which it found the rates complained of were unreasonable and discriminatory as to plaintiff and that plaintiff was entitled to reparation. On the same day it made an order requiring the defendant to desist from charging the old rates and to establish new rates not exceeding the rates fixed in the order. Geo. A. Hormel & Co. v. C., M. & St. P. Ry. Co., 26 Interest. Com. Com'n, 112. This order began with a recital which reads as follows:

'This case being at issue upon complaint and answers on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the commission having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof.' The plaintiff requested and obtained a rehearing before the commission. As a result of the rehearing, the commission on April 6, 1914, filed a second report finding that cause had been shown for a modification of its former report, and that a further reduction of the rate should be made. The plaintiff was held to be entitled to an award of reparation, and the case was held open for further proceedings relating to the award. An order was made on the same day requiring the defendant to desist from charging the rates it was then charging and to establish new rates not exceeding the lesser rates fixed in its second order. Geo. A. Hormel & Co. v. C., M. & St. P. Ry. Co., 30 Interest. Com. Com'n, 98. On April 21, 1915, the commission made its final award of reparation, reciting the fact that its prior reports of February 3, 1913, and of April 6, 1914, contained its finding of fact and conclusions thereon, and also the fact that the parties had filed agreed statements respecting the movements of the shipments involved and of the amount of reparation due under the commission's findings, and the award was of this amount. When the case came on for hearing, a jury was waived by written stipulation and trial was had to the court. The court made a general finding of the amount due plaintiff but made a special finding of the amount allowed to plaintiff as attorney's fee.

Some of the assignments of error attack the judgment on the theory that it is not based on the evidence. There was no request made to the trial court for a special finding of the facts, for a ruling upon the sufficiency of the evidence, nor for any declaration of law. The effect of section 700, U.S. Rev. Stats. (section 1668, U.S. Comp. Stats. 1913), in limiting the right of review of cases tried to the court, when a jury has been waived, has often been stated. Where the finding of facts is general, the court's conclusion is final on all questions of fact to the same extent as the verdict of a jury. In the absence of a request for declarations of law, and when the court has made none, there can be no error assigned because of the holdings of the court on questions of law. There may be a review of the sufficiency of the petition and of rulings upon the admission and exclusion of evidence, if proper exceptions are taken. The insufficiency of the evidence to support the judgment must be presented to the trial court. Mason v. United States, 219 F. 547, 135 C.C.A. 315, and cases cited; Mound Valley V.B. Co. v. Mound Valley N.G. & O. Co., 205 F. 147, 123 C.C.A. 478; Tiernan v. Chicago Life Ins. Co., 214 F. 238, 131 C.C.A. 284; Bunday v. Huntington, 224 F. 847, 140 C.C.A. 415; Wear v. Imperial Window Glass Co., 224 F. 60, 139 C.C.A. 622; Felker v. First Nat. Bank, 196 F. 200, 116 C.C.A. 32; Keeley v. Ophir Hill Consol. Mining Co., 169 F. 598, 95 C.C.A. 96; Hayden v. Ogden Savings Bank, 158 F. 90, 85 C.C.A. 558; Streeter v. Sanitary Dist. of Chicago, 133 F. 124, 66 C.C.A. 190; York v. Washburn, 129 F. 564, 64 C.C.A. 132; Kentucky Life & Acc. Ins. Co. v. Hamilton, 63 F. 93, 11 C.C.A. 42.

The only assignment of error relating to the reception of evidence complains of the admission in evidence of the report and order of the commission dated February 3, 1913. The ground of objection was that the order had been vacated by a subsequent order. There was no error in this ruling, because the same report and order had been pleaded and set forth as exhibits to plaintiff's petition, and had been admitted by the answer. The defendant contends that this order had been vacated by the commission because of the recital in the order which accompanied it:

'The commission having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which report is hereby referred to and made a part hereof.'

The defendant says that the effect of this latter clause was to so...