Clark Bros. Coal Mining Co. v. Pa. R. Co.

• Decision Date: 27 June 1913
• Parties: CLARK BROS. COAL MINING CO. v. PENNSYLVANIA R. CO.
• Court: Pennsylvania Supreme Court

88 A. 754
241 Pa. 515

CLARK BROS. COAL MINING CO.
v.
PENNSYLVANIA R. CO.

Supreme Court of Pennsylvania.

June 27, 1913.

Appeal from Court of Common Pleas, Clearfield County.

Action by the Clark Brothers Coal Mining Company against the Pennsylvania Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts appear in the opinion of the Supreme Court, and in the following opinion of Smith, P. J., sur defendant's motion for a new trial and for judgment non obstante veredicto:

"In this case the plaintiff company, a corporation chartered under the laws of the state of Pennsylvania, sued the defendant company, also a Pennsylvania corporation, to recover compensation for alleged acts of discrimination under the Pennsylvania Act of June 4, 1883, P. L. 72, permitting treble damages to be recovered in such cases. The case was tried at a special term fixed for that purpose in November, 1912, and on the 25th day of November a verdict was returned by a jury finding single damages in the sum of $41,481, and also finding that there was discrimination practiced of such a character that it was entitled to recover treble damages under the act in such case made and provided and therefore entitling it to a verdict in the sum of $124,443.

"The two motions to be considered at this time raise a number of questions. The principal question argued and to be considered in this opinion is that of jurisdiction of this court to entertain the action at all. The proofs offered and the verdict of the jury for the purposes of this consideration may be said to establish the following facts:

"First, That the defendant company, a common carrier, did practice unlawful discrimination against the plaintiff corporation in the matter of furnishing cars to its several mines, Falcons Nos. 2, 3, and 4 in Clearfield county and Falcons Nos. 5 and 6 in Indiana county.

"Second. That for the period sued for, namely, between October, 1905, and April 30, 1907, inclusive (excepting as to four months of 1906 during which a strike prevailed in the coal region), the plaintiff company suffered damages at the hands of the defendant company, assessed by the jury at the sum of $41,481.

"Third. According to the proofs offered, the unlawful discrimination practiced by the defendant company, a common carrier, was that of failure to furnish a fair and equal pro rata distribution of cars to the several mines of the plaintiff company.

"Fourth. That according to the proofs offered and not in dispute, 95 to 98 per cent of the coal sold by the plaintiff company was sold f. o. b. cars at the mines, and the claim as made, so far as it relates to coal unmined and not shipped because of the alleged discrimination, was based on a like percentage or that practically all of the coal so unmined

88 A. 755

and shipped would have been sold f. o. b. cars at the mines.

"Fifth. That according to the proofs offered and not in dispute, the plaintiff company did make complaint before the Interstate Commerce Commission against the defendant corporation, alleging an unfair rule of distribution and alleging actual discrimination against it as to its Falcon mines Nos. 2, 3, and 4 in Clearfield county, in favor of other shippers of bituminous coal in the region, which complaint was begun by a proceeding filed some time in 1907, after the period of action in this suit, and docketed in the proceedings of the Interstate Commerce Commission as to No. 1,111, as appears by defendant's Exhibit No. 3 in the testimony of this case. That said complaint was so proceeded in, as appears by defendant's Exhibit No. 5, that the same was submitted January 30, 1909, and decided March 7, 1910, at which time the said Interstate Commerce Commission filed an order in said case as follows: 'The cases being at issue upon complaints 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 conclusions thereon, which said report is made a part hereof; and it appearing that it is and has been the defendant's rule, regulation, and practice, in distributing coal cars among the various coal operators on its lines for interstate shipments during percentage periods, to deduct the capacity in tons of foreign railway fuel cars, private cars, and system fuel cars, in the record herein referred to as "assigned cars," from the rated capacity in tons of the particular mine receiving such cars and to regard the remainder as the rated capacity of that mine in the distribution of all "unassigned" cars: It is ordered that the said rule, regulation, and practice of the defendant in that behalf unduly discriminates against the complainants and other coal operators similarly situated and is in violation of the third section of the act to regulate commerce. It is further ordered that the defendant be, and it is hereby, notified and required, on or before the 1st day of November, 1910, to cease and desist from said practice and to abstain from maintaining and enforcing its present rules and regulations in that regard, and to cease and desist from any practice and to abstain from maintaining any rule or regulation that does not require it to count all such assigned cars against the regular rated capacity of the particular mine or mines receiving such cars in the same manner and to the same extent and on the same basis as unassigned cars are counted against the rated capacity of the mines receiving them. And it is further ordered that the question of the damages claimed by the complainants in these proceedings in respect of the matters and things in said report found to be discriminatory be deferred pending further argument in the premises.'

"Sixth. That the same matter with respect to the reparation in award of damages was submitted April 20, 1911, and decided March 11, 1912, as appears from defendant's Exhibit No. 4, with the result that as to the said damages due to plaintiff company the following order was made: 'This case coming on to be further heard upon application for reparation, and having been submitted by the parties, and full investigation of the matters and things involved having been made and the commission having, on the date hereof, made and filed a supplemental report containing its findings of fact and conclusions thereon, which said report, together with the report herein on March 7, 1910 (19 Interst. Com. Com'n R. 392), and all the findings and conclusions in said reports, are hereby referred to and made a part hereof: It is ordered that the above-named defendant be, and it is hereby authorized and directed to pay unto complainant, Clark Brothers Coal Mining Company, on or before the 1st day of June, 1912, the sum of $31,127.96, with interest thereon at the rate of 6 per cent. per annum from June 25, 1907, as reparation for defendant's discrimination in distribution of coal cars, which discrimination has been found by this commission to have been unlawful and unjust, as more fully and at large appears in and by said reports of the commission.'

"On the general question of jurisdiction of this court, it is conceded by the learned counsel for the defendant that we are bound by the decision of the Supreme Court of the state of Pennsylvania in the case of Puritan Coal Mining Co. v. Pennsylvania Railroad Co., recently decided, 237 Pa. 420, 85 Atl. 426.

"It is contended, however, on behalf of the defendant, that because of a series of proceedings before the Interstate Commerce Commission, in a number of cases brought by parties before said commission, including the plaintiff company in this case, for the adjustment of certain alleged matters of car distribution and alleged discrimination, and against a number of railroads therein named, and which appear in the testimony in this case as defendant's Exhibits Nos. 3, 4, 5, 6, 7, 8, 9, and 10, this case is differentiated in the facts constituting a defense from the case of the Puritan Coal Mining Company. Not to go into detail with respect to these several orders of the Interstate Commerce Commission, it is sufficient for the purposes of this case, as we believe, to say that none of the said orders of the Interstate Commerce Commission are shown to antedate the period of the action in this case; the earliest being that of the Hocking Valley Railway Company decided July 11, 1907. Generally speaking, it is contended on behalf of the defendant company that the existence of these orders,

88 A. 756

especially that with reference to the Pennsylvania Railroad, decided in 1910, indicates that the Interstate Commerce Commission have occupied the field and thereby ousted the...