Langdon v. Pennsylvania R. Co.

• Decision Date: 03 January 1912
• Docket Number: 514,282,280,526.,450,510,518
• Citation: 194 F. 486
• Parties: LANGDON v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

194 F. 486

LANGDON v. PENNSYLVANIA R. CO.

Nos. 280, 282, 450, 510, 514, 518, 526.

United States District Court, E.D. Pennsylvania.

January 3, 1912

Harry Cessna, Graham & Gilfillan, and J. W. M. Newlin, for plaintiffs.

John Hampton Barnes, for defendant.

HOLLAND District Judge.

It appearing from the record that 11 cases which had been instituted in the Circuit Court against the Pennsylvania Railroad Company were of like nature, an order of consolidation was made August 16, 1909, and thereafter the causes thus consolidated were submitted to the jury, and in the seven above named a verdict was rendered in favor of the respective plaintiffs. In the first six cases the defendant moved for judgment non obstante veredicto, and filed no motions for a new trial. In the case of the Carbon Coal &amp Coke Company the defendant made a motion for judgment non obstante veredicto, and for a new trial. In the first five cases the reasons assigned for the motions are the refusal of the defendant's first point that the court has no jurisdiction, and the refusal of the defendant's second point. Under all the evidence the verdict of the jury should be for the defendant. In the case of the executors of Sweet an additional reason is assigned, viz., that there can be no recovery in an action by the executors substituted as plaintiffs. In the Carbon Coal & Coke Company Case the same reasons as in the first five cases are assigned upon the motion for judgment and upon the motion for a new trial numerous reasons are assigned to the alleged errors in the charge of the court to the refusal of defendant's points, and because the damages are excessive.

The question of jurisdiction arises in all the cases, and a motion was made by the defendant during the trial to dismiss them all upon that ground, which motion was dismissed temporarily in an opinion reported in 186 F. 237, wherein the court then said:

'The court declines now to pass upon the question of jurisdiction, and reserves the determination thereof until after the trial of the cases upon the merits.'

The cases having been tried and a verdict rendered for the plaintiffs, the question of jurisdiction must now be determined, and, as the court refused binding instructions in favor of the defendant in all the cases, under the Pennsylvania practice act of April 22, 1905 (P.L. 286), the defendant may move for judgment non obstante veredicto for any reason justified by the record.

On the question of jurisdiction, it is the contention of the defendant that under section 15 of the interstate commerce act, as amended by the act of June 29, 1906, the commission has exclusive primary jurisdiction to pass upon the grievances complained of by the plaintiffs, and that, until they have submitted the question to this tribunal, they are not authorized under section 9 of the same act to institute suits for damages in the Circuit Courts of the United States. The plaintiffs did not submit their grievances to the Interstate Commerce Commission, but instituted suit in the Circuit Court under section 9 for damages which they respectively claim to have suffered by reason of the acts of the defendant prohibited under sections 2 and 3.

The Pennsylvania Railroad is a common carrier engaged in interstate commerce. The plaintiffs are coal miners in the Clearfield region of Pennsylvania, and during the time of the alleged grievances were shipping coal over the Pennsylvania Railroad and its connecting lines from the Clearfield region to South Amboy on the New York Harbor, where the coal was lightered to New York, and there sold or transhipped, and they were also shipping over the defendant's line and connecting lines to points in the New England states. The defendant company had filed schedules of joint rates showing the charges for the transportation of coal from the Clearfield region to South Amboy and Harsimus Pier on the New York Harbor. These shipments will hereinafter be referred to as 'New York Harbor shipments.' The defendant company also filed schedules of joint tariff rates for the shipment of coal from the Clearfield region to numerous points of destination in the New England states. These will hereinafter be referred to as 'all-line shipments.' The injury which the plaintiffs claim they suffered results from the alleged discriminatory practice in favor of certain favored shippers in the shipment of coal from the Clearfield region to these various points of destination.

As to the 'New York Harbor shipments,' it appeared from the evidence that more than six years before these suits were instituted all the shippers of coal from the central part of Pennsylvania to New York Harbor for sale to steamboat traffic and transhipment were required to use South Amboy as the point of destination. This point is about 20 miles south of the center of the harbor at New York, and the shippers of coal were required to lighter their coal from this point to the city. Some years ago it appeared that the Pennsylvania Railroad built a pier at Harsimus Cove, right in the center of the harbor, and 20 miles nearer the market than South Amboy. This pier was then leased, on a short term, to Berwind White Coal Company, which paid the cost of its erection at that time, and has had the exclusive use of this pier since its construction. Thereafter the plaintiffs were compelled in the shipment of their coal to New York Harbor to use South Amboy, and lighter it to the city for sale or transhipment, and the Berwind White Coal Company during all of this time has had the exclusive use of Harsimus Pier in the shipment of its coal from the Clearfield region to New York Harbor. The evidence showed that the Berwind White Coal Company received a certain allowance for taking the cars from the Pennsylvania siding into the pier, and unloading them, and returning the cars to the same point. This allowance amounted at times to from 7 to 15 cents per ton. It was also shown that the Berwind White Coal Company in selling their coal to transatlantic steamships could load directly from the pier, and the cost of lighterage across the harbor for transhipment was about 1 to 1 1/2 cents a ton. The plaintiffs, who were excluded from Harsimus Pier and shipped to South Amboy, were compelled to lighter their coal by water a distance of 20 miles for sale or transhipment. There was evidence to show that the additional cost to the plaintiffs in shipping through South Amboy was as much as 18 cents a ton in excess of what it cost Berwind White Coal Company to ship through the Harsimus Pier, and, in addition, the latter company was paid 7 to 15 cents per ton for unloading cars, and had the advantage of location. At the trial the measure of damages claimed by the plaintiffs for shipments to New York Harbor through South Amboy was the amount they alleged they were required to pay in excess of what it cost Berwind White Coal Company, the favorite competitor, to reach the same point with its coal, taking into consideration the allowance to the latter.

And as to the 'all-line shipments,' it is claimed by the plaintiffs they were injured, in that the defendant company paid the Altoona Coal Company and the Glen White Company certain allowances for carrying the coal shipped by each over a small lateral railway which each of these companies owned at the initial point in the Clearfield region; that is to say, the Altoona Coal Company was the owner of a short lateral railway, about six miles in length, branching off at Kittanning, and leading through a mountain pass to the mines. This company received an allowance varying from 10 to 13 cents per ton on the coal they delivered to the defendant's main line at Kittanning over their lateral railway. The Glen White Company was the owner of a short lateral railway, two miles long, branching off at the same point. This company received from the defendant an allowance varying from 10 to 13 cents a ton for delivering its coal to the main line of the defendant company at Kittanning. There were two other coal mining companies in the Clearfield region, to wit, the Mitchell Coal Company and the Pittsburgh, Johnstown, Ebensburg & Eastern Company, with a lateral road 30 miles long, neither of which companies received any allowance for transporting coal over their lateral road, and the jury was informed that the measure of the plaintiffs' damages for 'all-line shipments' was the excess on payments the plaintiffs made for the transporting of their property as compared with what the Glen White and Altoona Companies were required to pay, taking into consideration the allowance made of from 10 to 13 cents to these companies. Evidence was offered to show these were secret allowances, and that the plaintiffs had no intimation of the payments being made.

The contention of the defendant is that, notwithstanding the finding of the jury, these allowances made to the favorite shippers and the exclusive use of Harsimus Pier to the Berwind White Company are practices under section 15 of the commerce act, as amended by the act of 1906, which must primarily be investigated by the commission. Under this section, the commission has primary jurisdiction (1) where it is alleged that the rates or charges are unjust or unreasonable; (2) where it is alleged that any regulations or practices affecting such rates are unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial; (3) where it is claimed that any regulations or practices affecting rates are otherwise in violation of any provisions of the act. Under this section the commission is required to investigate (1) rates or charges; (2) regulations or practices, for the purpose of ascertaining how these existing rates or charges, regulations, or practices affect shippers when the matter...