New York, N.H. & H.R. Co. v. Ballou & Wright

• Decision Date: 06 June 1917
• Docket Number: 2853.
• Citation: 242 F. 862
• Parties: NEW YORK, N.H. & H.R. CO. et al. v. BALLOU & WRIGHT.
• Court: U.S. Court of Appeals — Ninth Circuit

242 F. 862

NEW YORK, N.H. & H.R. CO. et al. v. BALLOU & WRIGHT.

No. 2853.

United States Court of Appeals, Ninth Circuit.

June 6, 1917

H. A Scandrett, of Chicago, Ill., and W. W. Cotton, Charles E Cochran, and Arthur C. Spencer, all of Portland, Or., for plaintiffs in error.

Will H Bard, of Portland, Or., and James E. Fenton, of San Francisco, Cal., for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

1. This is an action brought by the petitioner, a corporation, under section 16 of the act to regulate commerce, approved February 4, 1887 (24 Stat. 379), as amended by Act March 2, 1889, c 382, Sec. 5, 25 Stat. 859, Act June 29, 1906, c. 3591, Sec. 5, 34 Stat. 590, and Act June 18, 1910, c. 309, Sec. 13, 36 Stat. 554 (Comp. St. 1916, Sec. 8584), to recover from the respondents, as common carriers engaged in interstate commerce, damages awarded to the petitioner by the Interstate Commerce Commission on account of unjust and unreasonable rates charged and collected from the petitioner for the transportation of certain specified quantities of motorcycles in carload lots from Armory, Mass., to Portland, Or.

It is alleged by the petitioner, in substance, that upon a hearing before the Interstate Commerce Commission it was found that the commodity rate charged and collected by the respondents from the petitioner for services rendered in the transportation of certain shipments of motorcycles was unjust, unreasonable, and excessive to the extent that it exceeded the first-class rate in effect at the time the shipments were made, and that the petitioner was damaged to the extent of the difference between the commodity rate charged and collected and the first-class rate in effect at that time, and that the petitioner was entitled to an award of reparation for such difference; that thereafter the Interstate Commerce Commission made an award to the petitioner in reparation of such damages in several specified sums, amounting in the aggregate to $828.13, with interest from January 1, 1913, and apportioned the same between the respondents over whose lines the said respective shipments were carried, and directed that the said several sums, with interest, as apportioned, be paid to the petitioner by the respondents on or before the 1st day of October, 1914; that, the respondents having refused to pay the award, petitioner brought this suit to recover the damages sustained by it in consequence of the violation of the provisions of the act to regulate commerce, together with interest and reasonable attorney's fees, costs, and disbursements.

The petitioner set forth in its complaint in detail the amounts of the various overcharges, alleging, in substance, that the commodity rate of $4 per 100 pounds charged and collected by the respondents was unjust, unreasonable, and excessive, and that the first-class rate in effect at the time the shipments were made should have been applied to motorcycles in carload lots, and that by reason of the said unjust, unreasonable, and excessive rate charged and collected for the service rendered the petitioner had suffered and sustained damages to the extent of the difference between the commodity rate charged and collected and the reasonable amount which petitioner would have paid on carload lots, based upon the first-class rate in effect at that time.

The respondents answered the complaint, and, in substance, denied that the commodity rate charged and collected was unjust, unreasonable, or excessive, and denied that the first-class rate in effect at the time the shipments were made was just and reasonable, or that the same should have been applied to motorcycles in carload lots; and, for a further and separate answer and defense, the respondents alleged, in an amended answer, in substance, that the petitioner in the management of its business sold each motorcycle to the trade at a retail price of $15 in excess of the factory list price, which said sum was added to cover and did cover the difference in freight charges sought to be recovered as damages by the petitioner.

The petitioner interposed a demurrer to this further and separate answer and defense; but the court suspended a ruling on this demurrer until after the testimony had been taken. Thereupon the petitioner filed a reply, denying the matters and things contained in the further and separate answer; and, a jury being waived, the proceedings before the Interstate Commerce Commission, including the report of the Commission and the award authorizing the reparation, were offered in evidence, and the petitioner offered evidence as to what should be a reasonable attorney's fee in the event it should prevail in the action. It was thereupon stipulated between the parties that the only question for the determination of the court was the reasonableness or unreasonableness of the rate charged and collected, and the measure of damages, if any, sustained by the petitioner. The court sustained the demurrer of the petitioner to the further and separate answer and defense of the respondents, and made findings of fact and conclusions of law, and entered a judgment in favor of the petitioner and against the respondents in accordance with the order of reparation of the Interstate Commerce Commission, together with attorney's fees and costs.

The law provides that:

'All charges made for any service rendered or to be rendered in the transportation of passengers or property * * * shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful. ' Section 1, Act Feb. 4, 1887 (24 Stat. 379).

It is also provided:

'That in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done any act, matter, or thing in this act prohibited or declared to be unlawful, * * * such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable 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. ' Section 8, Act Feb. 4, 1887 (24 Stat. 382).

The Interstate Commerce Commission has found as a fact, on testimony before it, that the rate charged the petitioner was unreasonable, and that the petitioner had been damaged thereby. It also found the amount of reparation due thereon, on the basis of the Commission's decision, and the Commission thereupon ordered and required that, as reparation on account of the unreasonable rate charged, the respondents should pay to the petitioner the specific sums amounting in the aggregate to $828.13. The report of the Commission containing these findings of fact and orders is prima facie evidence of the matters therein stated. Section 16, Act Feb. 4, 1887 (24 Stat. 384).

The court below also found as a fact that the petitioner had been damaged in an amount equal to the difference between the amounts charged and collected on the several shipments made by the petitioner and the amounts it would have paid at the first-class rate contemporaneously in effect, amounting in the aggregate to $828.13. In the case of Southern Pacific Co. v. Goldfield Consolidated Milling & Transportation Co., 220 F. 14, 18, 135 C.C.A. 590, 594, this court had before it this identical question, and Judge Ross, rendering the opinion of the court, said:

'The fact that the defendant in error was damaged in the particulars specified, as well as the extent of such damage, was therefore expressly found by the Commission in the present case; and that finding of facts, like all other facts found by it, is, by the Interstate Commerce Act of February 4, 1887, as amended by the acts of March 2, 1889, and June 29, 1906 (24 Stat.c. 104, 25 Stat.c. 382, and 34 Stat.c. 3591 (Comp. St. 1913, Sec. 8584)), expressly made prima facie evidence. Being introduced by the plaintiff on the trial in the court below, and there being nothing in any of the other evidence given on the trial in

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