Norfolk & Western Ry. Co. v. Ft. Dearborn Coal & Export Co.

• Citation: 292 F. 78
• Decision Date: 03 July 1923
• Docket Number: 2104.
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NORFOLK & WESTERN RY. CO. v. FT. DEARBORN COAL & EXPORT CO.

292 F. 78

NORFOLK & WESTERN RY. CO. v. FT. DEARBORN COAL & EXPORT CO.

No. 2104.

United States Court of Appeals, Fourth Circuit.

July 3, 1923

John H Holt, of Huntington, W.Va. (Theodore W. Reath and F. Markoe Rivinus, both of Philadelphia, Pa., Waller R. Staples, of Roanoke, Va., and Holt, Duncan & Holt, of Huntington, Va., on the brief), for plaintiff in error.

George S. Couch, of Charleston, W.Va. (Harold A. Ritz and Brown Jackson & Knight, all of Charleston, W. Va., on the brief) for defendant in error.

Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge.

GRONER District Judge.

This case is now before this court a second time. See 280 F. 264. The action was begun by the Coal Company to recover from the Railway Company the value of 897 tons of coal confiscated by the Railway Company at Bluefield, W. Va., in the months of July and August, 1920, while en route, over the lines of the Railway Company, to Lamberts Point, Hampton Roads, Va. We reversed on the former hearing because of the conclusion of the lower court that the plaintiff was entitled to a verdict for the cost price of the coal to it, without evidence of the market value of the same, and we there held the proper measure of damages, on the record as then before us, to be the value of the credit in the pool to which the coal was consigned.

On the second trial the plaintiff, in addition to proving the price paid by it for the coal, proved its market value, as of the date of the taking, in the pool at Lamberts Point, as well as its market value in the Kanawha coal fields in West Virginia where it was loaded in the cars. The jury returned a verdict in favor of the plaintiff for the sum of $17,366.98, the cost price of the coal, with interest thereon from the date of confiscation, and on this verdict judgment was duly entered.

The assignments of error on behalf of the Railway Company relate, first, to the refusal of the District Court to allow the defendant to read to the jury the deposition of one J.D.A. Morrow, vice president of the National Coal Association; second, to the action of the court in refusing to permit the defendant to read to the jury certain statistical tables relating to coal prices shown in the report of the committee on manufactures of the United States Senate, Sixty-Sixth Congress; and, third, the refusal of the court to grant certain instructions asked for by the defendant, and the granting of certain other instructions asked for by the plaintiff, and certain other specific objections to the charge of the court as given.

We will dispose of these assignments in the order in which they are stated above. Morrow was vice president of the National Coal Association, an organization composed of operators, or producers of bituminous coal, in the states of Pennsylvania Virginia, West Virginia, and Kentucky, with a membership of more than 2,000. The members of the association reported to him the cost of producing bituminous coal and the sales value thereof realized by them on board cars at the mines. From these reports he made up a tabulated statement covering the period from January 1 to October 1, 1920. There was no attempt in this report to segregate the prices obtained for contract coal and those obtained for spot coal, although it is well known in the business, and is amply shown in the evidence, that there may be, and frequently is, and at this particular time undoubtedly was, a marked difference in the prices received by the producer for the one and the other. It was also shown in the evidence that at the time of the confiscation of the coal in question there was in existence an English coal strike, which created, during the two or three months of the summer of 1920, an abnormal demand and price for export coal, and that there was a wide margin between the price for export coal and that for domestic coal; and there was, likewise, no attempt at segregation, in the tables, of the prices in these two markets. In addition to what has already been said, the compilation of reports embraced only 500 operators, out of more than 2,000, and there was no explanation of the failure to include reports from the other operators in preparing the tables. The information, too, upon which the tables were prepared, was wholly hearsay. ...