Penn Anthracite Mining Co. v. Delaware & HR Corp.

• Decision Date: 20 October 1936
• Docket Number: 3684.,No. 3683,3683
• Citation: 16 F. Supp. 732
• Parties: PENN ANTHRACITE MINING CO. v. DELAWARE & H. R. CORPORATION et al. CHRISTIAN FEIGENSPAN v. SAME.
• Court: U.S. District Court — Western District of Pennsylvania

16 F. Supp. 732

PENN ANTHRACITE MINING CO. v. DELAWARE & H. R. CORPORATION et al.

CHRISTIAN FEIGENSPAN v. SAME.

Nos. 3683, 3684.

District Court, M. D. Pennsylvania.

October 20, 1936.

William A. Skinner, of Scranton, Pa., and Edwin A. Lucas, of Drinker, Biddle & Reath, of Philadelphia, Pa., for plaintiffs.

Carleton W. Meyer, of New York City, and Paul Bedford, of Wilkes-Barre, Pa., for defendant Delaware & Hudson Co.

A. H. Elder, of New York City, and O'Malley, Hill, Harris & Harris, of Scranton, Pa., for defendant Central Railroad Co.

WATSON, District Judge.

These two cases are similar in their pleadings, were tried together, and turn upon the same questions.

Plaintiffs instituted proceedings against defendants before the Interstate Commerce Commission, complaining of freight rates maintained by defendants for the transportation of anthracite coal in carloads from Von Storch Colliery, at Green Ridge, in Scranton, Pa., to Newark, N. J., alleging that these rates were, are, and would be, unreasonable, and unduly prejudicial to plaintiffs and preferential to their competitors, in violation of sections 1 and 3 of the Interstate Commerce Act (49 U.S.C.A. §§ 1, 3): They asked that the Commission order the defendants to desist from the violation, establish reasonable and just rates, and make a reparations order awarding damages, and such other order or orders as the Commission considers proper.

Hearing was had before an Examiner, who made a tentative report, in which he found that the rates charged were unreasonable in violation of section 1, and recommended an award of reparations. Exceptions were filed to this report, and, after oral argument before Division 3 of the Interstate Commerce Commission, this body refused to follow the recommendation of the Examiner, found the rates not unreasonable or otherwise unlawful, and dismissed the complaint. Upon reconsideration by the full Commission, Division 3 was reversed, the Commission found the rates assailed unreasonable, and found that rates $2.39 on prepared sizes and $2.27 on smaller sizes to be reasonable. Reparations were awarded, and plaintiffs were instructed to comply with rule 5. Plaintiffs filed tabulations of all shipments in connection with which reparation was due, and in accordance therewith the Commission awarded the Feigenspan Corporation $4,152.08, with interest, and the Penn Anthracite Mining Company $6,979.23, with interest. Defendants refused to pay these awards, and plaintiffs instituted these actions under section 16, paragraph 2 of the Interstate Commerce Act (49 U.S.C.A. § 16, par. 2).

At the trial, plaintiffs introduced the report of Division 3 of the Interstate Commerce Commission dismissing its complaint; the report of the Commission on reconsideration reversing Division 3 and finding the rates unreasonable; the Commission's amendatory order for the payment of damages, and statements of individual shipments for computation of interest; and a stipulation that the reports and orders of the Commission were duly served upon defendants. Plaintiffs then rested. Defendants introduced all the testimony submitted at the hearing before the Commission and an order of the Commission in another proceeding. Defendants then offered expert testimony as to the reasonableness of the rates. This evidence was excluded.

After the evidence was all in, and plaintiffs and defendants had rested, both plaintiffs and defendants made requests for binding instructions. Plaintiffs' request was granted, and ruling on the defendants' request was reserved for disposition at a later date. Plaintiffs also made a request for counsel fees as provided for in section 8 of the Interstate Commerce Act (49 U.S.C.A. § 8). Verdicts were entered for plaintiff in No. 3683, Penn Anthracite Mining Company v. The Delaware & Hudson Railroad Corporation and the Central Railroad Company of New Jersey, jointly and severally, in the sum of $8,118.58; and in favor of plaintiff in No. 3684, Christian Feigenspan, a corporation, against defendants, the Delaware & Hudson Railroad Corporation and the Central Railroad Company of New Jersey, jointly and severally, in the sum of $4,367.56. These sums represented the principal amounts awarded by the Interstate Commerce Commission, plus interest to the date of the verdicts.

Defendants duly filed motions for a new trial and for judgment non obstante veredicto. These motions, together with defendants' request for binding instructions, are now before the court for disposition.

Under the decision in Slocum v. New York Life Insurance Co. (1913) 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas. 1914D, 1029. I cannot consider the motion for judgment, non obstante veredicto as such, but shall dispose of the point raised by that motion in deciding whether defendants' request for binding instructions should have been granted. This I consider to be in conformity with the procedure sanctioned by the Supreme Court in Baltimore & Carolina Line, Inc., v. Redman (1935) 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636.

Defendants' motion for a new trial and defendants' request for binding instructions, the ruling upon which was reserved, raised the following questions: (1) Did the court err in overruling defendants' objections to the admission in evidence of the report and orders of the Interstate Commerce Commission, for the reason that said report and orders do not contain the findings of fact required by section 14 (1) of the Interstate Commerce Act (49 U.S. C.A. § 14 (1), and are therefore void? (2) Did the court err in overruling defendants' objection to the admission of the Commission's report and orders, for the reason that they disclose on their face an error of law in that they recite that certain rates were "unreasonable" and purport to award reparation under section 1, whereas, the report shows that the real grievance was discrimination and the real findings of the Commission were findings of discrimination under section 3 of the Interstate Commerce Act (49 U.S.C.A. § 3)? (3) Did the court err in overruling defendants' motion to strike from the record the Commission's report and orders, which motion was made upon the ground that said report and orders were made by the Interstate Commerce Commission without proper or sufficient evidence? (d) Did the court err in sustaining plaintiffs' objection to the testimony offered by defendants as to the reasonableness of the rates in question? These questions will be discussed in the order in which they are referred to.

Are the report and orders of the Interstate Commerce Commission void for the reason that they do not contain findings of fact as required by section 14 (1) of the Interstate Commerce Act (49 U.S.C.A. § 14 (1)?

Section 14 (1) of the Interstate Commerce Act provides: "Whenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect thereto, which shall state the conclusions of the commission, together with its decision, order, or requirement in the premises; and in case damages are awarded such report shall include the findings of fact on which the award is made."

It should be noted that where, as in the present case, there are two or more reports of the Commission in the same proceedings, and the later reports show affirmatively that they are supplemental to the original report, they should be read together and the facts contained in the early reports should be considered as part of the final report unless expressly repudiated. Meeker v. Lehigh Valley R. Co. (1915) 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644, Ann. Cas.1916B, 691.

The report of the Third Division consists of five pages and the supplemental report by the full Commission consists of three pages of discussion and findings of fact devoted to the questions of the "unreasonableness" and the "unduly prejudicial" nature of the rates charged. In addition, the Commission filed two supplemental reports devoted to the computation of damages after plaintiffs' tabulations were filed.

It will be noted that section 14 (1) above provides that in case the Commission awards damages its "report shall include the findings of fact on which the award is made."

The Supreme Court of the United States in the cases of Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Mills v. Lehigh Valley R. Co., 238 U.S. 473, 35 S.Ct. 888, 890, 59 L.Ed. 1414, and Meeker v. Lehigh Valley R. Co., 236 U.S. 434, 35 S.Ct. 337, 59 L.Ed. 659, interpreted this provision and set forth the facts which must be included in the Commission's report. The Mills Case was very similar to the case at bar. As in the present case, the Commission issued two reports, the first dealing with the reasonableness of the rate for the future, and the second dealing with reparations. This reparation order was the basis of a court proceeding to collect the damages assessed by the Commission. In the Mills Case the Supreme Court, in the opinion, said:

"The grounds of the ruling of the court below are: first, that there were no sufficient findings of fact in the reports of the Commission, as required by the statute; and, second, that the plaintiffs had failed to present any evidence which made out a prima facie case of damage sustained. That is, it is said that if the statements in the first report of the Commission could be regarded as findings of fact within the meaning of the statute so as to make them prima facie evidence of the facts found, they were not sufficient to support the plaintiffs' claim; and that there were no facts found in the second report which entitled the plaintiffs to go to the jury.

"The fundamental question thus presented, with respect to the effect of the Commission's reports and orders, has recently been determined in Meeker & Co. v. Lehigh Valley R. R. Co., 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644 Ann.Cas.1916B, 691, and, in the light of the conclusion there reached, little need...