283 F. 915 | 8th Cir. | 1922
Lead Opinion
This action, tried without a jury, was brought by plaintiff in error, a corporation, on December 23, 1918, to recover damages alleged to have been sustained by it from May 13, 1915, to May 1, 1917, which, as it charges, resulted from certain methods and practices as to freight rates exacted of and paid by it to defendants on shipments of fresh and cured meats from its packing plant at Austin, Minn., to points east of the Indiana-Illinois line, and which practices, rates and charges were found by the Interstate Commerce Commission at a regular hearing to be discriminatory, unduly prejudicial to plaintiff and unduly preferential to its competitor at Mason City, Iowa. Plaintiff’s petition on which the hearing was had and the administrative finding made was filed with the commission on June 23, 1917. The petition invoked action as to the rates for a period from May 13, 1915, to May 1, 1917, only. It did not submit to the commission the question of reparation for damages, if any, that it had suffered on account of rates about which it made complaint. The findings and conclusion were reported on April 24, 1918 (49 Interst. Com. Com’n R. 639). However, the pleadings in this cause and the findings of fact made by the district judge at the trial show that the plaintiff filed its petition with the commission in August, 1914, against these same defendants, in which it made complaint of the same subject mat”
“There is no basis for an award of reparation shown on this record, and none will be awarded.”
The procedure was taken, of course, pursuant to the Act of Feb. 4, 1887 (24 Stat. 379), as amended by subsequent Acts. Comp. Stats. § 8563 et seq.
The first petition submitted to the commission the question and issue of reparation thus:
“That said defendants and each of them be commanded to pay unto complainant reparation for the unlawful charges hereinbefore described, together with reparation for the unlawful charges that defendants, or any of them, may hereafter exact and receive from complainant; and that such other and further order, or orders, be made as the commission may consider proper in the premises and complainant’s cause may appear to require.”
The commission’s report on the second petition sets out the action which it took on the first, including its findings that there was no basis for an award of reparation. It is then said:
“We are here asked, upon another complaint, to pass upon the propriety of these same rates for the period from May 13, 1915, the date of submission of the other case, to May 1, 1917, the effective date of the order in that case, in order that the complainant, as it states in correspondence relating to the complaint, ‘may secure such an administrative or quasi-judicial finding as will enable us to sue in a court for reparation.’ ”
It is then found that “the circumstances and conditions of transportation from Austin and Mason City to the points involved during the period here in question were substantially similar, relatively, to those affecting the transportation between the same points during the period immediately preceding the date, of submission of the other case, covered by the finding in that case',” that the rates were discriminatory, as in the prior report; and concludes thus:
“This finding does not imply that our finding made in the prior case was not effective until May 1, 1917, the effective date of the order therein; but is in the alternative, whether the finding in the prior case spoke as of the date of the adoption of the report or of the effective date of the order.”
The plaintiff had the option under the ninth section of the Act (Comp. St. § 8573) to seek and obtain on its first petition, only an administrative order as to the propriety of the rates which it was then being charged, and if the commission should find in its favor on that subject plaintiff then would have had the right to bring an action in court for its damages. It was not required that it seek reparation from the commission. Railroad Co. v. Coal Co., 238 U. S. 456, 35 Sup. Ct. 896, 59 L. Ed. 1406; Railroad Co. v. Tie Co., 242 U. S. 288, 291, 37 Sup. Ct. 120, 61 L. Ed. 305. It also had the right and option under that section to ask in that petition both for an administrative finding by the commission that the rates were in contravention of the provisions of the Act to regulate commerce, and also for a finding and order by the commission on the subject of reparation. It was required of plaintiff that it elect which of the two courses it would adopt and pursue. The ninth and sixteenth sections of the Act (Comp. St. §§ 8573, 8584) control the procedure thus:
Ninth. “Any person or persons claiming to be damaged by any common. carrier subject to the provisions of this act may either make complaint to the commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this Act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.”
Sixteenth. “If, after hearing on a complaint made as provided in Section 13 of this Act (permitting filing of petition), the Commission shall determine that any party complainant is entitled to an award of damages under the provisions of this Act for a violation thereof, the Commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day «named.”
Obviously, the plaintiff elected in its petition of August, 1914, to adopt the first method given by the ninth and sixteenth sections. It complained to the commission that it had been damaged by the carrier and asked for reparation. Counsel concede that there was an election to have the commission pass on its claim for damages, but they say the first petition was finally submitted on May 13, 1915, no testimony on the matter of reparation was thereafter taken, and therefore the election it made is limited to damages that accrued prior to May 13, 1915. If the power of the commission over the subject of reparation had ceased on May 13, so that it could not have heard further testimony and given further consideration to that question after that date, there would be great force in the contention. But we understand it to be the uniform practice on petitions of this kind, in cases in which it appears that the shipper is entitled to reparation, to take further testimony, if necessary, up to the time of removal of the prejudicial rates, and thus settle in one finding the amount which, in the judgment of the commission, should be paid to the shipper as reparation in the one controversy. That appears to have been the course pursued and approved in Meeker v. R. R. Co., 236 U. S. 412, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691, and in R. R. Co. v. Coal Co., 238 U. S. 456, 35 Sup. Ct. 896, 59
This action, as already said, was begun December 23, 1918, and the defendants, relying upon what is said in Phillips Co. v. Grand Trunk Ry., 236 U. S. 662, 35 Sup. Ct. 444, 59 L. Ed. 774, construing the sixteenth section of the Act, contend that even if they were liable recovery could not be had on transactions which were closed prior to
We are of opinion that both questions were rightly decided, and the judgment is
Affirmed.
Concurrence Opinion
We concur in the result for the reason that the trial court found the facts upon a stipulation of the parties and the evidence of O. W. Berg, a witness for the plaintiff, which occupies 20 printed pages of the record. At the close of the findings of fact and conclusions of law made by the court, the following language appears:
“An exception will be allowed each of the parties to each finding and conclusion or part thereof not proposed by such party.
“An exception will also be allowed to each of the parties to the refusal or failure of the court to adopt any finding or conclusion proposed by such party.
“Wilbur F. Booth, Judge.”
The first clause amounts to nothing as a mere exception presents no ruling of the court for review, and if it did a finding of fact is not subject to review on writ of error. Rev. Stat. § 1011 (Comp. St. § 1672); Atchison, Topeka & Santa Fé Ry. v. U. S. (C. C. A.) 270 Fed. 1.
The second clause amounts to nothing for the reason stated in connection with the first clause, and for the further reason that the record does not show that either party proposed findings of fact or conclusions of law. The sufficiency of the evidence is therefore not before us, and there is no assignment of error that the facts found do not support the judgment. See sections 649, 700, of Rev. Stat. (Comp. St. §§ 1587, 1668).