Messrs. John A. Garver and William A. Glasgow, Jr., for petitioner.
Messrs. John G. Johnson, Frank H. Platt, George W. Field, and Edgar H. Boles for respondent.
Messrs. Joseph W. Folk and Charles W. Needham for the Interstate Commerce Commission. [236 U.S. 434, 435]
Mr. Justice Van Devanter delivered the opinion of the court:
This is a companion case to that just decided, and involves a claim for reparation similar to the second claim in that case, and arising out of the same rate.
In this instance the shipper was Henry E. Meeker, who had succeeded to the business of Meeker & Company, the shippers in the other case, and the shipments in respect of which reparation is sought were made between April 13, 1908, and April 13, 1910. Otherwise the two claims differ only in amount. A complaint covering this claim was filed with the Interstate Commerce Commission April 13, 1910, before it passed upon the complaint covering the other. In its report of June 8, 1911, upon the earlier complaint, the Commission referred to the later one and said (21 Inters. Com. Rep. 129, 137): 'As the subject-matter of the two complaints is the same, in so far as the reasonableness of the rates is concerned, the disposition of the later case will perhaps be determined by the conclusions reached in this case.' In that report it found that the rate in question was excessive and unreasonable, and what would have been a reasonable rate, and directed a further hearing upon the matter of reparation. Such a hearing was had on both complaints, and, on May 7, 1912, the Commission made a supplemental report, entitled in both cases, in which it referred to its original report and the findings therein, and, after dealing with the reparation sought in the first complaint ( Commission's No. 1180), said of the present claim (23 Inters. Com. Rep. 480, 482):
Thereupon the Commission made and entered the following order:
The railroad company was duly served with a copy of the order, but refused to comply with it, and, on September 3, 1912, after the expiration of the period allowed for compliance, the claimant brought the present action in the district court. The railroad company answered as in the other case. At the trial the plaintiff relied in the main upon the findings and order of the Commission as prima facie evidence of the facts therein stated, and no opposing evidence was presented. The plaintiff had a verdict and judgment for $13,161.78, the amount of damages awarded by the Commission, with interest. The court also allowed an attorney's fee of $ 5,000, to be taxed and collected as part of the costs, one half of the allowance being expressly attributed to services before the Commission and the other half to the services in the action. The case was taken to the circuit court of appeals, where the judgment was reversed, with that in the other case. 211 Fed. 785. This case was then brought here in the same way as the other. 234 U.S. 749 , 58 L. ed. 1576, 34 Sup. Ct. Rep. 674. [236 U.S. 434, 438] Save that the statute of limitations is not relied upon, the questions here presented are almost all identical with those in the other case, and in so far as they are the same, they are sufficiently disposed of by what is there said. There are but two points of difference, and they require only brief mention.
The Commission's report of June 8, 1911, finding the rate in question excessive and unreasonable, and what would have been a reasonable rate, was admitted in evidence over the defendant's objection that it was made in another and separate proceeding; that is, upon the complaint of Meeker & Company, and therefore was not admissible in this case for any purpose. The objection was rightly overruled. Without any doubt it was within the discretion of the Commission to permit Henry E. Meeker to intervene in respect of his individual claim in the proceeding begun by Meeker & Company, or to consolidate his complaint with theirs. This, in effect, is what was done. The supplemental report so shows, and it does not appear that the railroad company objected to that course, or was in any way prejudiced by it. Besides, the reparation order recites that it was made after a full hearing and submission of the issues presented by the complaint and answer relating to this claim, and there was no evidence tending to contradict the recital.
The further objection was made to the admission of the same report that it contained much that was not relevant to the case on trial, but the objection was overruled, and it is fairly inferable from the record that the entire report was placed before the jury. It hardly could be said that the presence of some irrelevant matter rendered the whole report inadmissible, and yet the objection seems to have been made in that view. The objection would have been better founded had it been confined to what was deemed irrelevant. Of course, all that should have gone before the jury was the relevant findings [236 U.S. 434, 439] in the report, and counsel for the plaintiff ought not to have asked more. But we need not fix the responsibility for what occurred, for it is certain that the defendant was not harmed by it. The case made by the evidence rightly admitted was such as, in the absence of any opposing evidence, and there was none, clearly entitled the plaintiff to a verdict for the amount claimed. Every fact essential to a recovery, save the service of the reparation order and the refusal to comply with it, was prima facie established by the findings and order of the Commission, and these could not be rejected by the jury in the absence of any countervailing evidence. Kelly v. Jackson, 6 Pet. 622, 632, 8 L. ed. 523, 526. The service of the order was expressly admitted, and the refusal to comply with it was fully proved and practically conceded. Of course, harmless error constitutes no ground for reversal.
We conclude, therefore, that the judgment of the Circuit Court of Appeals must be reversed, and that of the District Court must be modified by eliminating the allowance of an attorney's fee of $2,500 for services before the Commission, and affirmed as so modified.
It is so ordered.