[257 U.S. 85, 86] Messrs. Henry Wolf Bikle and Francis I. Gowen, both of Philadelphia, Pa., and Frederic D. McKenney, of Washington, D. C., for plaintiff in error.
Mr. Wm. A. Glasgow, Jr., of Philadelphia, Pa., for defendant in error.
Mr. Justice DAY delivered the opinion of the Court.
This cause has been the subject of much and long continued controversy. This is its third appearance in this court. The previous history of the litigation is set out in 242 U.S. 89 , 37 Sup. Ct. 49. The action is based upon a reparation order made by the Interstate Commerce Commission in favor of Jacoby & Co. A recovery was had in the sum awarded by the Commission, with interest. At the first trial plaintiffs did not introduce the record of the testimony before the Commission. The defendant railroad company introduced testimony tending to show that the Commission in making its award of damages had used a table, attached as Exhibit 10 to the record of the case, showing a discrimination of the railroad company against the plaintiffs in the distribution of coal cars in times of shortage, and produced a witness who testified that the effect of the use of the percentages in that table as the basis of awarding damaes by the Commission was to give plaintiffs the undue preference in the distribution of coal cars which favored shippers had received. That being so, this court held that the recovery of a sum thus arrived at would defeat the purpose of the act to place shippers on a basis of equality. For the refusal of the trial court to give a charge based upon such use of the table the judgment of the Circuit Court of Appeals for the Third Circuit, affirming that of the District Court, was reversed, and the cause remanded for a new trial. The second trial in the District Court resulted in a verdict and judgment for the plaintiffs in the sum awarded by the Commission with interest. Weber v. Pennsylvania R. Co., 263 Fed. 945. That judgment was affirmed [257 U.S. 85, 87] by the Circuit Court of Appeals (269 Fed. 111), and the case is again here.
We need not repeat the discussion concerning distribution of cars in times of shortage which was held to result in undue advantage. See 242 U. S. supra, at pages 90, 91, 37 Sup. Ct. 49; Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 Interst. Com. Com'n, 362, 363, 364.
At the last trial the testimony before the Commission was put in evidence, with some additional testimony tending to show that plaintiffs had been discriminated against because of the special allotment to the Berwind-White Company of 500 cars daily, and the sale to it, and to other companies, of a large number of cars in times of car shortage. There was evidence tending to show that but for these discriminations the plaintiffs would have received a sufficient number of cars to furnish them with all they needed during the periods complained of.
The Commission in the report condemned the practice of giving to the Berwind-White Coal Company 500 cars daily by special allotment, and the selling of the company's own cars during the same period to favored shippers, thereby diminishing its capacity to supply the coal car requirements of other coal companies along its line.
When the Commission came to assess damages, it allowed the plaintiffs $ 21,094.35, with interest from January 28, 1907. The order on which this award was made is set forth in 242 U. S., supra. Upon the new trial, with the additional testimony and the whole record of the Commission introduced in evidence, the judge, after charging the jury that there might be a recovery, if the discriminations alleged and proved resulted in damages in the sum awarded by the Commission, charged:
As there was substantial testimony in the record to support the finding of the Commission in awarding damages in a sum at least equal to the amount assessed by it, the principal question to be decided is: May a plaintiff recover in such circumstances in a sutt based upon a reparation order of the Interstate Commerce Commission when there is testimony fairly tending to show that recovery was justified because of unfair practices in the distribution of coal cars in times of shortage, which practices, as its report shows, were condemned by the Commission, although it may appear that the sum awarded by the Commission was actually based upon an erroneous calculation?
In determining the rule to govern this situation we must bear in mind that the Commission is empowered to act upon questions of unfair practices and discrimination. Pennsylvania R. R. Co. v. Clark Co., 238 U.S. 456 , and the previous cases in this court, cited at page 469, 35 Sup. Ct. 896. While this is true, when an action is brought upon a reparation order of the Commission as it may be under section 16 of the Act to Regulate Commerce (Comp. St. 8584) its findings and order are prima facie evidence of the facts therein stated. Meeker v. Lehigh Valley R. R. Co., 236 U.S. 412 , 35 Sup. Ct. 328, Ann. Cas. 1916B, 691; Second Meeker Case, 236 U.S. 434 , 35 Sup. Ct. 337; Mills v. Lehigh Valley R. R. Co., 238 U.S. 473 , 35 Sup. Ct. 888. These cases have disposed of the question of the right of the defendant to attack the prima facie value of the award, and have dealt with the nature of the award of the Commission in view of the statutory provisions as to its character.
That the Commission used a wrong basis in awarding damages, now that the whole record is before us, admits of no doubt. Indeed, the coincidence in the award made and the use of the percentage table shown in Exhibit No. 10 is difficult to account for except upon the basis pointed [257 U.S. 85, 91] out by the witness introduced by the defendant, whose testimony was made the basis of the request to charge, the refusal of which led to the reversal of the judgment in 242 U. S. supra.
The defendant in error argues that the Commission could not have used this table because it covers a different period of operation as evidenced by the number of days shown than the Commission found to have been the period covered by the operation of the plaintiff's mine. Nevertheless, the coincidence of percentage and award remains, and the conclusion is inescapable that the Commission in determining the sum awarded used percentages which had the effect of placing the plaintiff on a basis of equality with the favored companies. On the other hand, there is testimony tending to show that had the cars been distributed upon a basis of general equality approved by the Commission, and without resort to practices condemned by it, there would have been cars enough to have furnished plaintiffs with a sufficient number to meet their trade and requirements during the period in question. Under the circumstances here shown, when the case is fairly and fully submitted, as it was in the charge of the judge to the jury, giving a correct basis upon which there might be a recovery of damages, and there is testimony tending to show damages in at least the sum awarded by the Commission, there is no prejudicial error because of the erroneous calculation of the Commission which was the basis of its award.
Other questions are argued, but they are disposed of satisfactorily in the opinion of the Circuit Court of Appeals (269 Fed., supra), and in the opinion of the trial judge upon the motion for a new trial (263 Fed., supra).
It follows that the judgment of the Circuit Court of Appeals must be