[288 U.S. 448, 449] Messrs. George M. Hoffheimer, of Clarksburg, W. Va., and Eugene S. Williams, of Baltimore, Md., for petitioners.
Mr. George T. Bell, of Washington, D.C., for respondent.
Mr. Justice BUTLER delivered the opinion of the Court.
This is an action brought by respondent in the federal District Court for Northern West Virginia against petitioners in consequence of their failure to comply with a reparation order of the Interstate Commerce Commission. It directed them to pay to plaintiff $12,838.31 damages found to have been sustained by reason of undue prejudice to which they had subjected him in respect of furnishing cars for the transportation of coal from his mine. He sought judgment for $57,735.11, together with interest, costs, and an attorney's fee. Defendants demurred to the complaint generally and also specifically upon the ground that plaintiff was not entitled to recover more than the award. The demurrers were overrled, and, issue having been joined, there was a trial by jury which resulted in a verdict and judgment in favor of plaintiff for $63,048.60, not including attorney's fee as to which all questions were reserved. The Circuit Court of Appeals affirmed. 61 F.(2d) 242. [288 U.S. 448, 454] There is no bill of exceptions,1 and we are called on to decide whether the facts alleged in the complaint, of which the reports and order of the Commission are a part, are sufficient to sustain the judgment. The substance of plaintiff's claim as thus shown is as follows:
Between October 14, 1922, and April 1, 1923, he operated a coal mine on a branch of the Baltimore & Ohio Railroad over which the Western Maryland had trackage rights. His mine was located between two mines operated by a competitor and served by both defendants. During that period there was a shortage of coal cars.
For the rating of, and the distribution of coal cars among, mines on their respective lines, each of the defendants established and maintained in force certain rules and regulations. These required that during periods of coal-car shortage the cars available for loading should be distributed pro rata among the mines in accordance with their ratings. They also permitted the operator of 'any mine reached by two railroads to order 100 per cent or less of its rating from either of the said railroads, or to divide the orders between the two railroads in any way which the judgment of the operator dictated, provided the combined orders did not exceed 100 per cent of the rating of the mine; and the mine was entitled to receive its pro rata share of the available cars on the basis of such orders and to ship the coal loaded therein via the railroad which furnished the cars.'
The Baltimore & Ohio furnished a smaller percentage of cars ordered than did the Western Maryland. Plaintiff's mine was being served exclusively by the former. Desiring to be served by the latter, he regularly ordered [288 U.S. 448, 455] from it 100 per cent. of his rating, but with a single exception was furnished no cars. He complained to the defendants, and was informed that his competitor was ordering 20 per cent. from the Baltimore & Ohio and 80 per cent. from the Western Maryland, and that such a division of his orders would be acceptable to them. He rejected the offer, claiming the right to order from either or both as from time to time he might see fit. But he was denied the right so given his competitor.
He complained to the Commission that defendants thus subjected him to undue prejudice. The Commission so found. 2 And it held the case open to permit him to file a petition for further hearing as to the amount of damages, if any, sustained by him. 112 I.C.C. 244. And see 102 I.C.C. 19. Plaintiff upon such hearing claimed that the cost of mining the coal that he shipped had been increased $9,283.14 and that his loss of profits was $ 48,451.97, making a total of $57,735.11 Defendants, while denying liability, did not controvert these figures. The commission found that, if plaintiff had accepted defendant's offer, his increased mining costs would have been only $2,225.49 and his loss of profits but $10,612.82, making in all $12,838.31, and that he was entitled to reparation in that amount together with interest. It directed that, within 60 days, defendants pay that sum. 152 I.C.C. 327. They refused to do so.
The complaint attacks the award on the ground that as a matter of law the Commission erred in ruling that in order to lessen his loss plaintiff was bound to accept de- [288 U.S. 448, 456] fendants' offer. It asserts that the reduction of his claim upon that ground was beyond the power of the Commission, and therefore null and void.