US SUPREME COURT DECISIONS

Section 8 of the Act to Regulate Commerce gives the shipper a right of action against the carrier for damages occasioned by his doing an act prohibited by the statute, and § 9 gives the shipper the option to proceed either before the Interstate Commerce Commission or in the federal courts.

Construing §§ 8 and 22, however, in connection with the statute as a whole, the Act to Regulate Commerce is both declaratory and creative, and while shippers are given new rights, existing causes of action are preserved and the jurisdiction of state courts is not superseded in cases in which the decision does not involve the determination of matters calling for the exercise of administrative power and discretion of the Commission or relate to subjects over which exclusive jurisdiction is given to the federal courts.

While the federal courts may have exclusive jurisdiction of a suit brought to declare that a rule of practice promulgated by the carrier is unfair, a suit for damages occasioned by the violation or discriminatory enforcement of the carrier's rule, fair on its face and not attacked as unfair, does not involve administrative questions, but only those of fact, and even though for damages arising in interstate commerce, a suit is not within the exclusive jurisdiction of the federal courts, but may be prosecuted either in those courts or in the state courts.

The state courts have jurisdiction of an action of the shipper against the carrier to furnish a reasonable number of cars, whether the action be treated as one for breach of the common law duty to furnish the cars or for unjust discrimination in allotting cars to another shipper in violation of the carrier's own rule to furnish all the shippers on an equal pro rata basis. The jurisdiction of the state court is not defeated because the breach of common law duty is also an unjust discrimination.

Motive for breach of common law duty of the carrier to furnish a reasonable number of cars is immaterial, and what was a proper supply under the circumstances is a matter of fact. chanrobles.com-red

Page 237 U. S. 122

While ordinarily a shipper on reasonable demand is entitled to all the cars it can promptly load, that right is not absolute, and a carrier is not liable for failure to supply cars as the result of sudden and great demands which it had no reason to apprehend, but in a case of car shortage, it is bound to treat shippers fairly, if not identically.

Where there is a shortage and the shipper complains that the carrier's rule of distribution is unfair, the question is for the Commission, Morrisdale Coal Co. v. Penna. R. Co., 230 U. S. 312, but where the shipper does not attack the rule itself but complains that the carrier refused to furnish the number of cars it was entitled to under the rule, while other shippers were furnished more cars than they were entitled to under the same rule, a preliminary finding of the Commission is unnecessary, and even if the shipments were interstate, the state and federal courts have jurisdiction.

An exception is properly disallowed by the state appellate court, and will be disregarded by this Court, if no relevant testimony was offered to support it and no point thereon raised in the trial court.

237 Pa.St. 420 affirmed.

In March, 1908, the Puritan Coal Mining Company brought suit in the Court of Common Pleas of Clearfield County, Pennsylvania, against the Pennsylvania Railroad Company for damages caused by the latter's failure to furnish cars needed for the transportation of coal. On November 21, 1908, the plaintiff filed a "Statement of Claim" in which it was alleged that the defendant was a common carrier of freight between points within the State of Pennsylvania, and as such bound to furnish shippers with adequate facilities for the transportation of coal, but that the carrier did not, as required by law, furnish the plaintiff with sufficient cars to enable it to transport coal mined by it. By reason of such failure to perform its duty and legal obligation, the defendant caused the plaintiff damage to the extent of $260,777.

Other paragraphs in the statement alleged that the carrier established and published the capacity of all coal mines in the region reached by its railway; that, as a common carrier, it was bound to furnish cars upon the chanrobles.com-red

Page 237 U. S. 123

basis of equality in proportion to the rated capacity of plaintiff's mines. But, disregarding its duty under the statute of the state, the defendant did, unreasonably as well as unlawfully, refuse to furnish the plaintiff with its pro rata share of coal cars held for daily distribution, and did subject the plaintiff to unreasonable disadvantage in that it favored and did unduly and unreasonably discriminate in favor of the Berwind-White Coal Company by giving to the latter 500 cars before distributing any to the plaintiff. By reason of the undue and unjust discrimination against the plaintiff and the undue preference in favor of the Berwind-White Company, the plaintiff was not furnished with the cars to which it was entitled, and thereby lost the profit of $260,777 which it could and would have made on coal which it could and would have shipped had it received its due proportion of cars.

On November 23, 1908, and again in April, 1911, other statements were filed which repeated and amplified the charge of unjust discrimination in the distribution of cars whereby the plaintiff received less and the Berwind-White Company more than was proper under the rule of allotment established by the carrier.

The defendant moved to dismiss the case because the state court was without jurisdiction. The court held that the motion was bad as a demurrer, bad as a plea in abatement, and dismissed it as having been prematurely made. The defendant filed no other defense except a plea of the statute of limitations as to certain items of damage claimed in an amendment to the original statement.

By consent, the case was heard by the judge without a jury. He made a report of the facts from which it appears that ordinarily, the carrier was able to furnish shippers with cars on demand, but, in 1902, there was a strike in the anthracite region which cut off the usual supply of anthracite coal to eastern cities and compelled them to use bituminous coal mined along the lines of the Pennsylvania chanrobles.com-red

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Railway. The new demand for soft coal was so great that the railroad company was not able to supply the full number of cars called for by the mining companies on its line. Its established rule in such cases was that cars should be allotted to the several coal districts in proportion to their output, the cars thus allotted to the districts being then distributed to the mining companies therein in proportion to their capacity. During the anthracite coal strike, however, the carrier violated this rule and made excessive allotments to the "scalp level region," in which the Berwind mines were located, and made too small an allotment to the "mountain region," in which the Puritan mines were situated.

There was evidence that the Puritan Company had orders for coal at a price which would have netted it a large profit. The coal so ordered was to be delivered "free on board" the cars at the Puritan mines, the purchaser and consignee paying the freight to points of destination within and without the state. There was evidence that the Puritan Company was ready, willing, and able to make such sales and deliveries, and constantly demanded cars in order to enable it to fill these orders. Sometimes the carrier for days would fail to furnish cars, with the result that the company's mining operations were seriously interrupted. Sometimes the Puritan got cars, but not the full number to which it was entitled on the basis of distribution according to mine capacity, although the Berwind-White Company during the same period received more than its proportion.

The railroad company's elaborate and detailed distribution sheets were introduced in evidence. They showed the number of cars to be allotted to mines on the basis of capacity for each day of the period during which the car shortage existed. From these sheets and the other evidence in the case, it appeared that the Berwind Company received many more cars than its share, and that the chanrobles.com-red

Page 237 U. S. 125

Puritan received several thousand less than its proportion. There was proof as to the number of tons these cars could have hauled; that the Puritan had orders for coal which it would have sold if these cars had been furnished; there was also evidence as to the royalty and cost of production, with data on which to make calculation of the damage resulting from the failure to receive cars.

The trial judge held that the state court had jurisdiction, and entered a judgment for the plaintiff, which, with interest, amounted to $74,323.88. Exceptions to the report were overruled, and the case was taken to the Supreme Court of Pennsylvania on assignments in which complaint was made that the trial judge erred --

"(1) in holding that the state court had jurisdiction;"

"(2) in failing to hold that, under the Commerce Act, the federal court alone had jurisdiction;"

"(3) in holding that the business between the Puritan Company and the railroad was intrastate business where coal was sold f.ob. the cars at the mines;"

"(4) in holding that the plaintiff could recover damages for failure to receive cars intended for use in shipping coal outside the state;"

"(5) in adopting the method for distributing cars on which the damages were collected;"

"(6) in failing"

"to take into account the private or individual cars, so-called, which were delivered to the plaintiff during the period of the action in determining the number which it would have been entitled to receive of the additional cars which the court has found should have been allotted to the region or district in which the plaintiff's mines were located. "

Page 237 U. S. 126