Interstate Commerce Commission -en-ing a discrimination of the railroad coms{{førcement of award - wrong basis pany against the plaintiffs in the J other evidence, distribution of coal cars in times of

of

3. A shipper may recover in a suit upon shortage, and produced a witness who a reparation order of the Interstate Commerce Commission, based upon a finding testified that the effect of the use of the of illegal discrimination in the distribution percentages in that table as the basis of of coal ears, where there is testimony fairly awarding damages by the Commission tending to show that a recovery of dam was to give plaintiffs the undue preferages in a sum at least equal to the Comence in the distribution of coal cars mission's award was justified because of which favored shippers had received. unfair practices in the distribution of coal That being so, this court held that the cars in times of shortage, condemned by the Corafnission, although it may appear that the sum awarded by the Commission was actually based upon an erroneous calculafiomatic enzivnu2

[No. 210.1

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 For other cases, see Interstate Commerce Com-based upon such use of the table the smission, Vin Digest Sup. Ct. 1918 Supp.) judgment of the circuit court of appeals for the third circuit, affirming that of the (.10-68 .19 a'ottoqoя . district court, was reversed, and the cause remanded for a new trial. The Argued, October 13, 1921. Decided Novem936) ber 1921 second trial in the district court resulted 299ilong gistim zdiže51591 — 21970 in a verdict and judgment for the plainrodamimiyozib 10 ENTERROR the United States Cir- tiffs in the sum awarded by the Commisduit Court of Appeals for the Third sion, with interest. 263 Fed. 945. That Circuit to review judgment which, on judgment was affirmed [87] by the a second writ of error, affirmed a fugiruit court of appeals (269 Fed. 111), ment of the District Court for the East ema District of Pennsylvania, enforcing toWe need not repeat the discussion on award of damages made by the Inconcerning distribution of cars in times terstate Commerce Commission base of shortage, which was held to result in of discrimination inthe distribution of wudne advantage. See 242 U. S. supra, POW cars. Affirmed 15 state Pp. 90, 91; Hillsdale Coal & Coke Co. v. Sam The same case below, 269 Fed. 111,biz Resania. Co. 19 Inters. Com. are stated in the opinion. gton Ropl362–36 kitet.

facts are Mr. Henry Wolf Biklé argued the fuse," and, with Messrs. Frederice D Mekenney and Francis I. Gowan, filed a beier for plaintiffimérror, a0—.9±0й

and the case is again here.

At the last trial, the testimony before the Commissione was put in evidence, with some additional testimony tending to show that plaintifs had been discrimi nated against because of the special al91siotal odotinent & MA William A. Glasgow, Jr., argued to the serwind-White Company the cause and filed a brief for defend to it, and to other companies, of a large of five hundred cars) daily and the sale adiqin errorsto one of yboшer #O number of chrs in times obfcar, shortage. 9tom 992--noi-zimumos, 3917192 oi! There was evidenéef tending to show that, HoMr Justice Day delivered the opinion but for these discriminations the plainof the court‚ŒCLA.я ̧J.), 919Ţitis would have receivedi tesuthicient -This cause has been the subject of number of ears to furnish them with, all auch and dong, continued controversy they needed during the periods, comthisisfits third appearance in this pour plained ofhist basti obro add to The previous history of the litigation The Commissionim the reports i cou set ontsin 242 €.o$.788,761 In ed. 165037 demned the practice 9 of givings tasted Sup CtoRep2-49. The action is based upon a reparation order made by the ladders daily by special allotment, and Berwind-White Coal Companydive hun terstaffe Commerce Commission in favor of faacoby & Goujany. A recovery was the selling of the company's own cars had in the Sawarded by the Commis, during the same period to favored ship sion, with interest Ad, the first riapers, thereby dishing its capasity s plaintif's glid not introduce the record supply the coal, car requirements of other of the testimony before the Cominission, coal companies along its line, The defendant rainous company, intro, need testimony tending to show that the Commission, in making its award, of damages, had used a stable attached a exhibit 10 to the record of the case, show,

142

9

رارو

When the Commission came to assess Lanages it allowed the plaintiffs. $21 091.35, with interest from Januar 1997. The order on which this awar! was made, is set forth in 212 U. S. supra. baz bomster237 U. S

Ο

Upon the new trial, with the additional before the Commission, the [89] court testimony and the whole record of the is unable to say that there is any other Commission introduced in evidence, the evidence, standing alone, which would be judge, after charging the jury that there sufficient, but the evidence which was bemight be a recovery if the discrimina- fore the Commission has all been offered tions alleged and proved resulted in dam- before you, and some additional testiages in the sum awarded by the Com-mony. The proper basis of damages in mission, charged:

that case, if the Commission has not reached the proper basis, would be upon the theory set out in the Commission's report, but not based on a comparison between what the favored shippers received and what the plaintiff received.

would have made on the coal they would have been able to ship. The question as to what coal they would have been able to ship is a question for you gentlemen to decide under the evidence in this case. You have had the schedules laid before you, counsel have argued the case to you and explained the grounds on which they respectively base their demand on the one side and the defense on the other, and the questions of fact are for your determination. The defendant has offered in evidence, and has shown you these facts, in regard to the 59.9 per cent and the 59.6 per cent, and, as I have al

"If you should find that the conclusion of the Interstate Commerce Commission that the plaintiff, in the year ending April 1, 1905, should have received cars equal in [88] capacity to 59.9 per cent of the aggregate of their mine's daily rat- "If the plaintiff is entitled to recover ing, and in the period between April 1 and has suffered damages, the measure of and October 18, 1905, cars equal in ca- damages would be the loss in operating, pacity to 59.6 per cent of the aggregate upon the coal that was actually shipped of their mine's daily rating,--if you through discrimination in favor of other should find that that conclusion was shippers, together with the profits it reached or arrived at because of the evidence presented by the plaintiff that the aggregate of the cars placed by the defendant at certain mines which had been selected for the purpose of comparison from those comprised in the region in which the plaintiffs' mine was located, had been equal in the earlier period to 59.9 per cent, and in the later period to 59.6 per cent of the aggregate ratings of these selected mines [these being the percentages of cars given to preferred companies, as shown in Exhibit 10] for the basis of the Commission's conclusion, then the award was an erroneous one, and under those circumstances the find-ready instructed you, if you find the ing of the Commission would lose its effect as prima facie evidence, and you would only be justified in finding for the plaintiff if you find that from the other evidence offered before the Commission, either of discrimination through distribution to favored shippers in the Tyrone region, or through withholding cars from "If the jury do not believe that the the Tyrone region, which should have plaintiff suffered any damages, or do not been distributed there, the Commission believe that they were discriminated was justified in arriving at that conclu- against in favor of other shippers, either sion. If you find that the Commission by the distribution of cars that were sent was justified in arriving at that conclusion, or are satisfied from that evidence, and that evidence is reinforced by further evidence that the plaintiff has offered in the case, then you would be justified in finding a verdict in favor of the plaintiff, and assessing damages at the amount found by the Commission.

Commission's finding was based on that, then the Commission's finding as to the amount of damages suffered should not be considered by the jury, but the jury will be obliged independently, if they can do so, to arrive at a proper amount of damages.

into this region or by the failure of the railroad company to send cars to the Tyrone region which should have been distributed there, then it [90] would be your duty to find a verdict in favor of the defendant."

As there was substantial testimony in the record to support the finding of the "If, however, you should find that that Commission in awarding damages in a was an erroneous finding, then it would sum at least equal to the amount assessed be your duty to find to what extent the by it, the principal question to be decided plaintiff was damaged; I mean, in case is: May a plaintiff recover in such ciryou find that the plaintiff was actually cumstances in a suit based upon a repadamaged, you would have to find to ration order of the Interstate Commerce what extent the plaintiff was actually Commission when there is testimony damaged. If you leave out the evidence fairly tending to show that recovery

was justified because of unfair practices, show that, had the cars been distributed 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?

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, giv. ing 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.

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 ahd discrimination. Pennsylvania R. Co. v. Clark Bros. Coal Min. Co. 238 U. S. 456, 59 L. ed. 1406, 35 Sup. Ct. Rep. 896, and the previous cases in this court, cited at p. 469. While this is true, when an action is brought upon a reparation order of the Commission, as it may be under § 16 of the Act to Regulate Commerce, its findings and order are prima facie evidence of the facts therein stated. Meeker v. Lehigh Valley R. Co. 236 U. S. 412, 59 L. ed. 644, P.U.R.1915D, 1072, 35 Sup. Ct. Rep. 328, Ann. Cas. 1916B, 691; Second Meeker Case, 236 U. S. 434, It follows that the judgment of the 59 L. ed. 659, 35 Sup. Ct. Rep. 337; Circuit Court of Appeals must be afMills v. Lehigh Valley R. Co. 238 U. S. 473, 59 L. ed. 1414, 35 Sup. Ct. Rep. 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 REPUBLIC IRON & STEEL COMPANY 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 [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.

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).

firmed.

[92] BETER WILSON, Plff. in Err.,

V.

and Warner Stinson.
(See S. C. Reporter's ed. 92-99.)
Error to district court

below.

-

jurisdiction

1. Whether a Federal district court

into which a cause of action has been removed from a state court may retain the

Note. On direct review in Federal Supreme Court of judgments of district or circuit courts-see notes to Gwin v. United States, 46 L. ed. U. S. 741; B. Altman & Co. v. United States, 56 L. ed. U. S. 894; and Berkman v. United States, 63 L. ed. U. S. 877.

As to what judgments or decrees are final for purposes of review-see notes to Gibbons v. Ogden, 5 L. ed. U. S. 302; Schlosser v. Hemphill, 49 L. ed. U. S. 1001; and Detroit & M. R. Co. v. Michigan R. Commission, 60 L. ed. U. S. 802.

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. As to removal of causes in cases of Nevertheless, the coincidence of percent- separable controversy-see notes to Milage and award remains, and the conclu- ler v. Clifford, 5 L.R.A. (N.S.) 50; Sloane sion is inescapable that the Commission. v. Anderson, 29 L. ed. U. S. 899; Butin 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

ler v. National Home, 36 L. ed. U. S. 346; Torrence v. Shedd, 36 L. ed. U. S. 528; and Merchants Cotton Press & Storage Co. v. Insurance Co. of N. A. 38 L. ed. U. S. 195.

On removal of causes in cases of diverse citizenship-see notes to Whelan v. New York, L. E. & W. R. Co. 1 L.R.A. 65; Seddon v. Virginia, T. & C. Steel & I. Co. 1 L.R.A. 108; Huskins v. Cincin- 528.

Removal of causes

separable con- a question for the state court to decide. fraudulent joinder joint In no event could it constitute ground for removal.

troversy liability. 10. A personal-injury action brought by a resident employee in which another resident employee was fraudulently joined as defendant with the nonresident employer, without any purpose to prosecute the action in good faith as against the defendant employee, and with the purpose of fraudulently defeating the employer's right to Federal district court, may be so removed whether the local law makes for or against a joint liability (the asserted liability of one resting on a statute, and that of the other on the common law), under the cir

remove the cause from a state into a

cumstances.

(For other cases. see Removal of Causes, IV. c, in Digest Sup. Ct. 1908.]

[No. 21.]

Argued and submitted October 6 and 1921. Decided November 7, 1921.

Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 113, 114, 57 L. ed. 1095, 1096, 33 Sup. Ct. Rep. 684.

The mere fact that the defendant Republic Iron & Steel Company was liable by virtue of the Employers' Liability Statutes of Alabama, and the defendant Stinson was liable at common law, presented no ground for removal.

Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 113, 57 L. ed. 1096, 33 Sup. Ct. Rep. 684; Southern R. Co. v. Miller, 217 U. S. 215, 216, 54 L. ed. 735, 736, 30 Sup. Ct. Rep. 450.

The fact that a prior suit had been brought in the state court against the nonresident defendant solely, and subse7, quently dismissed in the Federal court, after removal thereto, has been held by this court to present no ground whatever for removal.

I N ERROR to the District Court of

the United States for the Northern District of Alabama to review a judgment which dismissed a personal-injury action which was removed to that court from a court of that state. Affirmed.

The facts are stated in the opinion. Mr. W. A. Denson argued the cause and filed a brief for plaintiff in error: The resident defendant, Warner Stinson, was properly joined as a party defendant with the nonresident defendant, Republic Iron & Steel Company.

Louisville & N. R. Co. v. Abernathy, 197 Ala. 535, 73 So. 103; Charman V.

Lake Erie & W. R. Co. 105 Fed. 449;
Republic Iron & Steel Co. v. Lee, 227
Ill. 246, 81 N. E. 411; Coalgate Co. v.
Brass, 25 Okla. 244, 138 Am. St. Rep.
915, 107 Pac. 425; Lake Erie & W. R. Co.

v. Charman, 161 Ind. 95, 67 N. E. 923;
Mayberry v. Northern P. R. Co. 100
Minn. 79, 12 L.R.A.(N.S.) 675, 110 N.
W. 356, 10 Ann. Cas. 754.

The mere fact that a Federal court has held to the contrary, as in the case of Warax v. Cincinnati, N. O. & T. P. R. Co. 72 Fed. 637, is not at all conclusive of the right of removal. The Supreme Court of the United States has held that this is a question of state law, and that it would not go behind the decision of the highest court of the state.

Chicago, R. I. & P. R. Co. v. Schwvhart, 227 U. S. 193, 194, 57 L. ed. 477, 478. 33 Sup. Ct. Rep. 250.

Whether there was a joint liability or not was a question to be determined upon the averments of the plaintiff's statement of his cause of action, and is

Southern R. Co. v. Miller, supra.

The allegation of the petition that it was the intent and purpose of the plaintiff, in joining the resident defendant Warner Stinson, to prevent the removal of the cause to the Federal court, affords no ground for removal.

Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 193, 194, 57 L. ed. 477, 478, 33 Sup. Ct. Rep. 250; Chicago, R. I. & P. R. Co. v. Whiteaker, 239 U. S. 424, 425, 60 L. ed. 363, 364, 36 Sup. Ct. Rep.

152.

Not only were the allegations of fraudulent joinder insufficient, but there was also no attempt made to prove the allegations as made.

Louisville & N. R. Co. v. Wangelin, 132 U. S. 599-603, 33 L. ed. 474-477, 10 Co. v. Cockrell, 232 U. S. 153, 154, 58 Sup. Ct. Rep. 203; Chesapeake & O. R. L. ed. 547, 548, 34 Sup. Ct. Rep. 278; Plymouth Consol. Gold. Min. Co. v. Amador & S. Canal Co. 118 U. S. 264271, 30 L. ed. 232-234, 6 Sup. Ct. Rep.

1034.

Mr. Augustus Benners submitted the cause for defendants in error:

It is fundamental that the writ of error may not be sued out in the absence of a final judgment.

MeLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118.

The overruling of the motion to remand is not reviewable by writ of error. Bender v. Pennsylvnia Co. 148 U. S. 502, 37 L. ed. 537, 13 Sup. Ct. Rep. 640.

The order of the district court, dismissing the case for failure of plaintiff