a reasonable rule, and yet seeks to recover upon the ground that more cars were not delivered to it under a rule which was unreasonable, because unduly discriminatory in its favor. Consistently with the act this cannot be done. Judgment reversed. (242 U. S. 288) LOUISVILLE & NASHVILLE RAILROAD V. OHIO VALLEY TIE COMPANY. COURTS 394(15)-ERROR TO STATE COURT part of its defense the carrier claimed that enforcement of the discriminatory rule, and the cars distributed to the coal company of the particular feature which made it disduring that period included many individ-criminatory, can a recovery be had. A right ual cars controlled by the latter, and that to recover independently of that is neither these were not charged against its distribu- shown nor claimed. In short, the coal comtive share. Evidently intending to recog-pany concedes that it received all the cars nize that this was so, and desiring to shorten to which it would have been entitled under the trial, the parties agreed that a verdict should be taken for the co! company in a designated sum, subject to the condition, among others, that "if, under the practice, the law, and the rules," the court should conclude that "the plaintiff company should have been charged with individual cars," then judgment should be entered for the carrier non obstante veredicto. The verdict was taken and judgment entered thereon, the court concluding that the rule should be respected notwithstanding the Commission's finding. Complaint is made of this decision, and we think it was wrong. That this shipper was not a party to the proceeding before the Commission hardly needs notice, no point being made of it in the briefs. And it is not a valid objection that the finding came after the period to which the suit relates. The act contemplated that the proceeding should be conducted in the interest of all the shippers who had been, or were likely to be, affected by the rule, and not merely in the interest of those who filed the complaint. The purpose was to determine the character of the rule for the equal benefit of all, to the end not only that discrimination thereunder in the future might be prevented, but also that such discrimination in the past might be redressed. So understanding the act, the Commission, upon finding the rule unjustly discriminatory, or2. All the damages that properly can dered the carrier to cease giving effect to it, be attributed to a carrier's overcharge, and also recognized that shippers who had whether it be the keeping of the shipper out been injured through its operation in the of its money, or the damage to its busipast were entitled to reparation. And the ness following as a remoter result of the Commission proceeded to award reparation same cause, must be deemed to have been to such shippers as appeared and ade-Commerce Commission of a sum of money. included in an award by the Interstate quately proved their injury and the amount to a shipper as reparation for unreasonable of damages sustained. Not only so, but the rates, pursuant to the provisions of the Commission's report makes it plain that the Act of February 4, 1887 (24 Stat. at L. finding was not based upon any temporary 382, chap. 304, Comp. Stat. 1913, §§ 8572, or changeable condition existing at the time, 8573, 8581) §§ 8, 9, 13, which contemplate but upon what inhered in the rule, and the recovery of all damages sustained through therefore was true from the time of its violations of the act, either before the Commission or in the courts, requiring, however, adoption. The legal propriety of the Coman election between the two methods of mission's finding is not questioned, but procedure; and a satisfaction of the Comonly that it operates to discredit the car- mission's award precludes any recovery in rier's rule as respects earlier transactions. a subsequent action in a state court for any damages arising out of such overcharge. [Ed. Note.-For other cases, Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. 88.] 1. A case in which the defeated party insisted at the trial court and on appeal in the highest state court upon its asserted rights under the Interstate Commerce Act of February 4, 1887 (24 Stat. at L. 382, chap. 104, § 8, Comp. Stat. 1913, § 8572), and in which those rights were passed upon adversely by the latter court, is within the appellate jurisdiction of the Federal Su preme Court. [Ed. Note. For other cases, see Courts, Cent. see In the circumstances stated we are of opinion that effect must be given to the Commission's finding, even though it came after the transactions in question, and that a recovery by the coal company cannot be permitted without departing from the uniformity and equality of treatment which the Argued November 3 and 6, 1916. Decided act is intended to secure. Only through an [No. 66.] December 18, 1916. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes IN IN ERROR to the Court of Appeals of the State of Kentucky to review a judgment which affirmed a judgment of the Circuit Court of Jefferson County, in that | state, in favor of plaintiff in a suit by a shipper against an interstate carrier to recover damages for wilful and malicious injury to the former's business. Reversed. See same case below, 161 Ky. 212, 170 S. W. 633. The facts are stated in the opinion. Messrs. Helm Bruce and Henry L. Stone for plaintiff in error. Messrs. Edward W. Hines, John Bryce Baskin, and J. V. Norman for defendant in error. and before the court of appeals upon its rights under the Act to Regulate Commerce, and those rights were passed upon by the court, so that there is no doubt of the jurisdiction here, although some questions were raised that we think it unnecessary to discuss. The defendant contended and asked for a ruling that in this action no damages could be allowed "on account of defendant's having charged to and collected from plaintiff unreasonable rates of freight for the carriage of interstate shipments of crossties" and other rulings to similar effect. It also asked an instruction that, under the Act to Regulate Commerce, it was required to collect the rates fixed by its tariff on file and Mr. Justice Holmes delivered the opinion in effect. These requests were refused, and of the court: This is a suit brought by the defendant in error in 1911 against the railroad company to recover for injury to business and other damages alleged to have been caused by the railroad's acts. The most important feature at this stage is that the railroad maintained and collected a higher rate for crossties than it did for lumber when they were carried between states, although the State Commission required the same rate upon both for carriage within the state, and although, as the railroad knew, the Interstate Commerce Commission repeatedly had decided that the rates for crossties and lumber should be the same. It is alleged that these and the other acts complained of were done for the purpose of getting rid of the plaintiff as a competitive buyer, and, in that sense, maliciously. The plaintiff tried to meet the higher rate by directing delivery within the state of ties intended to go beyond, which attempt the defendant encountered by refusal to carry them except on its interstate tariff, and hampered the plaintiff by declining to let its cars leave its road, by deliveries at points requiring a haul by wagon, and so forth; and, in short, it may be assumed that the railroad did other acts to further the alleged end, not necessary to be stated here. Shortly before bringing this suit the plaintiff complained to the Interstate Commerce Commission in respect of charges collected upon ninety-one carloads of ties, and in 1912 obtained an order that the railroad pay to it $6,198 as reparation for unreasonable rates, and establish a rate for ties not to exceed its contemporaneous one for lumber of the same kind of wood. This order was pleaded by an amendment to the petition, and it appeared at the trial that the sum awarded had been paid. As the damage alleged was attributed mainly to the publication and exaction of excessive charges, the defendant insisted at the trial' the jury were told that if they believed that the rates found by the Interstate Commerce Commission to be unreasonable were wilfully and maliciously maintained with intent to injure the plaintiff's business, and that the defendant knew them to be unreasonable, and that by its acts it tied up a part of the plaintiff's capital, and so damaged the plaintiff's business, then upon this, as well as on several other possible findings stated, they would find for the plaintiff. The jury found a verdict for the plaintiff for certain itemized expenses and for $50,000 damage to plaintiff's business and credit, as mentioned in the above instruction. Judgment on the verdict was affirmed by the court of appeals. 161 Ky. 212, 170 S. W. 633. The court of appeals decided that the Act to Regulate Commerce committed to the Interstate Commerce Commission only the granting of special relief against the making of an overcharge, and that the satisfaction of the Commission's award still left open an action in the state courts to recover what are termed general damages, such as are supposed to have been recovered in this case. In this we are of opinion that the court was wrong. By 8 a common carrier violating the commands of the act is made liable to the person injured thereby. "for the full amount of damages sustained in consequence" of the violation. [24 Stat. at L. 382, chap. 104, Comp. Stat. 1913, § 8572.] By § 9 any person so injured may make complaint to the Commission or may sue in a court of the United States to recover the damages for which the carrier is liable under the act, but must elect in each case which of the two methods of procedure he will adopt. The rule of damages in one hardly can be different from that proper for the other. An award directing the carrier to pay to the complainant the sum to which he is entitled is provided for by § 16. By the same section, if the carrier does not comply in ERROR to the Supreme Court of the due time with the order, the complainantate of Minnesota to review a judgment may sue in a state court,-which implies that if the order has been complied with and the money paid no suit can be maintained. It is to be noticed further that reparation before answer is contemplated as possible by § 13, and in that case the carrier shall be relieved of liability to the complainant, though only, of course, for the particular violation of law. The decisions say that whatever the damages were, they could be recovered (Pennsylvania R. Co. v. International Coal Min. Co. 230 U. S. 184, 202, 203, 57 L. ed. 1446, 1453, 1454, 33 Sup. Ct. Rep. 893, Ann. Cas. 1915A, 315; Meeker v. Lehigh Valley R. Co. 236 U. S. 412, 429, 59 L. ed. 644, 657, P.U.R.1915D, 1072, 35 Sup. Ct. Rep. 328, Ann. Cas. 1916B, 691); and that the statute determines the extent of damages (Pennsylvania R. Co. v. Clark Bros. Coal Min. Co. 238 U. S. 456, 472, 59 L. ed. 1406, 1413, 35 Sup. Ct. Rep. 896). We are of opinion that all damage that properly can be attributed to an overcharge, whether it be the keeping of the plaintiff out of its money, dwelt upon by the trial court, or the damage to its business following as a remoter result of the same cause, must be taken to have been considered in the award of the Commission and compensated when that award was paid. If, at a new trial, the plaintiff can prove that the defendant unjustifiably refused cars or caused it other damage not attributable to the overcharge of freight, our decision does not prevent a recovery; but it is evident that the present judgment embraces elements that cannot be allowed. Judgment reversed. (242 U. S. 292) which, on a second appeal, affirmed a judgment of the District Court of Ramsey County, in that state, in favor of plaintiff in an action based upon the Federal Employers' Liability Act. Reversed. See same case below, on first appeal, 123 Minn. 264, 143 N. W. 724; on second appeal, 128 Minn. 119, 150 N. W. 382. The facts are stated in the opinion. Messrs. Blewett Lee and W. S. Horton for plaintiff in error. Mr. Samuel A. Anderson for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action brought under the Federal Employers' Liability Act to recover for personal injuries caused by a rear end collision in Kentucky. The railroad company denied that the case was governed by the Federal act, contending that the train upon which the plaintiff was moving was engaged in local business only, between two points within the state. The issue was important as affecting the rules of law to be applied. At a second trial the judge, intending to follow the previous decision of the supreme court of the state (123 Minn. 264, 143 N. W. 724), ruled that the accident happened in interstate commerce, and that the act of Congress governed the case. The defendant excepted and assigned as error that the court determined the matter of fact instead of leaving it to the jury, in accordance with the intimation of the former decision (123 Minn. 266), but the judgment was affirmed by the supreme court of the state (128 Minn. 119, 150 N. W. 382). We are of opinion that the ruling was ILLINOIS CENTRAL RAILROAD COM- wrong, as, we think, will be seen from a PANY, Plff. in Err., V. ROBERT H. PEERY. COMMERCE 27(6)-EMPLOYERS' LIABILSERVANT ENGAGED IN "INTERSTATE COMMERCE." ITY WHEN A freight conductor employed on a round-trip run between two points in the same state cannot be said still to be engaged in interstate commerce, within the meaning of the Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), while making his return trip with a train devoted solely to domestic commerce, because his train on the trip out carried interstate freight. [Ed. Note.-For other cases, see Commerce, Dec. Dig. 27(6). For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] [No. 77.] short statement of the facts. The plaintiff was a freight conductor on the defendant's road, having his principal run from Paducah, south, to Fulton, both in Kentucky, and the same day back from Fulton, north, to Paducah. According to his testimony he took back the engine, caboose, and crew with which he started, and was allowed 100 miles of mileage in compensation for the trip out and back. The train out generally and on this occasion had freight destined to beyond the limits of the state. That on the return depended on what could be picked up, the engine and caboose sometimes coming back alone. The accident happened when the engine was returning to Paducah, after having taken up a switch engine from the Fulton yards seemingly in need of repairs at the Paducah shops, and a pile Argued and submitted November 7 and 8, driver and outfit on three flat cars, and 1916. Decided December 18, 1916. having in the rear, behind the last, the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes plaintiff's caboose. The pile driver was dropped on the way, at Mayfield, and the train thereafter consisted of the two engines and the caboose. The plaintiff was sitting in the caboose, making up a report of his trip out and back, when the collision occurred. Employers' Liability Act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, §§ 8659, 8660) §§ 3, 4, the defenses of contributory negligence and assumption of risk in an action by such employee under the latter act to recover for injuries received after a rest of fourteen hours, if the breach of the Hours of Service Act was a cause contributing to the injury, since no reason can be given for limiting liability to injuries happening while the violation of law is going on, and the ten-hour rest period fixed by the Hours of Service Act is a minimum and has nothing to do with the question of for rest after work no longer than allowed, the varying rest necessary after work has extended beyond the lawful time. [Ed. Note.--For other cases, see Master and Dec. Dig. Servant, Cent. Dig. §§ 545, 671; 204(2), 228(2).] [No. 375.] ber 18, 1916. N ERROR to the Appellate Court for the First District of the State of Illinois to review a judgment which affirmed a judg ment of the Circuit Court of Cook County, in that state, in favor of plaintiff in an action brought under the Federal Hours of Service and Employers' Liability Acts. Affirmed. Of course the plaintiff treats the round trip as one, and the return as merely the necessary complement of the trip out. The conclusion is drawn that the plaintiff still was engaged in interstate commerce because the train out had cars destined to Tennessee. But, on the other hand, the trips out and back were distinct, in opposite directions, with different trains. The plaintiff's journey was confined wholly to Kentucky. Only the circumstance that the southbound train from Paducah carried freight destined to beyond Fulton caused him to be Argued December 5, 1916. Decided Decemengaged in interstate commerce while on that trip. On the return, when he was injured, all the freight had domestic destinations. It is true that the greater certainty of getting traffic going south probably was the chief reason for the establishment of the circuit; but they got what they could coming back; generally a train or a part of a train. It seems to us extravagant to subordinate the northerly to the southerly journey so completely that if, on the latter, there happened to be a parcel destined beyond the state, the conductor should be regarded as still engaged in commerce among the states when going from Fulton to Paducah, even though he had a full train devoted solely to domestic commerce. it must be remembered that if the northerly movement is regarded as the incident of the southerly, that subordination is independent of the character of the commerce, and depends solely on the fact that southerly moving business, no matter what, induced establishing the route. Therefore it does not matter that the interstate traffic moving south was greater than, for purposes of illustration, we have supposed. Judgment reversed. (242 U. S. 295) For See same case below, 194 Ill. App. 491. The facts are stated in the opinion. Messrs. James B. Shecan, William J. Calhoun, Will H. Lyford, and George E. Hamilton for plaintiff in error. Mr. Morse Ives for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action for personal injuries, brought under the Hours of Service Act, March 4, 1907, chap. 2939, § 2, 34 Stat. at L. 1415, 1416, Comp. Stat. 1913, §§ 8677, 8678, and the Employers' Liability Act, April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, § 8657. There is a count alleging an improper construction of tracks, and there are others, which alone are of importance here, alleging that the plaintiff was kept on duty for more than sixteen hours, and subsequently (we may take it BALTIMORE & OHIO RAILROAD COM- in fact to have been fourteen hours later) PANY, Plff. in Err., V. JAMES B. WILSON. MASTER AND SERVANT 204(2), 228(2) put on duty again and injured because he was so exhausted as to be unable to protect himself in the work that he was attempting to perform. At the trial the judge instructHOURS OF SERVICE EMPLOYERS' LIABIL- ed the jury that if they found that the deITY-CONTRIBUTORY NEGLIGENCE As- fendant had been guilty of the breach of SUMPTION OF RISK. duty alleged, and that the breach proximatey contributed to the plaintiff's injury, then they should not consider negligence, if any, on the part of the plaintiff, in determining the amount of the plaintiff's damages, if any. In other words, under § 3 of the Em A violation of the Hours of Service Act of March 4, 1907 (34 Stat. at L. 1415, chap. 2939, Comp. Stat. 1913, § 8677), by keeping a railway employee on duty for more than sixteen consecutive hours, excludes, by virtue of the provisions of the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ployers' Liability Act, he allowed a viola- | occupied_by_them," under penalty of $25, tion of a statute enacted for the safety of recoverable by "any person feeling himself employees to be found to exclude contribu- aggrieved" by the company's neglect or retory negligence, although at the time of the fusal, will not be held to offend against the accident the violation was fourteen hours equal protection of the laws or the due process of law clauses of U. S. Const. 14th Amend., where the statute has as yet been given no broader construction by the state courts than one which permits a single recovery by a contiguous landowner because of a railway company's failure to cut and destroy weeds on its right of way. old. It is not important to give the particulars of the accident. The plaintiff was a freight conductor, and was intending to cut a car with a hot box out of a train. He stood on the running board at the rear of an engine on a side track until it drifted abreast of the car standing on the main track, when he stepped off and was very badly hurt. [Ed. Note.-For other cases, see Agriculture, Dec. Dig. 8; Constitutional Law, Cent. Dig. §§ 700, 701, 832-834; Dec. Dig. 241, 297.] [No. 34.] Argued October 25, 1916. Decided December 18, 1916. I IN ERROR to the Supreme Court of the The first step in the railroad's real defense was that the plaintiff was not kept on duty more than sixteen hours, a proposition that there was substantial evidence to maintain. But that having been overthrown by the verdict, it contends that the injury State of Indiana to review a judgment must happen during the violation of law, which affirmed a judgment of the Circuit or at least that the Hours of Service Law Court of Sullivan County, in that state, in fixes the limit of possible connection be- favor of plaintiff in an action to recover tween the overwork and the injury at ten a penalty from a railway company for its hours by the provision that an employee, failure to cut down and destroy noxious after being continuously on duty for six-weeds on its right of way. Affirmed. But no E. 49. The facts are stated in the opinion. Messrs. William F. Peter and James C. Hutchins for plaintiff in error. No appearance for defendant in error. Mr. Justice McKenna delivered the opinion of the court: teen hours, shall have at least ten consecu- See same case below, 182 Ind. 140, 105 N. tive hours off. It also objects that the plaintiff, if feeling incompetent to work, should have notified the defendant. reason can be given for limiting liability to injuries happening while the violation of law is going on, and as to the ten hours, the statute fixes only a minimum, and a minimum for rest after work no longer than allowed. It has nothing to do with the question of the varying rest needed after work extended beyond the lawful time. In this case there was evidence that whether technically on duty or not, the plaintiff had been greatly over taxed before the final strain of more than sixteen hours, and that, as a physical fact, it was far from impossible that the fatigue should have been a cause proximately contributing to all that happened. If so, then by the Employers' Liability Act, §§ 3 and 4, questions of negligence and assumption of risk disappear. Judgment affirmed. (242 U. S. 283) CHICAGO, TERRE HAUTE, & SOUTH- in Err., V. CHAMPION S. ANDERSON. AGRICULTURE 8-CONSTITUTIONAL LAW 241, 297-EQUAL PROTECTION OF THE LAWS DUE PROCESS OF LAW-REQUIRING RAILWAY COMPANY ΤΟ REMOVE NOXIOUS WEEDS-PENALTY. The requirement of Indiana Act of March 6, 1889,1 that railway companies cut down and destroy noxious weeds "on lands' A statute of Indiana provides as follows: "Sec. 1. . That all railroad corporations doing business in this state shall, between the 1st day of July and the 20th day of August, in each year, cause all thistles, burs, docks, and other noxious weeds growing on lands occupied by them in any city, village or township of this state, to be cut down and destroyed. "Sec. 2. In case any railroad company shall refuse or neglect to comply with the requirements specified in the first section of this act, such company shall be liable in a penalty of $25 to be prosecuted for in an action of debt by any person feeling himself aggrieved. Said suit may be brought before any justice of the peace in the county, who shall require of the complainant surety to pay costs in case he fails to maintain his action. Summons may be served on any agent or officer of the company." [Burns's Anno. Stat. 1914, §§ 5524, 5525.] The company was proceeded against under this statute by defendant in error, who alleged that the railroad company is a corporation doing business in the state, and that one of the branches of its railway lines intersects and runs through his land for a distance of of a mile in the township of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 Burns' Ann. St. 1914, §§ 5524, 5525. |