in attendance upon court and during a rea- | N. J. L. 366, decided in the New Jersey sonable time in coming and going. [Ed. Note.-For other cases, see Process, Cent. Dig. $ 148, 149; Dec. Dig. 119.] [No. 105.] Argued and submitted November 15, 1916. IN N ERROR to the District Court of the United States for the Northern District of Illinois to review an order quashing a summons because served on a nonresident while he was returning from the court room after testifying in a case in which he was a party. Affirmed. supreme court nearly one hundred years ago, upon the following reasoning: "Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them. The citizen in every claim of right which he exhibits, and every defense which he is obliged to make, should be permitted to approach them, not only without subjecting himself to evil, but even free from the fear of molestation or hindrance. He should also be enabled to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights. Now, this great object in the administration of justice would in a variety of ways be obstructed if parties and witnesses were liable to be served with process while actually attending the court. It is often matter of great importance to the citizen, to prevent the institution and prosecution of a suit in any court, at a distance from his home and his means of defense; and the fear that a suit may be Stewart brought an action at law against commenced there by summons will as efRamsay in the United States district court fectually prevent his approach as if a for the northern district of Illinois, and capias might be served upon him. This is the summons was served personally upon especially the case with citizens of neighbordefendant in that district. The jurisdicing states, to whom the power which the tion was invoked on the ground that plain The facts are stated in the opinion. error. Mr. Clarence S. Darrow for defendant in error. Mr. Justice Pitney delivered the opinion of the court: tiff was a citizen of Illinois and a resident of the northern district, and defendant was a citizen and resident of Colorado. Ramsay pleaded in abatement that he was a resident of the state of Colorado and was served with process while in attendance upon the district court as a witness in a case wherein he was plaintiff and one Anderson defendant, and that the process was served while he was returning from the courtroom after testifying. Upon plaintiff's demurrer this plea was sustained, and, plaintiff electing to stand upon his demur rer, it was ordered that the writ be quashed and the defendant go without day. The present writ of error was sued out under 238, Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215], the jurisdictional question being certified. That a direct writ of error lies in such a case is well settled. G. & C. Merriam Co. v. Saalfield, 241 U. S. 22, 26, 60 L. ed. 868, 36 Sup. Ct. Rep. 477. In our opinion, the decision of the district court was correct. The true rule, well founded in reason and sustained by the greater weight of authority, is that suitors, as well as witnesses, coming from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going. A leading authority in the state courts is Halsey v. Stewart, 4 court possesses of compelling attendance cannot reach." The state courts, with few exceptions, have followed this rule, applying it to plaintiffs as well as defendants, and to witnesses attending voluntarily as well as those under subpœna. Illustrative cases may be cited: Richardson v. Smith, 74 N. J. L. 111, 114, 65 Atl. 162; Matthews v. Tufts, 87 N. Y. 568; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176; Andrews v. Lembeck, 46 Ohio St. 38, 15 Àm. St. Rep. 547, 18 N. E. 483; Wilson v. Donaldson, 117 Ind. 356, 3 L.R.A. 266, 10 Am. St. Rep. 48, 20 N. E. 250; First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308; Linton v. Cooper, 54 Neb. 438, 69 Am. St. Rep. 727, 74 N. W. 842; Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Murray v. Wilcox, 122 Iowa, 188, 64 L.R.A. 534, 101 Am. St. Rep. 263, 97 N. W. 1087; Martin v. Bacon, 76 Ark. 158, 113 Am. St. Rep. 81, 88 S. W. 863, 6 Ann. Cas. 336. There are a few cases to the contrary, of which Bishop v. Vose, 27 Conn. 1, 11; Baldwin v. Emerson, 16 R. I. 304, 27 Am. St. Rep. 741, 15 Atl. 83; Lewis v. Miller, 115 Ky. 623, 74 S. W. 691, are instances. In Blight v. Fisher (1809) Pet. C. C. 41, Fed. Cas. No. 1,542, Mr. Justice Washington, sitting at circuit, held that the privilege of a suitor or witness extended only to an exemption from arrest, and that the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes service of a summons was not a violation | COMMERCE 89-COURTS CONCURRENT of the privilege or a contempt of court JURISDICTION SUIT AGAINST INTERunless done in the actual or constructive STATE CARRIER FAILURE TO FURNISH CARS-ADMINISTRATIVE QUESTION. presence of the court. But in Parker v. Hotchkiss (1849) 1 Wall. Jr. 269, Fed. 2. Jurisdiction of an action to recover damages arising out of a carrier's failure upon reasonable demand and under normal conditions to supply to a shipper in inter transport the output of the latter's coal mine may be entertained by a state court consistently with the provisions of the Act of February 4, 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563), §§ 8, 9, prescribing modes of redress to shippers aggrieved by violations of that act, and § 22, preserving existing rights and remedies, although the carrier may have been applying or following a rule for allotting cars which did not entitle the shipper to receive as many cars as it needed and requested, since, the conditions in the coal trade being normal, and the demand for the cars being reasonable, the rule was inapplicable, and there was, therefore, no administrative question for the Interstate Commerce Commission to solve. Cas. No. 10,739, District Judge Kane, with the concurrence, as he states, of Chief Justice Taney and Mr. Justice Grier, over-state commerce a sufficient number of cars to ruled Blight v. Fisher, and sustained the privilege in favor of a nonresident admitted to make defense in a pending suit, and served with summons while attending court for that purpose, the court declaring: "The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony; and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim or the rightfully fearless assertion of a defense, if they were liable to be visited on the instant with writs from the defeated party." Since this decision, the Federal circuit and district courts have consistently sustained the privilege. Juneau Bank v. MeSpedan, 5 Biss. 64, Fed. Cas. No. 7,582; Brooks v. Farwell, 2 McCrary, 220, 4 Fed. 166; Atchison v. Morris, 11 Biss. 191, 11 Fed. 582; Nichols v. Horton, 4 McCrary, 567, 14 Fed. 327; Wilson Sewing Mach. Co. v. Wilson, 23 Blatchf. 51, 22 Fed. 803; Small v. Montgomery, 23 Fed. 707; Kinne [Ed. Note.-For other cases, see Commerce, Dec. Dig. 89.] CARRIERS 45-EVIDENCE-RELEVANCY 3. Evidence of the number of the carrier's coal cars on other railway lines is immaterial in an action to recover damages arising out of the carrier's failure, upon reasonable demand, to supply to a shipper in interstate commerce a sufficient number of cars to transport the output of the latter's coal mine, where there is no claim of a car shortage, or that conditions in the coal trade were other than normal. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. 45.] [No. 10.] v. Lant, 68 Fed. 436; Hale v. Wharton, 73 Argued May 14, 1915. Reargued October 25, Fed. 739; Morrow v. U. H. Dudley & Co. 144 Fed. 441; Skinner & M. Co. v. Waite, 155 Fed. 828; Peet v. Fowler, 170 Fed. 618; Roschynialski v. Hale, 201 Fed. 1017. Judgment affirmed. (242 U. S. 120) I 1915. Decided December 4, 1916. N ERROR to the Supreme Court of the State of Pennsylvania to review a judgment which affirmed a judgment of the Court of Common Pleas of Clearfield County, PENNSYLVANIA RAILROAD COMPANY, in that state, in favor of a shipper in an Plff. in Err., merce. action against a railway company for damages caused by the failure of the latter to furnish cars. Affirmed. Sce same case below, 241 Pa. 487, 88 Atl. 746. The facts are stated in the opinion. Messrs. Francis I. Gowen, John G. Johnson, and Frederic D. McKenney for plaintiff in error. [Ed. Note. For other cases, see Commerce, For other cases see same top.c & KEY-NUMBER in all Key-Numbered Digests & Indexes Mr. Justice Van Devanter delivered the opinion of the court: The coal company brought this action to recover damages from the railroad company upon two grounds: first, that for a period of four years, beginning April 1, 1903, the railroad company had failed to supply the coal company with a sufficient number of cars to meet the needs of the latter's coal mine; and, second, that during the same period the railroad company, in furnishing cars to the several mines in that district, had discriminated unjustly against the coal company and in favor of some of its competitors. The second ground was eliminated by the coal company at the trial, and does not require further notice. The action was begun in a state court and resulted in judgment for the coal company for $145,830.25, which the supreme court of the state affirmed. 241 Pa. 487, 88 Atl. 746. the state court to exercise a jurisdiction which it did not possess. In the courts below the railroad company contended that, in so far as the commerce involved was interstate, the action could not be entertained by a state court consistently with the Interstate Commerce Act, chap. 104, 24 Stat. at L. 379, Comp. Stat. 1913, § 8563, and that contention is renewed here. It proceeds upon the theory, first, that the coal company was without any right to redress in respect of its interstate business unless the failure to supply it with the requisite cars was a violation of some provision of that act; second, that §§ 8 and 9 of the act prescribe the only modes of obtaining redress for violations of its provisions; and, third, that an action for damages in a state court is not among the modes prescribed. It is true that §§ 8 and 9 deal with the redress of injuries resulting from violations of the act, and give the person injured a right either to make complaint to the Interstate Commerce Commission or to bring an action for damages in a Federal The questions presented by the several assignments of error are: (1) What was the nature of the commerce involved? (2) If the commerce was interstate, was the action cognizable in a state court? (3) Was prejudicial error committed in exclud-court, but not to do both. If the act said ing evidence presently to be mentioned? The coal company sold its coal f. o. b. cars at the mine, and when the cars were loaded, the coal was promptly forwarded to the purchasers at points within and without the state,-largely to points in other states. This was well understood by both companies, by the coal company when it asked for cars and by the railroad company when it supplied them. Cars were not requested or furnished merely to be used in holding or storing coal, but always to be employed in its immediate transportation. While furnishing some cars for this service, the railroad company failed to furnish as many as the coal company needed and requested. It is plain that supplying the requisite cars was an essential step in the intended movement of the coal and a part of the commerce whether interstate or intrastate to which that movement belonged. It was expressly so held in Pennsylvania R. Co. v. Clark Bros. Coal Min. Co. 238 U. S. 456, 465-468, 59 L. ed. 1406, 1410-1412, 35 Sup. Ct. Rep. 896. We there said of the sale and delivery of coal f. o. b. at the mine for transportation to purchasers in other states: "The movement thus initiated is an interstate movement and the facilities required are facilities of interstate commerce." Here the state court ruled that, as the coal was sold f. o. b. at the mine, the commerce involved was intrastate, even though the coal was going to purchasers outside the state. This was error, but it plainly was without prejudice unless it led nothing more on the subject it well may be that no action for damages resulting from a violation of the act could be entertained by a state court. But the act shows that §§ 8 and 9 do not completely express the will of Congress as respects the injuries for which redress may be had or the modes in which it may be obtained, for § 22 contains this important provision: "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." The three sections, if broadly construed, are not altogether harmonious, and yet it evidently is intended that all shall be operative. Only by reading them together and in connection with the act as a whole can the real purpose of each be seen. They often have been considered and what they mean has become pretty well settled. Thus we have held that a manifest purpose of the provision in § 22 is to make it plain that such "appropriate common law and statutory remedies" as can be enforced consistently with the scheme and purpose of the act are not abrogated or displaced (Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 446, 447, 51 L. ed. 553, 561, 562, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075); that this provision is not intended to nullify other parts of the act, or to defeat rights or remedies given by earlier sections, but to preserve all existing rights not inconsistent with those which the act creates (Pennsylvania R. Co. v. Puritan Coal Min. Co. 237 U. S. 121, 129, 59 L. ed. | for a period of four years, during which 867, 872, 35 Sup. Ct. Rep. 484); that the the conditions were normal, the carrier had act does not supersede the jurisdiction of failed upon reasonable demand to supply to state courts in any case, new or old, where a shipper in interstate commerce a sufficient the decision does not involve the deter- number of cars to transport the output of mination of matters calling for the exercise the latter's coal mine. Assuming that the of the administrative power and discretion conditions were normal and the demand of the Interstate Commerce Commission, or reasonable, it was the duty of the carrier relate to a subject as to which the juris- to have furnished the cars. That duty arose diction of the Federal courts is otherwise from the common law up to the date of the made exclusive (id. 130); that claims for amendatory statute of 1906, known as the damages arising out of the application, in Hepburn Act, and thereafter from a prointerstate commerce, of rules for distribut- vision in that act which, for present puring cars in times of shortage, call for the poses, may be regarded as merely adopting exercise of the administrative authority of the common-law rule. There was evidence the Commission where the rule is assailed tending to show, and the jury found, that as unjustly discriminatory, but where the the conditions in the coal trade were normal assault is not against the rule, but against and the demand for the cars reasonable. its unequal and discriminatory application, Indeed, without objection from the carrier, no administrative question is presented and the court said when charging the jury: the claim may be prosecuted in either a "There is no testimony disputing the claim Federal or a state court without any pre- of the plaintiff that these were normal cedent action by the Commission (id. 131, times." The carrier insisted and the jury 132); and that, if no administrative ques- found that the carrier had a generally tion be involved, as well may be the case, ample car supply for the needs of the coal a claim for damages for failing upon reason- traffic under normal conditions, and the able request to furnish to a shipper in inter- jury further found that the failure to furstate commerce a sufficient number of cars nish the cars demanded was without justifito satisfy his needs may be enforced in able excuse. Thus far it is apparent that either a Federal or a state court without no administrative question was involved,any preliminary finding by the Commission, nothing which the act intends shall be and this whether the carrier's default was a passed upon by the Commission either to violation of its common-law duty existing the exclusion of the courts or as a necesprior to the Hepburn Act of 1906, or of the sary condition to judicial action. duty prescribed by that act 1 (id. 132-135; Eastern R. Co. v. Littlefield, 237 U. S. 140, 143, 59 L. ed. 878, 882, 35 Sup. Ct. Rep. 489; Illinois C. R. Co. v. Mulberry Hill Coal Co. 238 U. S. 275, 283, 59 L. ed. 1306, 1310, 35 Sup. Ct. Rep. 760; Pennsylvania R. Co. v. Clark Bros. Coal Min. Co. 238 U. S. 456, 472, 59 L. ed. 1406, 1413, 35 Sup. Ct. Rep. 896). But there was testimony tending to show that the carrier was applying or following a rule for allotting cars which did not entitle the coal company to receive as many cars as it needed and requested, and because of this it is contended that the reasonableness of this rule was in issue and was an administrative question which the act intends that the Commission shall solve. We Applying these rulings to the case in cannot accede to the contention. The conhand, we are of opinion that a state court ditions in the coal trade being normal, as could entertain the action consistently with just shown, the number of cars to which the the Interstate Commerce Act. Not only coal company was entitled was to be measdoes the provision in § 22 make strongly ured by its reasonable requests based upon for this conclusion, but a survey of the its actual needs. It is only in times of car scheme of the act and of what it is intended shortage resulting from unusual demands to accomplish discloses no real support for or other abnormal conditions, not reasonthe opposing view. With the charge of un-ably to have been foreseen, that car distribujust discrimination eliminated, the ground tion rules originating with the carrier can upon which a recovery was sought was that be regarded as qualifying or affecting the 1 "Sec. 1.. and the term 'trans- right of a shipper to demand and receive portation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, .; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon 'reasonable request therefor, chap. 3591, 34 Stat. at L. 584, Comp. Stat. 1913, § 8563. cars commensurate in number with his needs. Pennsylvania R. Co. v. Puritan Coal Min. Co. 237 U. S. 121, 133, 59 L. ed. 867, 873, 35 Sup. Ct. Rep. 484. Such a rule being inapplicable in the conditions existing at the time, the rule mentioned in the testimony could not be a factor in the decision of the case, and whether in a time of unforeseen car shortage it would be rea- or to mitigate the carrier's default in that sonable or otherwise was not then material. | regard. Upon the trial carrier offered to prove by a witness then under examination "that during all of the period of this action the defendant had in effect through routes and joint rates to points outside the state of Pennsylvania on the lines of other common carriers; that it was obliged to permit cars loaded by its shippers with bituminous coal consigned to such points outside the state of Pennsylvania to go through to destination, even when on the lines of other railroad companies; that, as a result of doing this, it had continuously throughout the period of this action a large number of cars off its own lines and on the lines of other common carriers, which cars would otherwise have been available for shippers of coal on the railroad lines of the defendant, and these cars, if not on other railroad lines, would have increased the equipment available for distribution to the plaintiff's mine and would consequently have diminished the damage which plaintiff claims to have sustained by reason of the fact that it did not receive more cars than it did receive." Judgment affirmed. (242 U. S. 89) PENNSYLVANIA RAILROAD COMPANY V. W. F. JACOBY & COMPANY. APREFUSING conclusion is irresistible from the evidence COMMERCE 97-TRIAL 260(5) PEAL REVERSIBLE ERROR REQUESTED INSTRUCTION-DAMAGES. The refusal, in an action upon an award to shippers made by the Interstate Commerce Commission upon a finding of ilcoal cars, of a requested instruction to the legal discrimination in the distribution of effect that there could be no recovery if the jury should find that the award was based upon the ratio which the cars furnished by the carrier to favored shippers bore to the latter's mine ratings, as shown by certain percentage tables in evidence before the Commission, is reversible error where the that the Commission may have used such percentages in reaching the amount of damages, and thus have based its award on the mistaken theory that the complaining shippers were entitled to receive cars equal But on the coal company's objection the in ratio to those illegally and preferentially evidence was excluded. We think the rul- given to the favored shippers. And such reing was right. The offer did not point to in the main charge on the question of damfusal was not cured by general observations any unusual or abnormal condition, not ages, however correct they may have been. reasonably to have been foreseen, but, on [Ed. Note.-For other cases, see Commerce, the contrary, to a situation which was de- Cent. Dig. § 147; Dec. Dig. 97; Trial, Cent. scribed as continuous throughout the four-Dig. § 655; Dec. Dig. 260(5).] year period to which the action relates. It did not indicate that this condition was even peculiar to that period, or was caused by an extraordinary volume of coal traffic or an unusual detention of cars on other lines of railroad, or that it was other than a normal incident of the coal transportation in which the carrier was engaged. Without doubt the cars of this carrier when loaded with coal often went forward to destinations on the lines of other carriers. It is common knowledge that coal transportation has been conducted quite generally in this way for many years. Besides, a carrier extensively engaged in such transportation from mines along its lines, as this one was, naturally would expect to have a considerable number of cars on other lines in the [No. 22.] Argued October 20, 1915. Reargued October 23 and 24, 1916. Decided December 4, 1916. 0% N A CERTIFICATE from, and WRIT OF CERTIORARI to, the United States Circuit Court of Appeals for the Third Circuit, bringing up for review a cause pending in that court on writ of error to a judgment of the District Court for the Eastern District of Pennsylvania, enforcing an award of damages made by the Interstate Commerce Commission because of discrimination in the distribution of coal cars. Judgment of District Court reversed and case remanded to that court for a new trial. The facts are stated in the opinion. Messrs. Francis I. Gowen, John G. the Pennsylvania Railroad Company. Johnson, and Frederic D. McKenney for Mr. William A. Glasgow, Jr., for W. F. Jacoby & Company. ordinary course of business. Although possibly having a bearing upon the adequacy of the supply of cars provided by the carrier for the coal business as a whole,-a matter not within the contemplation of the offer,it is certain that what was proposed to be proved had no tendency to show that the carrier had supplied to the coal company the number of cars to which it was entitled, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 37 S.C.-4 Mr. Justice Day delivered the opinion of the court: Jacoby & Company, hereinafter called the plaintiffs, owned a coal mine known as Falcon No. 2 in the Clearfield district served |