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in attendance upon court and during a rea- , N. J. L. 366, decided in the New Jersey sonable time in coming and going.

supreme court nearly one hundred years ago, [Ed. Note.-- For other cases, see Process, Cent. upon the following reasoning: "Courts of Dig. $$ 148, 149; Dec. Dig. 119.]

justice ought everywhere to be open, acces[No. 105.)

sible, free from interruption, and to cast

a perfect protection around every man who Argued and submitted November 15, 1916. in every claim of right which he exhibits,

necessarily approaches them. The citizen Decided December 4, 1916.

and every defense which he is obliged to

make, should be permitted to approach N ERROR to the District Court of the them, not only without subjecting himself trict of Illinois to review an order quashing tation or hindrance. He should also be a summons because served on a nonresident enabled to procure, without difficulty, the while he was returning from the court room attendance of all such persons as are necesafter testifying in a case in which he was a

sary to manifest his rights. Now, this great party. Affirmed.

object in the administration of justice would The facts are stated in the opinion.

in a variety of ways be obstructed if parties Mr. Robert C. Fergus for plaintiff in and witnesses were liable to be served with Mr. Clarence S. Darrow for defendant it is often matter of great importance to

process while actually attending the court. in error.

the citizen, to prevent the institution and

prosecution of a suit in any court, at a Mr. Justice Pitney delivered the opinion distance from his home and his means of of the court:

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 jurisdic. ing states, to whom the power which the tion was invoked on the ground that plain: court possesses of compelling attendance tiff was a citizen of Illinois and a resident

cannot reach." of the northern district, and defendant was

The state courts, with few exceptions, a citizen and resident of Colorado. Ram- have followed this rule, applying it to plainsay pleaded in abatement that he was a

tiffs as well as defendants, and to witnesses resident of the state of Colorado and was attending voluntarily as well as those unserved with process while in attendance

der subpæna. Illustrative cases may be upon the district court as a witness in a

cited : Richardson v. Smith, 74 N. J. L. case wherein he was plaintiff and one An. 111, 114, 65 Atl. 162; Matthews v. Tufts, derson defendant, and that the process was

87 N. Y. 568; Mitchell v. Huron Circuit served while he was returning from the Judge, 53 Mich. 541, 19 N. W. 176; An. courtroom after testifying. Upon plain. drews v. Lembeck, 46 Ohio St. 38, 15 Am. tiff's demurrer this plea was sustained, and, St. Rep. 547, 18 N. E. 483; Wilson v. Don. plaintiff electing to stand upon his demur: aldson, 117 Ind. 356, 3 L.R.A. 266, 10 Am. rer, it was ordered that the writ be quashed St: Rep. 48, 20 N. E. 250; First Nat. Bank and the defendant go without day. The

v. Ames, 39 Minn. 179, 39 N. W. 308; Lin. present writ of error was sued out under ton v. Cooper, 54 Neb. 438, 69 Am. St. Rep. § 238, Judicial Code (36 Stat. at L. 1157, 727, 74 N. W. 842; Bolz v. Crone, 64 Kan. chap. 231, Comp. Stat. 1913, $ 1215), the 570, 67 Pac. 1108; Murray v. Wilcox, 122 jurisdictional question being certified. That a direct writ of error lies in such Iowa, 188, 64 L.R.A. 534, 101 Am. St. Rep.

263, 97 N. W. 1087; Martin v. Bacon, 76 a case is well settled. G. & C. Merriam Co. Ark. 158, 113 Am. St. Rep. 81, 88 S. W. v. Saalfield, 241 U. S. 22, 26, 60 L. ed.

863, 6 Ann. Cas. 336.. 868, 36 Sup. Ct. Rep. 477.

There are a few cases to the contrary, of In our opinion, the decision of the district which Bishop v. Vose, 27 Conn. 1, 11; Baldcourt was correct. The true rule, well founded in reason and sustained by the win v. Emerson, 16 R. I. 304, 27 Am. St. greater weight of authority, is that suitors, Rep. 741, 15 Atl. 83; Lewis v. Miller, 115 as well as witnesses, coming from another | Ky. 623, 74 S. W. 691, are instances. state or jurisdiction, are exempt from the

In Blight v. Fisher (1809) Pet. C. C. 41, service of civil process while in attendance Fed. Cas. No. 1,542, Mr. Justice Washing. upon court, and during a reasonable time ton, sitting at circuit, held that the priviin coming and going. A leading authority lege of a suitor or witness extended only in the state courts is Halsey v. Stewart, 4' 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 FUBNISI

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 Cas. No. 10,739, District Judge Kane, with damages arising out of a carrier's failure

upon reasonable demand and under normal the concurrence, as he states, of Chief Jus conditions to supply to a shipper in intertice Taney and Mr. Justice Grier, over- state commerce a sufficient number of cars to ruled Blight v. Fisher, and sustained the transport the output of the latter's coal privilege in favor of a nonresident admitted mine may be entertained by a state court to make defense in a pending suit, and consistently with the provisions of the Act served with summons while attending court of February 4, 1887 (24 Stat. at L. 379, for that purpose, the court declaring: "The chap. 104, Comp. Stat. 1913, § 8563), $$ 8, privilege which is asserted here is the privi. aggrieved by violations of that act, and § 22,

9, prescribing modes of redress to shippers lege of the court, rather than of the defend. preserving existing rights and remedies, alant. It is founded in the necessities of though the carrier may have been applying the judicial administration, which would or following a rule for allotting cars which be often embarrassed, and sometimes inter- did not entitle the shipper to receive as rupted, if the suitor might be vexed with many cars

as it needed and requested, process while attending upon the court for since, the conditions in the coal trade being the protection of his cights, or the witness normal, and the demand for the cars being while attending to testify. Witnesses would there was, therefore, no administrative ques

reasonable, the rule was inapplicable, and be chary of coming within our jurisdiction, tion for the Interstate Commerce Commisand would be exposed to dangerous influ- sion to solve. ences, if they might be punished with a law- TEd. Note.--For other cases, see Commerce, suit for displeasing parties by their testi. Dec. Dig. Cw89.) mony; and even parties in interest, whether CARRIERS Fww.45—EVIDENCE-RELEVANCY

CARRIER's FAILURE TO FURNISH CARS on the record or not, might be deterred from

EQUIPMENT ON OTHER LINES. the rightfully fearless assertion of a claim

3. Evidence of the number of the car. or the rightfully fearless assertion of a ricris coal cars on other railway lines is imdefense, if they were liable to be visited on material in an action to recover damages the instant with writs from the defeated arising out of the carrier's failure, upon party.” Since this decision, the Federal reasonable demand, to supply to a shipper circuit and district courts have consistently in interstate commerce a sufficient number sustained the privilege. Juneau Bank v.

of cars to transport the output of the lat. MeSpedan, 5 Biss. 64, Fed. Cas. No. 7,582; ter's coal mine, where there is no claim of Brooks v. Farwell, 2 McCrary, 220, 4 Fed. coal trade were other than normal.

a car shortage, or that conditions in the 166; Atchison v. Morris, 11 Biss. 191, 11 [Ed. Note.-For

see Carriers, Fed. 582; Nichols v. Horton, 4 McCrary, Cent. Dig. $$ 120, 123-128; Dec. Dig. 45.) 567, 14 Fed. 327; Wilson Sewing Mach. Co. v. Wilson, 23 Blatchf. 51, 22 Fed. 803;

[No. 10.) Small v. Montgomery, 23 Fed. 707; Kinne v. Lant, 68 Fed. 436; Hale v. Wharton, 73 Fed. 739; Morrow v. U. H. Dudley & Co. Argued May 14, 1915. Reargued October 25,

1915. Decided December 4, 1916. 144 Fed. 441; Skinner & M. Co. v. Waite, 155 Fed. 828; Peet v. Fowler, 170 Fed. 618; Roschynialski v. Hale, 201 Fed. 1017. N ERROR to the Supreme Court of the Judgment affirmed.

ment which affirmed a judgment of the (242 U. S. 120)

Court of Common Pleas of Clearfield County, PENNSYLVANIA RAILROAD COMPANY,

in that state, in favor of a shipper in an Piff. in Err.,

action against a railway company for damSONMAN SHAFT COAL COMPANY.

ages caused by the failure of the latter to

furnish cars. Affirmed. COMMERCE 40(1) "INTERSTATE Cor. MERCE"--WHAT IS-SALE OF COAL F. 0.

See same case below, 241 Pa. 487, 88 Atl. B. MINES.

other

cases,

I

v.

746. 1. The sale and delivery of coal f. o. b. The facts are stated in the opinion. cars at the mine for transportation to pur. Messrs. Francis I. Gowen, John G. chasers in other states is interstate com

Johnson, and Frederic D. McKenney for (Ed. Note.-For other cases, see Commerce, plaintiff in error. Cent. Dig. $$ 29, 30; Dec. Dig. Om 10(1).

Messrs. A. M. Liveright and A. L. Cole For cther definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) for defendant in error.

merce.

For otbur cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Mr. Justice Van Devanter delivered the the state court to exercise a jurisdiction opinion of the court:

which it did not possess. The coal company brought this action to In the courts below the railroad company recover damages from the railroad company contended that, in so far as the commerce upon two grounds: first, that for a period involved was interstate, the action could not of four years, beginning April 1, 1903, the be entertained by a state court consistently railroad company had failed to supply the with the Interstate Commerce Act, chap. coal company with a sufficient number of 104, 24 Stat. at L. 379, Comp. Stat. 1913, cars to meet the needs of the latter's coal $ 8563, and that contention is renewed here. mine; and, second, that during the same It proceeds upon the theory, first, that the period the railroad company, in furnishing coal company was without any right to recars to the several mines in that district, dress in respect of its interstate business bad discriminated unjustly against the coal unless the failure to supply it with the company and in favor of some of its como requisite cars was a violation of some propetitors. The second ground was eliminat- vision of that act; second, that $8 8 and 9 ed by the coal company at the trial, and does of the act prescribe the only modes of obnot require further notice. The action taining redress for violations of its provi. was begun in a state court and resulted in sions; and, third, that an action for dain

judgment for the coal company for ages in a state court is not among the modes $145,830.25, which the supreme court of the prescribed. state affirmed. 241 Pa. 487, 88 Atl. 746. It is true that $$ 8 and 9 deal with the

The questions presented by the several redress of injuries resulting from violaassignments of error are: (1) What was tions of the act, and give the person injured the nature of the commerce involved? (2) a right either to make complaint to the If the commerce was interstate, was the Interstate Commerce Commission

or to action cognizable in a state court ? (3) bring an action for damages in a Federal Was prejudicial error committed in exclud-court, but not to do both. If the act said ing evidence presently to be mentioned ? nothing more on the subject it well may

The coal company sold its coal f. o. b. cars be that no action for damages resulting at the mine, and when the cars were loaded, from a violation of the act could be enthe coal was promptly forwarded to the tertained by a state court. But the act purchasers at points within and without the shows that as 8 and 9 do not completely state,-largely to points in other states. express the will of Congress as respects the This was well understood by both com injuries for which redress may be had or panies,—by the coal company when it asked the modes in which it may be obtained, for for cars and by the railroad company when § 22 contains this important provision: it supplied them. Cars were not requested “Nothing in this act contained shall in any or furnished merely to be used in holding way abridge or alter the remedies now exor storing coal, but always to be employed isting at common law or by statute, but the in its immediate transportation. While provisions of this act are in addition to furnishing some cars for this service, the such remedies.” The three sections, if railroad company failed to furnish as many broadly construed, are not altogether har. as the coal company needed and requested. monious, and yet it evidently is intended It is plain that supplying the requisite cars that all shall be operative. Only by reading was an essential step in the intended move them together and in connection with the ment of the coal and a part of the com- act as a whole can the real purpose of each merce-whcther interstate or intrastate-to be seen. They often have been considered which that movement belonged. It was ex- and what they mean has become pretty well pressly so held in Pennsylvania R. Co. v. settled. Thu's we have held that a manifest Clark Bros. Coal Min. Co. 238 U. S. 456, purpose of the provision in § 22 is to make 465-468, 59 L. ed. 1406, 1410–1412, 35 Sup. it plain that such "appropriate common law Ct. Rep. 896. We there said of the sale and statutory remedies” as can be enforced and delivery of coal f. o. b. at the mine for consistently with the scheme and purpose transportation to purchasers in other of the act are not abrogated or displaced states: "The movement thus initiated is (Texas & P. R. Co. v. Abilene Cotton Oil an interstate movement and the facilities Co. 204 U. S. 426, 446, 447, 51 L. ed. 553, required are facilities of interstate com- 561, 562, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. merce." Here the state court ruled that, 1075); that this provision is not intended as the coal was sold f. o. b. at the mine, to nullify other parts of the act, or to the commerce involved was intrastate, even defeat rights or remedies given by earlier though the coal was going to purchasers sections, but to preserve all existing rights outside the state. This was error, but it not inconsistent with those which the act' plainly was without prejudice unless it led 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; But there was testimony tending to show Eastern R. Co. v. Littlefield, 237 U. S. 140, that the carrier was applying or following 143, 59 L. ed. 878, 882, 35 Sup. Ct. Rep. a rule for allotting cars which did not en489; Illinois C. R. Co. v. Mulberry Hill title the coal company to receive as many Coal Co. 238 U. S. 275, 283, 59 L. ed. 1306, cars as it needed and requested, and because 1310, 35 Sup. Ct. Rep. 760; Pennsylvania R. of this it is contended that the reasonableCo. v. Clark Bros. Coal Min. Co. 238 U. S. ness of this rule was in issue and was an ad456, 472, 59 L. ed. 1406, 1413, 35 Sup. Ct. ministrative question which the act inRep. 896).

tends 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 unably 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 ve

commensurate in number with his hicles and all instrumentalities and facil.needs. Pennsylvania R. Co. v. Puritan Coal ities of shipment or carriage, .; and Min. Co. 237 U. S. 121, 133, 59 L. ed. 867, it shall be the duty of every carrier sub-873, 35 Sup. Ct. Rep. 484. Such a rule beject to the provisions of this act to pro-ing inapplicable in the conditions existing vide and furnish such transportation upon at the time, the rule mentioned in the 'reasonable request therefor,

3591, 34 Stat. at L. 584, Comp. Stat. 1913, testimony could not be a factor in the de$ 8563.

cision of the case, and whether in a time of

cars

V.

unforeseen car shortage it would be rea- or to mitigate the carrier's default in that sonable or otherwise was not then material. I regard.

Upon the trial carrier offered to prove Judgment affirmed. by a witness then under examination "that during all of the period of this action the defendant had in effect through

(242 U. S. 89) routes and joint rates to points outside the PENNSYLVANIA RAILROAD COMPANY state of Pennsylvania on the lines of other common carriers; that it was obliged to

W. F. JACOBY & COMPANY. permit cars loaded by its shippers with

COMMERCE 97—TRIAL 260(5) Ap. bituminous coal consigned to such points

PEAL-REVERSIBLE ERROR REFUSING outside the state of Pennsylvania to go REQUESTED INSTRUCTION-DAMAGES. through to destination, even when on the The refusal, in an action upon an lines of other railroad companies; that, as award to shippers made by the Interstate & result of doing this, it had continuously Commerce Commission upon a finding of ilthroughout the period of this action a large coal cars, of a requested instruction to the

legal discrimination in the distribution of number of cars off its own lines and on the effect that there could be no recovery if the lines of other common carriers, which cars jury should find that the award was based would otherwise have been available for upon the ratio which the cars furnished by shippers of coal on the railroad lines of the carrier to favored shippers bore to the the defendant, and these cars, if not on latter's mine ratings, as shown by certain other railroad lines, would have increased percentage tables in evidence before the the equipment available for distribution to Commission, is reversible error where the the plaintiff's mine and would consequently that the Commission may have used such

conclusion is irresistible from the evidence have diminished the damage which plain percentages in reaching the amount of damtiff claims to have sustained by reason of ages, and thus have based its award on the the fact that it did not receive more cars mistaken theory that the complaining shipthan it did receive."

pers 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 dam

fusal 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. 266(5).] year period to which the action relates. It

(No. 22.] did not indicate that this condition was even peculiar to that period, or was caused by Argued October 20, 1915. Reargued October

23 and 24, 1916. Decided December 4, 1916. an extraordinary volume of coal traffic or an unusual detention of cars on other lines

A CERTIFICATE from, and WRIT of railroad, or that it was other than a 00

OF CERTIORARI to, the United States normal incident of the coal transportation Circuit Court of Appeals for the Third Cir. in which the carrier was engaged. Without cuit, bringing up for review a cause penddoubt the cars of this carrier when loaded ing in that court on writ of error to a judg. with coal often went forward to destinations ment of the District Court for the Eastern on the lines of other carriers. It is com- District of Pennsylvania, enforcing an mon knowledge that coal transportation award of damages made by the Interstate has been conducted quite generally in this Commerce Commission because of discrimway for many years. Besides, à carrier ination in the distribution of coal cars.

istrict Court reversed and extensively engaged in such transportation Judgment of from mines along its lines, as this one was, case remanded to that court for a new trial.

The facts are stated in the opinion. naturally would expect to have a considera

Messrs. Francis I. Gowen, John G. ble number of cars on other lines in the ordinary course of business. Although pos. the Pennsylvania Railroad Company.

Johnson, and Frederic D. McKenney for sibly having a bearing upon the adequacy

Mr. William A. Glasgow, Jr., for W. of the supply of cars provided by the carrier F. Jacoby & Company. for the ccal business as a whole,-a matter not within the contemplation of the offer,- Mr. Justice Day delivered the opinion of it is certain that what was proposed to be the court: proved had no tendency to show that the Jacoby & Company, hereinafter called the carrier had supplied to the coal company plaintiffs, owned a coal mine known as the number of cars to which it was entitled,'Falcon No. 2 in the Clearfield district served

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 37 S.C.-4

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