with the carrier.'"'103 This decision has been followed by the Commission in awarding reparation for several years.

And reparation may be ordered for an unreasonable charge although no tariff is provided therefor.104

Damages may be awarded "where a carrier collects a greater sum on an intermediate shipment than is fixed by its published tariffs. 105

"Damages" and "reparation" have been used interchangeably in the reports of the Commission, although in the later volumes the word damages is generally adopted.

§ 256. Awards of Damages for Unlawful Discrimination.— Sections 2106 and 3107 of the Act prohibit unjust discrimination and undue or unreasonable preference. When these sections are violated the transgressing carrier is liable to the "person or persons injured thereby for the full amount of damages sustained in consequence of any such violation.'

The jurisdiction of the Commission to make an award of damages in discrimination cases was at one time denied in an opinion by a bare majority of the commissioners,109 but the courts having decided otherwise, the Commission now exercises jurisdiction over claims for such awards.110 That such jurisdiction exists cannot now be doubted.1

103 Mo. Portland Cement Co. v. Director General, 88 I. C. C. 492. In an interesting decision (Adams & Kitchen et al. v. Mellon, Director General et al., 39 Fed. (2d) 80) Woodward, D. J., took a contrary view from that expressed by the Commission in 88 I. C. C. 492.

104 Laning-Harris Coal & Grain Co. v. St. Louis & S. F. R. Co., 15 I. C. C. 37; Wheeler Lumber, Bridge & Supply Co. v. Astoria & C. R. Co., 20 I. C. C. 10.

111

108 Sec. 8 of Act; Sec. 473, post. 109 Joynes v. Pennsylvania R. Co., 17 I. C. C. 361.

110 Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 23 I. C. C. 186. 111 Dissenting Opinion of Commissioner Lane in Joynes v. Pennsylvania R. Co., 17 I. C. C. 361, et seq.; Morrisdale Coal Co. v. Pennsylvania R. Co., 176 Fed. 748; Morrisdale Coal Co. v. Pennsylvania R. Co., 183 Fed. 929, 106 C. C. A. 269, affirmed, samestyled case, 230 U. S. 304, 57 L. Ed. 1474, 33 Sup. Ct. 938; Baltimore & O. R. Co. v. United States (Pitcairn Case), 215 U. S. 481, 54 L. Ed. 292, 30 Sup. Ct. 164; Robinson v. Baltimore & O. R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 Sup. Ct. 114, affirming

In the Coal Car Supply cases, shippers were damaged by being prevented from selling coal as a result of discrimination against them in furnishing cars. This discrimination was found illegal and the carriers ordered to desist therefrom.112 Subsequently, and after the courts had held that the Commission had jurisdiction so to do, the Commission heard evidence, determined the amount of damages suffered and entered an award therefor in favor of the shippers.113

The jurisdiction is settled, but the difficult question is one of proof. What must be shown to establish the fact of the damage? In the International Coal Mining case,114 damage was claimed because the defendant carrier had rebated part of the published rate to a competitor of the plaintiff. The discrimination resulting from a less charge than that prescribed in a legally-filed tariff, no prior action by the Commission was necessary to give the courts jurisdiction. In the Supreme Court, the shipper contended that it was unnecessary to allege or prove that it had suffered an injury, for the reason that, as a matter of law, it was entitled to recover as damages the same rate per ton on all its shipments as had been paid by any other person, on his tonnage shipped at the same time over the same route. There was "neither allegation nor proof that it (plaintiff) suffered any injury."

same-styled case, 64 W. Va. 406, 63 S. E. 323. Mr. Justice Pitney in his dissenting opinion in Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893, 914, 915, appends a list of cases where the Commission had granted reparation for unlawful charges "because discriminatory, irrespective of whether they were otherwise extortionate," because "in excess of rate afterward voluntarily established by the carrier'' because of "error in routing,'' because " "'rates held unreasonable per sc," "unreasonable because higher than obtainable by another route," and "because of exceeding the sum of the locals." See pages 242 and 243 of opinion.

112 Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 19 I. C. C. 356; Jacoby v. Pennsylvania R. Co., 19 I. C. C. 392; Bulah Coal Co. v. Pennsylvania R. Co., 20 I. C. C. 52, order sustained, Pennsylvania R. Co. v. Interstate Com. Com., 193 Fed. 81; Opinion Com. Ct. No. 31, p. 275.

113 Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 23 I. C. C. 186. See also, Hillsdale Coal & Coke Co. v. Pennsylvania R. Co., 229 Pa. 61, 78 Atl. 28.

114 Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. 893, reversing Pennsylvania R. Co. v. International Coal Mining Co., 173 Fed. 1, 97 C. C. A. 383.

What plaintiff there claimed was its right to receive the same rebate which had been paid its competitor. The pleadings, the evidence and this contention must not be lost sight of in considering the opinion of a majority of the court in denying such contention. Delivering the opinion of the court, Mr. Justice Lamar said:

* *

"Making an illegal undercharge to one shipper did not license the carrier to make a similar undercharge to other shippers. The measure of damages was the pecuniary loss inflicted on the plaintiff as the result of the rebate paid. These damages might be the same as the rebate or less than the rebate, or many times greater than the rebate; but unless they were proved they could not be recovered."

The case was remanded for a new trial, and all that the opinion holds is that a plaintiff's rights are not measured by the benefits another shipper receives, but are measured by the actual damages he suffers, proof of which damages must be made as in other suits therefor.

The Commission held that rates on tobacco for export were discriminatory in violation of the Act, and entered an order requiring the carriers to desist from such discrimination, but made no finding that the rate was unreasonable in violation of Section 1.115 On a supplemental hearing, complainants sought to recover an award of damages. On such hearing, it appeared that the complainants shipped to foreign ports other than those to which the shippers in whose favor the discrimination existed shipped, and no evidence of damages was offered. It was contended that an award should be made of the difference between the rate paid by complainants and that paid by other shippers shipping to points to which complainants made no shipments. The Commission denied reparation, but its opinion should be construed as limited by the facts of the case.116 In a later case involving the same principle, the Commission stated the rule as follows:

"Reparation may properly be awarded when a discriminatory freight rate has been exacted, but it does not necessarily follow that because a rate is found to be unjustly discrimina

115 New Orleans Board of Trade v. Illinois Cent. R. Co., 29 I. C. C. 465.

116 New Orleans Board of Trade v. Illinois Cent. R. Co., 29 I. C. C. 32.

tory and unduly prejudicial, that the complaining parties are the ones who have been damaged through its exaction. ''117

That it may be difficult to prove damages is no reason for denying the right thereto if the damages are reasonably certain and can be proved with reasonable exactitude.118

In awarding general damages, the courts meet with the same difficulty and the rules for fixing other kinds of damages should apply when a shipper is damaged by a rate illegally discriminatory against him. The Meeker case119 is decisive only of the question of the prima facie effect of an order of the Commission. In that case, the Commission had awarded damages both for a violation of Section 1 and of Section 3 of the Act. The carrier being sued presented no testimony, but relied on the claim that the report of the Commission showed that the amount of the award corresponded in one instance to the amount of the rebate and in the other to the amount of the overcharge, and that therefore the Commission had applied an erroneous and inadmissible measure of damages. To this contention, the Supreme Court replied: "The Commission was authorized and required by Section 8 of the Act to regulate commerce to award the full amount of damages sustained, and that, of course, was to be determined from the evidence. If it showed that the damage corresponded to the rebate in one instance and to the overcharge in the other, the claimant was entitled to an award upon that basis. The case of Pennsylvania R. Co. v. International Coal Min. Co., 230 U. S. 184, 57 L. Ed. 1446, 33 Sup. Ct. Rep. 893, is cited as holding otherwise, but it does not do so. There a shipper, without proving that he sustained any damage,

117 Curry & Whyte Co. v. Duluth & I. R. R. Co., 30 I. C. C. 1, 14. See also Becker v. Pere Marquette R. Co., 28 I. C. C. 645, 657.

118 Weinman v. De Palma, 232 U. S. 571, 58 L. Ed. 733, 34 Sup. Ct. 370. 119 Meeker v. Lehigh Valley R. Co., 21 I. C. C. 129, 23 I. C. C. 480, 211 Fed. 785, 128 C. C. A. 311, 236 U. S. 412, 434, 59 L. Ed. 644, 659, 35 Sup. Ct. 328, 337. See also Mills v. Lehigh V. R. Co., 238 U. S. 473, 59

L. Ed. 1414, 35 Sup. Ct. 888; So. Pac. Co. v. Goldfield Consol. Milling & Transportation Co., 220 Fed. 14; Darnell-Taenzer Lumber Co. v. So. Pac. Co., 221 Fed. 890, 137 C. C. A. 460, reversing 190 Fed. 659. As misconstruing the International Coal case, supra, see Lehigh V. R. Co. v. Clark, 207 Fed. 717, 125 C. C. A. 235, reversed in Mills Case, supra; Lehigh V. R. Co. v. American Hay Co., 219 Fed. 539, 135 C. C. A. 307.

sought to recover from a carrier for giving a rebate to another shipper, and this court, referring to Section 8, said (p. 203): "The measure of damages was the pecuniary loss inflicted on the plaintiff as the result of the rebate paid. Those damages might be the same as the rebate, or less than the rebate, or many times greater than the rebate; but unless they were proved, they could not be recovered. Whatever they were they could be recovered. There is nothing in either report of the Commission which is in conflict with what was said in that case. On the contrary, the plain import of the findings is that the amount awarded represents the claimant's actual pecuniary loss; and, in view of the recital that the findings were based upon the evidence adduced, it must be presumed, there being no showing to the contrary, that they were justified by it."

In the case of Mills v. Lehigh Valley R. Co., note, supra, the Commission found that the complainant was entitled to a stated amount "as reparation."120 It was contended that such a finding was not equivalent to a finding that he was damaged. Of this contention, the court said: "What the Commission decided was that the shippers were entitled to reparation; that is, to be made whole,-to be compensated for a loss because of an illegal and unreasonable exaction; and the amount which they stated as the sum to be paid 'as reparation' on the specified shipments was the amount which they found necessary to accomplish the reparation,—to afford the compensation. The statute was not concerned with mere forms of expression, and in view of the decision that a finding of the ultimate fact of the amount of damage is enough to give the order of the Commission effect as prima facie evidence, we think that the trial court did not err in its ruling. The statutory provision merely established a rule of evidence. It leaves every opportunity to the defendant to contest the claim. But when the Commission has found that there was damage to a specified extent, prima facie the damage is shown; and, according to the fair import of its decision, the Commission did find the amount of damage in this case."

A shipper's damages as the authorities now stand are not

120 Naylor & Co. v. Lehigh V. R. Co., 15 I. C. C. 9, 18 I. C. C. 624.