SYLVANIA R. CO. (241 Pa. 536) (Supreme Court of Pennsylvania. June 27, 1913.) resulted here. No ground was stated for the objection to Dr. Kidder's testimony re- MITCHELL COAL & COKE CO. v. PENNgarding the antiseptic solution, so, for reasons already referred to herein, no question is thereby raised. The same thing is true regarding the cross-examination of the witness Estey regarding his telephonic conversation with Dr. Kidder-only a general objection was made while the testimony of Dr. Kidder on the same subject was not objected to at all. [10] There was no error in admitting the reports from the state laboratory on the cultures taken from the throat of Leroy Hyde. These were taken by the respondent between November 14 and 26, 1910, and sent by him, and the reports came back to him. Some, he admitted, were positive. They had the same bearing upon the main issue that the other evidence regarding the previous cases of diphtheria at Tyson had-they added to the sum of the respondent's knowledge another circumstance which a thoughtful juror would consider before deciding the main question. [11] The exception to the cross-examination of Mrs. Hyde is without merit. It was at the house of this witness that Myrtie Newton died. The witness testified to and was being cross-examined about her sickness and her symptoms. Being asked whether she heard Myrtie complain of sore throat, an objection was made; but it was only because the question had already been answered. It cannot be said that it was legal error for a court to allow a question and answer to be repeated in cross-examination. [12, 13] Just before the respondent rested he asked the court to order the state to produce the lungs of Myrtie Newton. These had been present during the trial, but then had been taken away by Dr. Stone, who had been called home. The court declined to make the order, and the respondent excepted. Such matters are ordinarily discretionary, and not subject to review, and here the respondent is not in a position to complain, for he made no application for a continuance or even delay that he might secure the return of Dr. Stone with the organs called for. Willard v. Norcross, 86 Vt. 426, 85 Atl. 904. [14] The respondent seasonably presented 28 requests to charge, and excepted to "the failure and refusal of the court to charge in accordance with respondent's requests," specifying 21 of them by number, "and to the charge as given in respect thereto." No question regarding the charge is thereby presented. In re Bean's Will, 85 Vt. 452, 82 Atl. 734. Judgment that there is no error, and that the respondent takes nothing by his excep tions. Let execution of sentence be done. 1. APPEAL AND ERROR (§ 1018*)-FINDINGS OF REFEREE-EVIDENCE. A finding of the referee in a shipper's action for unlawful discrimination, that moneys paid by the defendant railroad company to favored shippers were unlawful rebates, and not compensation for use of their short line railroads or for service rendered by the shippers, could not be disturbed on appeal when supported by sufficient evidence. Error, Cent. Dig. 88 4006, 4007; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 1018.*] 2. LIMITATION OF ACTIONS (§ 127*) COMMENCEMENT OF ACTION PLEADINGS AMENDMENT. crimination in allowing rebates, plaintiff was In a shipper's action for unlawful disnot entitled to amend its statement of claims so as to claim damages for acts of discrimination which were not charged in the original statement and occurred more than six years before the application to amend was made; the new cause to be set up thereby being barred by limitations. of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § [Ed. Note.-For other cases, see Limitation 127.*] 3. LIMITATION OF ACTIONS (§ 127*) MENCEMENT OF ACTION AMENDMENT. COM PLEADINGS An application to change by amendment a shipper's action for unlawful discrimination at common law, to an action for treble damages under act of June 4, 1883 (P. L. 72), which applies in cases of unlawful discrimination, was properly denied when not made for more than six years after the discrimination complained of was practiced. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*] 4. LIMITATION OF ACTIONS (§ 99*)-TOLLING OF STATUTE - DISCRIMINATION IN FREIGHT RATES. That a railroad company's freight agent has told a shipper that in the future he will be charged the same rates as other shippers, and will be notified of any additional concession made to favored shippers, is not fraudu the statute of limitations against the shipper's lent conduct which will prevent the running of action for subsequent unlawful discrimination in allowing unlawful rebates to other shippers. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § 99.*] 5. CARRIERS (§ 199*)-INTRASTATE SHIPMENTS -DISCRIMINATION IN FREIGHT RATES. A shipper is entitled to recover damages for unlawful discrimination in rates charged the border of the state, though it later sends on shipments consigned to it at a point near them to points outside the state; they being intrastate shipments. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 901-905; Dec. Dig. § 199.*] 6. CARRIERS ($199*)-ACTION FOR DISCRIMINATION IN FREIGHT RATES-DEFENSES. That a shipper voluntarily pays the freight demanded by defendant on certain shipments, knowing that defendant is allowing other shippers unlawful rebates on similar shipments, will not preclude him from recovering damages for the tort, committed by defendant by grant ing such illegal rebates, measured by the rebates allowed to his competitors. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 901-905; Dec. Dig. § 199.*] Appeal from Court of Common Pleas, Philadelphia County. Action by the Mitchell Coal & Coke Company against the Pennsylvania Railroad Company. From judgment for plaintiff, both parties appeal. Affirmed. rates which the plaintiff company, as a shipper of coal and coke, alleges it sustained by reason of the defendant carrier allowing secret rebates or drawbacks on intrastate shipments to other shippers of coal and coke for whom it rendered substantially the same service as was rendered to the plaintiff during the period of action, namely, from April The suit was 1, 1897, to May 1, 1901. brought March 1, 1905. The pleas were not guilty and the statute of limitations. By Trespass to recover damages for unlawful agreement of the parties, the case was referdiscrimination in granting rebates and draw-red to a referee clothed with the powers of a backs to plaintiff's competitors. The case was referred to Theodore F. Jenkins, Esq., as referee, who found for plaintiff, and awarded damages for delay in payment. Upon exceptions to the supplemental report of the referee, Ferguson, J., filed the following opinion: "An order has been filed this day sustaining the fourth exception to the supplemental report of the referee and dismissing all other exceptions. The question involved in the fourth exception is the one of damages awarded for delay in payment. In our opinion such damages cannot be allowed. In this view we think we are sustained by the case of Pierce v. Lehigh Valley Coal Co., 232 Pa. 170, 81 Atl. 142. In the case at bar the amount claimed was $93,000, and the actual damages found to be $20,883.64. The result shows that the officers of the defendant company were justified in resisting the claim. They, therefore, cannot be held at fault in respect to the delay. An additional justification in resisting payment of the amount claimed is found in the fact that the defendant company was by law prohibited from making payment to a shipper of an amount to which it was not legally entitled." Other facts appear in the opinion of the Supreme Court. The referee found for plaintiff for $20,883.64, and judgment was entered for this amount. Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISJJ. KER, Joseph Gilfillan, of Philadelphia, for Mitchell Coal & Coke Company. Francis I. Gowen and John G. Johnson, both of Philadelphia, for Pennsylvania Railroad Company. master in chancery, and after an exhaustive consideration of both facts and law he reported in favor of the plaintiff. Certain exceptions to his report were sustained; but a judgment was entered against the defendant company for the amount of the damages which it was found the plaintiff sustained by reason of the rebates or drawbacks given the favored shippers. Both parties have appealed. [1] The referee found on ample testimony that the moneys paid by the defendant company to the favored shippers were unlawful rebates or drawbacks, and not, as claimed by it, compensation for use of their short line railroads or for services rendered by the shippers. This was a question of fact, and, while the testimony was conflicting, and a different finding might have been justified, the evidence was sufficient to warrant the referee's conclusion, and therefore we would be infringing a settled rule if we reversed the finding of the referee confirmed by the judgment of the court. [2] The plaintiff's application to amend its statement was properly denied. The application was made about nine years after the close of the period of action, and more than five years after the suit was brought. The statement averred two specific charges of discrimination: (a) For the coal and coke shipped from Gallitzin between October, charged and collected from the plaintiff 15 1899, and May, 1901, the defendant company cents per ton more than it charged and collected from the Altoona, the Glen White, and the Millwood Companies; and (b) for the coal and coke shipped from five other collieries of the plaintiff and also from its Gallitzin mine before October, 1899, the defendant company charged and collected 10 cents per ton more than it charged and collected from the Latrobe and Bolivar Companies. In other words, the plaintiff's cause of complaint, as set out in its statement, is founded on the money paid to the Latrobe and Bolivar Companies, except the money paid for the shipments from its Gallitzin mine after October 1, 1899. It was proposed to amend the statement by alleging with respect to the plaintiff's six collieries (excepting Gallitzin after October, 1899) discriminating acts on The action was trespass to recover dam- the part of the defendant and in favor of the ages for unlawful discrimination in freight | Altoona, the Glen White, and Millwood Com MESTREZAT, J. These two appeals are from the same judgment, were argued together, and may be considered and disposed of in one opinion. While the record is voluminous, as suggested by the learned judge of the common pleas, and numerous assignments of error have been filed by both parties, we will consider, as the parties in their printed briefs have done, the questions presented without specific reference to the several assignments. panies, so that the plaintiff's whole claim, | alleges constituted an unlawful and unreaexcepting Gallitzin after 1899, would be bas-sonable discrimination against it as a shiped on rebates paid the three favored com- per of coal and coke over the lines of the panies during the period of action. [3] The plaintiff also asked leave to amend the statement by alleging treble damages under the act of June 4, 1883 (P. L. 72). Both amendments were refused because they averred a new cause of action which was barred by the statute of limitations. The services rendered by the defendant for plaintiff's six collieries (except the Gallitzin before October, 1899) and for the two favored companies, Latrobe and Bolivar, were similar, and the effect of the rebate was to cause damage to the plaintiff to the extent of the rebate. The services of the defendant company to the Gallitzin colliery after October, 1899, were similar to those rendered the three favored companies, Altoona, the Glen White, and the Millwood, and the plaintiff was injured to the extent of the rebates allowed these companies. Each of these four collieries had a short line railroad and a locomotive which conveyed its product from the mine to the defendant company's railroad. The plaintiff's six collieries (except the Gallitzin after October, 1899) had no means of conveying the product from the mine to the defendant's road. The unlawful discrimination for which the plaintiff can recover is between its mines receiving from the defendant services similar to those rendered the favored companies. Here, as is apparent, if the averments of the original statement be true, the services rendered by defendant to Latrobe and Bolivar Companies and the plaintiff's six companies were not similar to those rendered the other three favored companies and the Gallitzin mine of the plaintiff for a short period. The proposed amendment to the statement, therefore, alleges different acts of discrimination by the defendant company, causing the injury, and hence introduces a new cause of action. The Practice Act provides that the declaration in an action of trespass shall consist of a concise statement of the plaintiff's demand as provided in the act of 1806 (4 Smith's Laws, p. 328) which requires that "the whole amount that he, she or they believe is justly due to him, her or them from the defendant" be specified. It will be observed that the statement in the present case declares for single damages in the sum named, and that it contains no averment that the suit was brought under the act of 1883 to recover treble damages. The statement avers the duty of the defendant as a common carrier to treat every shipper alike in fixing freight rates for the transportation of coal and coke under substantially similar circumstances and conditions, the failure to perform such duty during the period of action, sets out the discriminatory acts done by defendant's railroad, and avers that by reason of the premises the plaintiff had been damaged in the aggregate sum of $93,905, payment of which was demanded and refused. An action of trespass at common law is brought to recover compensation for the injuries sustained, and a statutory action is for the penalty imposed for the infringement of the statute. Where, therefore, suit is brought on a statute to recover double or treble damages, we have regarded it as an action for a statutory penalty, and required the cause of action as such to be averred in the statement. Hughes v. Stevens, 36 Pa. 320; Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, 15 Atl. 656; Fairchild v. Dunbar Furnace Co., 128 Pa. 485, 18 Atl. 443, 444; Allen v. Tuscarora Valley Railroad Co., 229 Pa. 97, 78 Atl. 34, 30 L. R. A. (N. S.) 1096, 140 Am. St. Rep. 714. Had the proposed amendment been allowed, the cause of action would have been changed from a suit for single damages for unlawful discrimination to a suit for a penalty imposed by the act of 1883 for the unlawful conduct of the defendant company. The learned court was right in refusing the amendment. [4] We think the court below did not err in limiting the plaintiff's right to recover to six years prior to the date the action was brought. The most that can be said for the testimony introduced by the plaintiff to toll the statute is that Mr. Joyce, the defendant's coal freight agent, promised Mr. Mitchell that the plaintiff company should in the future receive as good treatment and rates as other shippers, and should be notified if there were any additional concessions of any kind made to any shipper. These promises, it appears, were not kept, and preferential rates were given to some of plaintiff's competitors. This was discreditable conduct on the part of the defendant company, and a plain violation of its duty as a common carrier. But it was simply a failure to observe a promise, and not fraudulent conduct, which prevents the running of the statute. As said by the learned trial judge: "No greater duty was imposed by the promise than the law imposed; but the breach was not a fraud or deceit or concealment in the sense contemplated by law, when it is sought to escape the operation of the statute of limitations." [5] The shipments to Greenwich, Pa., were intrastate, and hence were properly included in this action. They were consigned to plaintiff at Greenwich, and there the contract of carriage between the plaintiff and the defendant was fully performed and ended. What disposition the plaintiff made of the shipments at Greenwich, whether it sold them or sent them within or beyond the state, er as between the plaintiff and the defendant | defendant to the favored shippers in the they were intrastate or interstate. transportation of coal and coke for them upon which drawbacks or rebates were paid was a like service, from the same place, upon like conditions, and under substantially similar circumstances, and for the same period of time as the service performed for the plaintiff company in the transportation for that company of coal and coke upon which no drawback or rebate was paid. This finding was confirmed by the learned court below. We have examined with care the voluminous testimony and the authorities cited by the learned referee and by counsel of the parties, and are satisfied that the court and referee reached a correct conclusion. Without taking up and discussing the testimony which was done in the elaborate report of the learned referee, it is sufficient to say that it was ample to sustain his findings on this branch of the case. The learned court below points out in its opinion the facts which defeat the plaintiff company's right to compensation for delay in payment of its claim. We have examined the case with special reference to the several questions raised by all of the assignments filed by both appellants, and have discovered no error which would justify a reversal of the judgment entered by the court below. The judgment is affirmed. [6] The learned court was right in declining to hold, as requested by defendant, that the plaintiff had no cause of action in respect to shipments made after the fall of 1898, because the payments of freight on the shipments were made voluntarily by the plaintiff unaccompanied by any protest against the right of the defendant to charge and collect the same, with knowledge of the payments made to the Altoona and Glen White Companies. The plaintiff admits its president at one time heard that the Altoona and Glen White Companies were receiving from defendant compensation for the use of their locomotives in conveying coal from their mines to the defendant's road, but denies it knew that the defendant was paying those companies illegal rebates or drawbacks on the coal shipped by them. It is difficult to understand how the defendant can now allege that the plaintiff company had knowledge that unlawful rebates were being paid to the favored shippers at the time it paid the freight on its shipments. The defendant has consistently denied from the time the payments were made and continues to deny that they were unlawful rebates, and asserts they were made for services rendered in relief of defendant, and were therefore lawful. Had the plaintiff company sought information on the subject from the defendant itself, it would have met with a denial that such payments were discriminatory or illegal rebates. It is therefore not apparent SONMAN SHAFT COAL CO. ▼. PENNSYLhow the defendant can successfully allege that the plaintiff had knowledge of the payment of the rebates and at the same time deny that such payments were made. Be this as it may, it is sufficient to say that this action was not brought to recover back moneys paid by mistake or otherwise to the defendant, but to recover damages for the breach of the defendant's duty as a common carrier in unlawfully discriminating against the plaintiff by payment of rebates to competing shippers. In such case the doctrine of voluntary payments can have no application. Borda v. Railroad Co., 141 Pa. 484, 493, 21 Atl. 665. In this case the action was to recover damages for alleged illegal discrimination on coal shipments by payment of rebates, and the counsel for the carrier company set up the defense of voluntary payments, but it was not sustained; the referee whose report was confirmed by the common pleas and by this court saying: "The simple answer (to the contention of the carrier), however, is that this is not an action to recover back the freights paid, but is an action of tort, to recover damages for a breach of the defendant's duty to the plaintiffs." The learned referee has found after a care ful and exhaustive consideration of all the testimony that the service rendered by the VANIA R. CO. (241 Pa. 487) (Supreme Court of Pennsylvania. June 27, 1913.) 1. CARRIERS ( 44*)-DISCRIMINATION IN CAR SUPPLY-LIABILITY OF CARRIER. Where a carrier refuses to supply a shipper with cars, though it has a surplus stored on its tracks and always has an adequate supply under normal conditions and no abnormal conditions exist, and is at the same time guilty of gross discrimination in favor of other shippers, it is liable for the resulting damages. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. § 44.*1 2. CARRIERS (§ 45*)-DISCRIMINATION IN CAB SUPPLY-EXCLUSION OF EVIDENCE. from discrimination in failing to supply him Where, in a shipper's action for damages with sufficient cars, the evidence showed that defendant had an adequate supply of cars on hand for special distribution under an unfair system but refused to allot plaintiff its share, evidence of defendant's equipment on foreign lines was properly excluded as immaterial. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. § 45.*] 3. APPEAL AND ERROR (§ 1001*)-FINDINGSEVIDENCE. The jury's finding of fact cannot be disturbed on appeal when sustained by the evidence. Error, Cent. Dig. §§ 3922, 3928-3934; Dec. [Ed. Note.-For other cases, see Appeal and Dig. & 1001.*] 4. COURTS (8 489*)-JURISDICTION-STATE AND FEDERAL-CARRIERS. in hand. The decision there is based on a square conflict between the North Carolina statute and the act of Congress regulating interstate commerce. The question of the common-law duty of furnishing an adequate car supply is not even referred to in the Where a duty has been imposed upon a carrier by the common law and statutes of a state, as well as by a federal statute, except as other reasons may be shown, there is concurrent jurisdiction in the state courts. [Ed. Note.-For other cases, see Courts, decision. Cent. Dig. $1324-1330, 1333-1341, 18721374; Dec. Dig. § 489.*] 5. Courts (§ 489*)—Jurisdiction—State anD FEDERAL-DISCRIMINATION OF CARRIERS. the rate question rather than with the car That case, moreover, deals with Supply question, and indeed in the matter of rates the Interstate Commerce Act seems to cover about all that can be said in the matter of regulating interstate commerce as to rates. The state court had jurisdiction of an action for breach of a carrier's common-law duty to furnish sufficient coal cars, as against an All of the cases in fact in the objection that the carrier was engaged in interstate commerce and that the matter com- United States court, in which the jurisdicplained of was the subject of federal legislation of the state courts has been denied, tion and subject only to the control of the Interstate Commerce Commission and the federal courts under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]); the police power of the state extending to compelling common carriers to furnish adequate service, and the exercise of such power only indirectly affect ing interstate commerce. were based on a clear case of conflict between the provisions of a state statute and the Interstate Commerce Act (Act Feb. 24, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, P. 3154]). Where such conflict does not exist, the express language of the twenty-second section of the act to regulate commerce, [Ed. Note.-For other cases, see Courts, which reads as follows: 'Nothing in this act Cent. Dig. §§ 1324-1330, 1333-1341, 1372-contained shall in any way abridge or alter 1374; Dec. Dig. § 489.*] the remedies now existing at common law or Appeal from Court of Common Pleas, by statute but the provisions of this act in Clearfield County. Action by the Sonman Shaft Coal Company against the Pennsylvania Railroad Company. From judgment for plaintiff, defendant appeals. Affirmed. The following is the opinion of Smith, P. J., in the court below, on defendant's motion for a new trial and for judgment non obstante veredicto: "The first position taken by the learned counsel for defendant is that this state court does not have jurisdiction to entertain the action. The plaintiff in this case, by its declaration, set out two causes of action, namely: First, discrimination proper, and, second, insufficient and inadequate car supply in violation of the common-law duty of a common carrier. The jurisdiction of this court in cases of discrimination has been affirmed by our Supreme Court in Puritan Coal Mining Co. v. Pennsylvania R. Co., 237 Pa. 420, 85 Atl. 426, as also in Walnut Coal Co. v. Pennsylvania R. Co., 237 Pa. 410, 85 Atl. 440. The recovery in the case in hand was based on the inadequacy of car supply only. While there was distinct proof of discrimination practiced by the defendant company, yet the data on which a recovery could be based was not furnished. The question in this case as to jurisdiction, therefore, is as to whether the federal tribunals have exclusive jurisdiction over a matter of common-law duty. The learned counsel for defendant relies on the authority of Southern Railway Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257, which was a case involving a North Carolina statute, to sustain its position that the state court in this case did not have jurisdiction of this cause. We fail to see how that case is applicable to the case addition to such remedies'-would seem to apply. In the case in hand, involving as it does the question of adequacy of car supply, a careful reading of the Interstate Commerce Act does not disclose to us any pos sible conflict of authority. The federal Supreme Court, moreover, had distinctly recognized the right of redress in other jurisdictions, in the language of Mr. Justice White in the Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426-446, 27 Sup. Ct. 350, 358 (51 L. Ed. 553, 9 Ann. Cas. 1075), "The manifest purpose of when he said: the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative, when other appropriate common-law or statutory remedies exist for the redress of the particular grievance or wrong dealt with in the act.' Again, the United States Supreme Court, in Galveston, H. & S. A. R. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516, upheld the jurisdiction of the state court for damage caused by failure to deliver goods which was recognized as a common-law breach of duty and not within the provisions of the Interstate Commerce Act. In that case the court said, inter alia, Jurisdiction is not defeated by implication.' The recovery in the case in hand was limited by the court to intrastate shipments, including of course cars sold f. o. b. at the mines. It is hard to see how the question of exclusive jurisdiction in the United States court could be made to apply to such shipments within the state, and certainly no authority cited by the learned counsel takes such a position. "Without further elaboration of argument, we think it is clear that the most recent |