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BY

EST.

(39 Sup.Ct.) (250 U. S. 368)

to October 1, 1904; in No. 294 from October PENNSYLVANIA R. CO. V. MINDS. 1, 1904 to June 30, 1907. Verdicts and judgSAME v. MINDS et al.

ments were recovered in both cases against

the company. The judgments were affirmed (Argued April 23, 1919. Decided June 9, 1919.) in the Circuit Court of Appeals. 244 Fed.

53, 156 C. C. A. 481. Nos. 293 and 294.

During the first period James H. Minds 1. COMMERCE Cw94 – DISCRIMINATION - AC- and William J. Matz, trading as Bulah Coal

TIONS ON COMMISSION'S AWARDS – AMEND- Company, operated the mine alleged to have ING DECLARATIONS.

been subjected to unlawful discrimination. Allowing in actions, tried together, on rep. During the second period a. partnership, aration awards by the Interstate Commerce composed of Minds and the widow of Matz, Commission, one in favor of a partnership, the trading under the same name, operated the other in favor of its successor, but both against mine. Two proceedings for reparation were the same carrier, an amendment to correct mistake in the declarations, transposing the awards, Commission. In the first an order of rep

brought before the Interstate Commerce held in court's discretion. 2. COMMERCE 97 DISCRIMINATION

aration in the sum of $18,591.48 was awarded,

with interest thereon at the rate of 6 per CARBIER — AWARD BY COMMISSION - INTER

cent, per annum from June 28, 1907. For Shippers being, under Act to Regulate Com- the second period an award was made in the merce, $ 8 (Comp. St. § 8572), entitled to full sum of $31,715.57, with 6 per cent. interest compensation for damages from discrimination from the same date. The verdicts of the by carrier in car distribution, neither allowance jury were, for the first period, $16,092.92; of interest as part of award by Interstate Com for the second period $33,618.37. merce Commission nor instruction, in action on [1] 1. The plaintiff in error complains of the award, that the jury might do so, is error, the allowance of an amendment correcting a though recovery was less than amount of claim mistake in the declarations transposing the before Commission; the carrier never having awards. The mistake was first noticed by offered any payment.

the court near the close of the trial. This 3. APPEAL AND ERBOB Cw216(6)—REVIEW- amendment was so obviously just and within

FAILURE TO CHARGE-CALLING COURT's ATo the court's discretion that we need only say TENTION.

that we think no error was committed in Failure to charge one of numerous requested points was waived, and cannot be reviewed;

allowing it. counsel, on statement of judge that he thought

[2] 2. It is insisted that the court erred in he had covered all the points submitted, and allowing the jury to add interest not exceedinvitation to call attention to any point, not ing 6 per cent. on the damages found; this mentioning the point, but making another re- upon the theory that the recoveries were bequest, and excepting generally to refusal to low the amounts claimed before the Commischarge requested points.

sion which were so large as to be wholly unIn Error to the United States Circuit Court fair. But the defendants in error were enof Appeals for the Third Circuit.

titled to full compensation for the damages

*sustained as the result of the wrongful disTwo actions, one by James H. Minds, sur-crimination against them. Section 8 of the viving partner, etc., and the other by James Act to Regulate Commerce (Act Feb. 4, 1887, H. Minds and another, partners, both

c. 104, 24 Stat. 382 [Comp. St. $ 8572)). The against the Pennsylvania Railroad Company. Commission allowed interest as part of its Judgments for plaintiffs were affirmed by award, and the District Court charged the the Circuit Court of Appeals (244 Fed. 53, jury that it might do so in making up its 156 C. C. A. 481), and defendant brings error. verdicts. We see no error in this. For years Affirmed.

these claims have been contested, the com*Messrs. Francis I. Gowen, of Philadelphia, pany never offered any payment of the Pa., and Frederic D. McKenney, of Washing- awards, and unless interest is to be allowed ton, D. C., for plaintiff in error.

there seems to be no means of making the Mr. James A. Gleason, of Du Bois, Pa., for claimants whole for the wrongs sustained by defendants in error.

violations of the statute.

3. It is contended that the court erred in Mr. Justice DAY delivered the opinion of fixing counsel fees, as only those are allowthe Court.

able which compensate for court services. These cases were tried together in the Meeker v. Railroad, 236 U. S. 412, 35 Sup. courts below and may be considered and dis-Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691. posed of in like manner here. *They were But we are not prepared to say that the court brought upon reparation orders made by the abused its discretion in fixing the fees. Interstate Commerce Commission based upon There is nothing to warrant our interference alleged discrimination against the plaintiffs, with the judgments in this respect. in car distribution. Two periods were in 4. Error is alleged in the charge as to the controversy: In No. 293 from July 1, 1902, cost of producing the coal which entered into

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

.370

*372

the computation of damages. Upon this / any specific point which they would like to bave point there was a conflict in the testimony, specifically answered." and an examination of the charge satisfies us that the question was fully and fairly

The court in its charge had not adverted to left to the jury.

the effect *to be given to the testimony of the [3] 5. We come to the final and most seri- defendant's expert. The observations, just ous complaint of error in the proceedings. referred to, called upon counsel to direct the As to the first period there was no contest court's attention to points omitted. The over the amount of tonnage which the plain- plaintiff's counsel called the court's attention tiffs could have shipped, had the cars been to some things. Counsel for the company fairly distributed during that period. As to said: the second period, the contention is that there “In the first period, we do not dispute the was testimony tending to show that the Com- lost tonnage, only the cost. In the second perimission awarded reparation under a rule od, we dispute the correctness both of plaintiffs' which violated its own final determination of cost figures and also the tonnage. We ask that the correct rule, in the same manner as was

the court so charge." shown in Penna. R. R. Co. v. Jacoby, 242 U.

The court responded : S. 89, 37 Sup. Ct. 49, 61 L. Ed. 165, resulting in the reversal of the judgment in that case. "Now, gentlemen, I want to make that clear. There is no showing that the court gave a In the first period, there is no question of the wrong rule in this respect in its charge to tonnage raised. The defendant concedes the the jury. But here, as in the Jacoby Case, amount of the tonnage, and the difference is all the company called an expert witness who selves there with any other question than the

So you need not trouble yourtestified that the *tables in a blueprint, put in cost question. In the second period, the claim evidence by the complainants before the Com- is questioned in two respects; the cost, just mission, were made upon a basis of car dis- as it is in the first period, and the tonnage is tribution, which, if applied to complainants, also questioned. So, of course, you cannot would result, as pointed out in the Jacoby deterinine the amount of damage until you have Case, in giving to them the wrongful prefer- settled both of those questions. ence which had been awarded to favored

"I understand that the parties have agreed companies. The witness testified that a com- tions may be sent out in order to save the jury

that their respective statements of their posiputation showed that the Commission, in the labor of making calculations. Is that cormaking its award, had followed this errone- rect?" ous table and had used its percentages as the basis of its award. The record discloses Counsel for the plaintiff and for the comthat the company asked 18 special points to pany each answered: be given in charge to the jury, in 2 of which

Yes, sir." it requested charges which were based on this witness' testimony as to the inaccuracy benefit of the figuring of the parties on each

“The Court: So, gentlemen, you will have the of the tables, asking the court in substance

ide, which will present their respective views. to say to the jury that, if the Commission You will take the case and dispose of it. used such tables in making its computation, "Counsel for the defendant excepted to the rethe awards were on a wrong basis and fusal of the trial judge to charge as requested by should be disregarded.

them in such points as were not affirmed. (ExThe Circuit Court of Appeals answered this ception noted for defendant by direction of the

court.)” contention by distinguishing the Jacoby Case -in that the recovery in that case was based

We have, then, this situation: After a wholly upon the award of the Commission charge dealing with the general questions in and in precisely the same amount, whereas, the case, with numerous *special requests to in this case there was other testimony as charge “points” as they are called, the preto the damages, and the jury awarded a re- siding judge expressed the view that he. covery in a sum much less than the amount thought he had gone over the subjects emfixed by the Commission. If these were all braced in the requests submitted. That he the grounds of distinction between this and had omitted some is not surprising, for the the Jacoby Case we should be constrained court was dealing with an exceedingly diffito hold that the failure to give the company's cult and complicated situation of car disspecial requests, based on the expert's tes-tribution, concerning which the Interstate timony, was substantial error, requiring a Commerce Commission, the body primarily reversal; but at the close of his charge the intrusted with the determination of such judge said:

matters, had long deliberated before announc"I think I have gone over the subject-matter ing the rule upon which it finally acted and of all the different points submitted to me. So made its award in the series of cases of far as they are affirmed in the general charge which those now before us are a part. Upon they are affirmed, and so far as not affirmed in the invitation of the trial judge the comthe general charge they are disaffirmed, and pany's counsel made the request which we counsel, if they choose, may call my attention to have quoted, and the judge at once complied

928.

(39 Sup.Ct.) with it, and charged, as counsel desired, up, ferred, and as to them, we are of the opinion on that particular subject, adding that he that such failure was waived by the course understood that the parties had agreed that of proceeding to which attention has been the respective statements of their positions directed. might go to the jury to save it the labor of Affirmed. making calculations. In this way the parties got before the jury the calculations

(250 U. S. 483) showing their respective claims. This may have been and probably was the reason for

SOUTHERN PAC. CO. v. BOGERT et al. the failure of counsel to call attention to (Argued April 17 and 21, 1919. Decided June the omission to answer the particular points

9, 1919.) requested concerning the effect to be given to the testimony of the defendant's witness,

No. 305. if credited by the jury. Apparently counsel were satisfied when the jury had before it 1. CORPORATIONS C182 — MAJORITY STOCKthe table showing the basis of their claims

HOLDERS-FIDUCIARY RELATION-PROPERTY in the case. But, whatever the reason, the

OF CORPORATION. court, after a careful and painstaking charge,

While the owners of the majority of the thinking he had answered the "points" of shares in a corporation have the right to conboth sides, called upon counsel to suggest minority, and if through that control a sale of

trol it, they occupy a fiduciary relation to the omissions as to particular points; then fol- the corporate property is made, and the proplowed the proceedings already recited. We erty acquired by the majority, the minority may think counsel should have directed attention not be excluded from a fair participation in to the omission which it is evident was in the fruits of the sale. advertent. The case, in this aspect, is en 2. APPEAL AND ERROR S 1094(1)–REVIEWtirely unlike the Jacoby Case, where a spe- FINDINGS-INTERMEDIATE COURTS. •cific request was made and refused, and a

The concurrent findings of fact by two lowrecovery had upon an award of the Commis-er courts will be accepted as correct by the sion which the testimony tended to show was Supreme Court where no adequate reason apmade upon a wrong basis.

pears for challenging the correctness of such *This court has repeatedly held that objec- findings. tions to the charge of a trial judge must be 3. EQUITY 71(4) — “LACHES” – LAPSE OF specifically made in order that he may be TIME-PREJUDICE. given an opportunity to correct errors and The right of a complainant to maintain an omissions himself before the same are made effective suit is not barred by laches because the basis of error proceedings; this is the of lapse of time alone, where there has been only course fair to the court and the parties. no prejudice from delay, and where complainMcDermott v. Severe, 202 U. S. 600, 610, 26 ant did not acquiesce in the situation, but mainSup. Ct. 709, 50 L. Ed. 1162; Norfolk & tained other suits, though mistaking his remWestern Ry. Co. y. Earnest, 229 U. S. 114, I edy; for the essence of "laches” is not mere 120, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. diligence in seeking a remedy.

lapse of time, but is acquiescence or lack of Cas. 1914C, 172; United States v. Fidelity

[Ed. Note.-For other definitions, see Words Co., 236 U. S. 512, 529, 35 Sup. Ct. 298, 59 and Phrases, First and Second Series, Laches.) L Ed. 696; Jacobs v. Southern Ry., 241 U. S. 229, 236, 36 Sup. Ct. 588, 60 L. Ed. 970; 4. EQUITY 6m82—LACHES—PENDENCY OF LEGuerini Stone Co. v. Carlin Co., 248 U. S.

GAL PROCEEDINGS BY OTHERS - INTERVEN

TION. 334, 338, 39 Sup. Ct. 102, 63 L. Ed. 275. Parties may not rest content with the proced- that a suit to enforce it would be brought on

Where a cause of action is of such a nature ure of a trial, saving general exceptions to behalf, not only of the plaintiff but of all simbe made the basis of error proceedings, when ilarly situated, it is not necessary that each they might have had all they were entitled of such persons should intervene in order that to by the action of the trial court had its he may be deemed thereafter free from the attention been seasonably called to the mat- laches which bars those who sleep on their ter.

rights. The trial court and the Court of Appeals 5. JUDGMENT 570(9, 14)--CONCLUSIVENESS have refused to disturb the amounts awarded - PRIOR LITIGATION-DISMISSAL-WANT OF by the jury as compensation for the clear JURISDICTION-FORM OF REMEDY. violation of the Interstate Commerce Act, Where other suits begun by complainants which these records disclose, and which was or persons in like situation were dismissed for very much less than the sums awarded by want of jurisdiction, or were decided adversely the Commission when the allowance of in- on appeal on the ground that the remedy which terest is considered which under the court's complainants finally invoked was widely at vainstructions entered into the verdicts. We riance from the theory on which the cases were

commenced and tried, such judgments are not think the only serious ground upon which conclusive adjudications barring complainants' reversal may be asked is found in the fail-right to recover in a suit where the appropriate ure to give the points, to which we have re remedy was seasonably invoked.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. ELECTION OF REMEDIES Eww12—Acts Con-, in carrying out a reorganization scheme, de

STITUTING ELECTION INCONSISTENCY OF prived the minority shareholders of any particREMEDIES.

ipation in the shares of the reorganized com: A fruitless attempt to recover by an un- pany, and before they had asserted any claim availing remedy does not constitute an election to the stock in specie deposited such shares which will deprive one of his rights properly as collateral for a bond issue, held that, where recoverable by a different and appropriate rem- financial conditions had greatly changed beedy.

cause of the World War, after entry of decree 7. CORPORATIONS Ow573(3)—REORGANIZATION shareholders certain shares, defendant should

directing defendant to deliver to the minority -CONSTRUCTION OF AGREEMENT UNDER

upon remand of the cause on other grounds be WRITER OR BANKER.

given an opportunity to show whether such deDefendant, which through a subsidiary cor- cree would work an undue hardship. poration controlled a third corporation in which complainants were minority shareholders, held 13. CORPORATIONS Ow575-REORGANIZATIONnot to have acted as underwriter or banker in

RIGHT TO STOCK-INDEBTEDNESS. reorganization scheme which, as carried out, deprived complainants of any participation in

Where in a suit by minority stockholders the proceeds of the sale; the entire stock of to compel the delivery in specie of the proporthe reorganized corporation being obtained by tionate number of the shares of a reorganized defendant.

corporation which they should have received,

had not defendant secured the whole issue by 8. CORPORATIONS 190—LIABILITY FOR ACTS virtue of its control of a majority of the shares OF CONTROLLED CORPORATION.

of the original corporation, held, that the conA corporation which through its control of tention that the minority stockholders should another which held a majority of the stock of be compelled to bear their proportionate share a third corporation caused the third to take of the floating indebtedness which was either action detrimental to the interests of its minor- paid by defendants, or was due to corporations ity stockholders is liable therefor to the same subsidiary to it, was raised in time, and should extent as though it had been itself the holder be disposed of. of the controlling stock.

14. CORPORATIONS 575 – REORGANIZATION 9. CORI RATIONS 575—REORGANIZATION, -RIGHTS OF MAJORITY STOCKHOLDERS-INMAJORITY SHAREHOLDERS — LIABILITY TO

DEBTEDNESS. MINORITY SHAREHOLDERS.

Where defendant, which controlled a majorWhere defendant, which controlled the ma-ity of the stock of a railroad corporation, acjority of the stock of a corporation, by means quired all of the stock upon reorganization and of a reorganization scheme prevented minority discharged floating indebtedness, some of which shareholders from participating in the distribu- was due its subsidiary, held, that the minority tion of the stock of the reorganized corpora- stockholders, as a condition to compelling detion, and obtained the whole for itself, relief fendant to issue them in specie their proporcannot be denied on the ground that defendant tionate number of shares, should be required was not guilty of fraud or mismanagement; the to bear their proportionate expense of the relief being based on breach of a fiduciary re- floating indebtedness. lation. 10. CORPORATIONS 190 SUITS BETWEEN

15. EQUITY Ow114-INTERVENTION DISCRESHAREHOLDERS-PARTIES.

TION OF COURT. To a suit by minority stockholders against

It was within the discretion of the trial the majority stockholder, based on the alleg. court to allow other minority shareholders and ed misuse of its power as such, for its own representatives of a deceased minority stockbenefit, and to the detriment of the minority holder to intervene in a suit by minority stockstockholders, and in which no corporate right holders to compel defendant, which by its conis asserted, the corporation is neither an indis- trol of a majority of the shares acquired all of pensable por necessary party.

the stock of the corporation on reorganization,

to deliver in specie the proportionate number 11. CORPORATIONS 575 – REORGANIZATION of shares to which they were entitled.

RIGIITS OF MINORITY STOCKHOLDERS PROVISION FOR FLOATING INDEBTEDNESS. 16. CERTIORARI 37-PARTIES — INTERVENWhere, pursuant

reorganization TION. scheme, the holder of the majority of the

Where on certiorari to the Supreme Court shares of a railroad corporation obtained all a decree in favor of minority stockholders of the stock of the reorganized corporation, against defendant, which, by virtue of its condepriving the minority shareholders of partici- trol of the majority of the stock of a corpopation in such stock, the fact that po provision ration, acquired the whole of the stock on reorwas made for the floating indebtedness of the ganization, was modified, and the cause reoriginal corporation held no bar to relief in manded, held, that petitions for leave to infavor of the minority sought on the ground of tervene and to share in the benefits of the debreach of a fiduciary relation.

cree, filed in the Supreme Court by other mi12. APPEAL AND ERROR 1108 — PROCEED- nority stockholders, should be dismissed with

INGS AFTER REMAND CHANGE OF CONDI. out prejudice to the right of such petitioners TIONS-DECREE INVOLVING HARDSHIP. to apply to the lower court for leave to inter

Where defendant, which controlled a jority of the shares of a railroad corporation, Mr. Justice McReynolds, dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

а

vene.

ma

(39 Sup.Ct.) On Writ of Certiorari to the United States ; Company, directed that it should deliver to Circuit Court of Appeals for the Second Cir- them these shares and also in cash the sun cuit.

of $702,336.61 (being the aggregate of all divSuit by Henry L. Bogert and others, as from the times the several dividends were

idends paid thereon) and interest thereon executors under the last will and testament of Walter B. Lawrence, deceased, and oth- shares in the old Houston Company and also

received, upon receiving from them 18,816 ers, against the Southern Pacific Company with each share of old stock delivered $261 A decree for complainants (226 Fed. 500) was affirmed by the Circuit Court of Appeals in cash and interest thereon from February (244 Fed. 61, 15 C. C. A. 489), and defendant 10, 1891. This decree was affirmed by the brings certiorari. Henry J. Chase and others Pac. Co., 244 Fed. 61, 156 C. C. A. 489); and

Circuit Court of Appeals (Bogert v. Southern filed separate petitions in the Supreme Court the case comes here on certiorari (245 U. S. praying leave to intervene. Decree modi

668, 38 Sup. Ct. 190, 62 L. Ed. 539). fied, and cause remanded for further proceedings; the petitions to intervene being ed against the decree, it is important to bear

[1] In considering the many objections urg. denied without prejudice. See, also, 250 U. S. 39 Sup. Ct. 492,

constantly in mind the exact nature of the

equity invoked by the bill and recognized 63 L. Ed.

by the lower courts. The minority stockMessrs. Lewis H. Freedman, Gordon M. holders do not complain of a wrong done the Buck, and Arthur H. Van Brunt, all of New corporation or of any wrong done by it to York City, for petitioner.

them. They complain of the wrong done Messrs. Charles E. Hughes and H. Snow-them directly by the Southern Pacific and by den Marshall, both of New York City, for re it alone. The wrong consists in its failure spondents.

to share with them, the minority, the pro

ceeds of the common property of which it, Mr. Justice BRANDEIS delivered the opin- through majority stockholdings, had rightful ion of the Court.

ly taken control. In other words, the minority In 1888, and for some years prior thereto, assert the right to a pro rata share of the the Southern Pacific Company dominated the common property; and equity enforces the Houston & Texas Central Railway Company, right by declaring the trust on which the electing directors and officers through one Southern Pacific holds it and ordering dis. of its subsidiaries, which owned a majority tribution or compensation. The rule of corof the Houston Company stock. In 1888, pur- poration law and of equity invoked is well suant to a reorganization agreement, mort. settled and has been often applied. The magages upon the Houston Company proper- jority has the right to control; but when it ties were foreclosed, and these were acquired does so, it *occupies a fiduciary relation toby the Houston & Texas Central Railroad ward the minority, as much so as the corpo Company; the old company's outstanding ration itself or its officers and directors. Ir bonds were exchanged for bonds of the new; through that control a sale of the corporate all the new company's stock was delivered property is made and the property acquired to the Southern Pacific; its lines of railroad by the majority, the minority may not be were incorporated in the transcontinental excluded from a fair participation in the system of that corporation; and the minority fruits of the sale.2 stockholders of the old Houston Company re- [2] The facts on which the decree is based ceived nothing. In 1913 the appellees, suing are carefully set forth in the bill of comon behalf of themselves and other minority plaint; and the decree declares in terms stockholders, brought this suit in the Su- that every allegation contained in it is true. preme Court of New York to have the South- No adequate reason is shown for challenging, ern Pacific declared trustee for them of stock in any respect material for the purposes of in the new Houston Company and for an ac- this opinion, the correctness of this concurcounting. The plaintiffs below being citizens rent finding of the two lower courts; and it and residents of New York, and the Southern is accepted as correct. Baker v. Schofield, 243 Pacific, a Kentucky corporation, it removed U. S. 114, 118, 37 Sup. Ct. 333, 61 L. Ed. 626. the case to the District Court of the United The detailed facts and the evidence upon States for the *Eastern District of New York;, which they rest are fully recited in the opin. and that court, after a hearing on the evi- ions delivered below or in the earlier liti. dence, entered a decree for the plaintiffs. gation hereafter referred to; and the facts Bogert v. Southern Pacific Co., 226 Fed. will be recited here only so far as necessary 500. See, also, Bogert v. Southern Pac. Co. (D. C.) 215 Fed. 218, and Id. (D. C.)

1 The exact figure is $26.026. 211 Fed. 776. There had been issued by the Ch. App. 350, 354; Ervin v. Oregon Ry. & Nav. Co.

Menier v. Hooper's Telegraph Works, L. R. 9 old Houston Company 77,269 shares of stock, (c. C.) 20 Fed. 577; Id. (C. C.) 27 Fed. 625; Farmand by the new 100,000 shares. The decree ers' Loan & Trust Co. v. New York & Northern declared that the Southern Pacific held for Ry. Co., 150 N. Y. 410, 44 N. E. 1043. 34 L. R. A.

76, 55 Am. St. Rep. 689; Sparrow v. E. Bement & plaintiffs and other stockholders who inter- Sons, 142 Mich. 441, 105 N. W. 881, 10 L. R. A. (N. vened 24,347.9. shares in the new Houston s.) 725.

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