(40 Sup.Ct.) the refusal by the trial court of a motion | (evidently a misprint for "consignee") to the made by defendants to hold: (a) That upon delivering carrier, and subsequently the cattle all the evidence plaintiff was not entitled to were sold upon the market and the amount of recover against any or all of the defendants; the freight deducted from the purchase price, and (b) that there was not sufficient evi- remittance being made for the balance, so dence before the commission to sustain its that in all cases the owner and shipper of the order of reparation. The latter is the sub-cattle finally paid the transportation charges; stantial question actually presented. and that by the unreasonable exactions of the carriers the shippers were damaged in the amounts stated in the appropriate column of Appendix A, since they received for the cattle less by those amounts than they would have received had the rate found reasonable been #124 The course of proceedings at the trial, as appears from the bill of exceptions, was as follows: Plaintiff introduced the report of the Interstate Commerce Commission (unreported opinion No. A-583 in case No. 732, Cattle Raisers' Association of Texas v. Mis souri, Kansas & Texas Railway Co., dated charged; that in the case of *some of the January 12, 1914), and the order of repara- claims the shippers made assignments to H. tion made pursuant to it and upon which the E. Crowley, then being secretary of the Cataction was based. Defendants having admit- tle Raisers' Association, in a form set forth ted the service of the order, and that the in the report; that subsequently Crowley money awarded had not been paid, plaintiff ceased to be such secretary, and was succeedrested. The report makes an award in favored by Spiller, the plaintiff, to whom Crowley of Spiller, plaintiff in error, as assignee of assigned all claims previously assigned to a large number of claims for reparation by him; and that other specified claims were reason of excessive rates charged by the re-assigned by the shippers to Spiller after he spective carriers on interstate shipments of became secretary, the form of assignment becattle from points of origin in Texas, Okla- ing the same as that previously employed. homa, New Mexico, Colorado, and Kansas, to destinations at Kansas City, St. Louis, Chicago, St. Joseph, and New Orleans, on various dates between August 29, 1906, and November 17, 1908; and a further award to named shippers in the case of certain unassigned claims pertaining to similar ship *123 Defendants, endeavoring to show the insufficiency of the evidence upon which the findings and order of the commission were based, introduced a transcript of the stenographer's notes of the testimony taken upon the hearing of the reparation claims, following this by introducing a sample page taken from one of It appears that in February, 1904, the Cattle Raisers' Association of Texas, in behalf of its members and of others interested, petition the exhibits introduced before the commission as illustrative of the form of exhibits there ments; the *several claims, assigned and unassigned, with distinguishing marks, being set introduced. After other evidence not necesforth in Appendix A, showing the delivering sary to be mentioned, and a request for judg. carriers against which the claims were allow-ment in favor of defendants, and for certain ed and, in each case, the consignor, points of rulings on points of law that would have proorigin and destination, number of cars ship-duced that result, all of which were refused, the case was closed. ped, weight, rate paid, the lower rate sanctioned by the commission, amount of refund required, and the interest thereon. The report contains appropriate findings adequate to support the award, among them the fol-ed the Interstate Commerce Commission unlowing: That the persons named in Appendix A as consignors shipped from the points of origin to the points of destination specified, by the line of road named as the "delivering road," the number of cars and of the aggregate net weight stated; that the shippers paid to the delivering carriers freight upon the shipments at certain rates named; that in each instance this rate was unreasonable and excessive, and a reasonable rate to have been charged would have been the lower rate spec der section 13 of the Commerce Act (Comp. St. § 8581), alleging the rates in force in the territory in question to be unjust and unreatime before to the extent (in most cases) of sonable, they having been advanced some 3 cents per hundred pounds. On August 16, 1905. the commission held (Cattle Raisers' Association of Texas v. Missouri, Kansas & Texas Ry. Co., 11 Interst. Com. Com'n R. 296, 352) that the then existing rates were unjust and unreasonable by the amount of the ad vance. At this time the commission was not ified as having been subsequently established by the commission, and that therefore the de- empowered to fix rates for the future. This livering carriers collected from the shippers power having been conferred by the Hepburn unreasonable charges on account of the ship-Act of June 29, 1906 (chapter 3591, 34 Stat. ments in amounts named in the column head-584, 589 [Comp. St. § 85831), which, by joint resolution of June 30, 1906 (34 Stat. 838), ed "Amount of Refund"; that the shipments of live stock were in all cases consigned to took effect 60 days after its approval by the some person at the delivering market, usual- President, or on August 28, 1906, the Cattle ly a commission firm; that the freight was Raisers' Association immediately thereafter paid in the first instance by the "consignor" | applied for and obtained a reopening of the $125 matter, to the end that reasonable rates party complainant is entitled to an award might be established; and on April 14, 1908, the commission decided that the former rates should be restored, but that reparation would not be allowed upon claims accruing prior to August 29, 1906 (date of the application). 13 Interst. Com. Com'n R. 418. 435. The reduced rates finally were put into effect November 17, 1908. The reparation claims in controversy appear to have been filed in due season by the Cattle Raisers' Association in behalf of its members and other shippers interested, and in the names of the alleged owners of the cattle shipped. [5] The transcript of the testimony taken by the commission, as introduced in evidence in the District Court, forms the basis of the decision of the Circuit Court of Appeals that the reparation order was unsupported by evidence. But the transcript shows that important documentary evidence was introduced, and furnished the principal foundation for the findings made. This documentary evidence (except the single sheet offered for purposes of illustration) was not introduced in the District Court, in order, as stated by counsel, to "avoid introducing a number of papers that would almost fill a farm wagon." But obviously we hardly could sustain a decision rejecting the reparation order upon the ground that there was not sufficient evidence before the commission to support it when the whole of the evidence that was before the commission was not produced. [6] That this is a matter of substance will appear from a review of the course of the proceeding as disclosed by the stenographer's transcript. The evidence was taken by Mr. Commissioner Prouty at Chicago; there be ing three sessions, the first on September 19 and 20, 1912, the second on January 24 and the third on October 17 in the following year. They were held in the presence of counsel *126 for the *Cattle Raisers' Association, who appeared for the claimants, and counsel for the several carriers interested. If we were called upon to review the proceeding as upon a writ of error or appeal it might be difficult to say that no improper evidence was admitted, that production of the best available was insisted upon, or that a different conclusion might not have been reached upon that which was admitted. But the scope of the judicial review is not so extensive. Section 13 of the Act to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 383, amended June 18, 1910 [chapter 309, 36 Stat. 539, 550]) requires the commission on receipt of a claim for reparation to proceed on notice to the carrier to "investigate the matters complained of in such manner and by such means as it shall deem proper"; and by section 16 (34 Stat. 590; 36 Stat. 554), if, after such hearing, the commission shall determine that any of damages, the commission is to make an order of reparation accordingly, and in a suit based thereon "the findings and order of the commission shall be prima facie evidence of the facts therein stated." The same section contemplates that numerous parties may unite in a claim for reparation, and that numerous carriers may be joined as defendants; and similarly that in a suit brought upon such award there may be a joinder of parties plaintiff and defendant. And, by section 17 (24 Stat. 385; 25 Stat. 861 [Comp. St. § 8586]), "the commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." These provisions allow a large degree of latitude in the investigation of claims for reparation, and the resulting findings and order of the commission may not be rejected as evidence because of any errors in its procedure not amounting to a denial of the right to a fair hearing, so long as the essential facts found are based upon substantial evidence. #127 [7-9]*In the present case, the hearing was informal, but not to the extent of sacrificing essential rights of parties; and it cannot be characterized as arbitrary or unfair. Many carriers were interested, and they were represented by counsel. Thousands of carload shipments were in question, but the points in real controversy were few, and there was a natural desire on all sides to expedite the hearing. In the main, counsel for the carriers co-operated in facilitating the investigation. It was not in dispute that all shipments under inquiry were made during a period when the tariff rates were under investigation, and that afterwards those rates were determined by the commission to have been excessive. It appeared that itemized claims for reparation had been made out in duplicate (one copy of each being filed), in the names of the parties alleged to have made shipments of cattle as owners during the period in question, that these were based in most cases upon data furnished by the commission houses at the several points of destination, as taken from their books, in other cases by the shippers themselves, and that they were computed by applying the excess charges, as determined, to the actual weights of the shipments where known, in other cases to the minimum carload weights. There was evidence that a few of the cattle shippers kept books, they relying upon the commission companies to do this, and that such companies were the consignees of the cattle, and made it a practice on receiving a shipment to pay the freight, sell the cattle, and remit the proceeds to the owner after deducting the freight paid and other charges. During the hearing, there was drawn off (40 Sup.Ct.) from the claims as made up and filed a sum- | sion of the hearing it was the intention to mary for each carrier, purporting to show appoint an examiner to investigate the books the consignor, consignee, originating road, point of origin, destination, date of delivery, number of cars moved, rate paid, rate established by the commission, and the overcharge claimed. These were submitted to the several carriers for investigation by their ac counting officers, and *some months later were reported back to Commissioner Prouty by their counsel with the results of such investigation, which in a majority of instances verified the statements said to have been deduced from the records of the commission #128 of the commission merchants at the various points of destination in order to verify the details of the several shipments, and that this purpose was abandoned in view of the admissions made by the carriers. Perhaps it ought to have been carried out; but the court was not justified in treating the report of the commission as a nullity for this reason, if there was substantial evidence of the essential facts without such verification. We think that what we have detailed of the course of the hearing, taken in connection with what we know and what may be prehouses. In some cases, in addition to check sumed as to the contents of the unproduced marks, “O. K." and other marks indicating documentary evidence, shows there was subthat the items had been found correct, way-stantial evidence that the owners specified bill references, car numbers, initials, etc., in the claims had been subjected to the exhad been inserted; and where it had been cessive charges with respect to the shipments found impossible to locate a shipment there acknowledged by the carriers; and, as alwere comments tending to add support to the ready remarked, the award of reparation was confined to these shipments. *130 [10] The opinion of the Circuit Court of Appeals severely criticizes the evidence on which these conclusions were based, characterizing it as hearsay. It is not to be disputed that much of the evidence-including essential parts of it is properly so characterized. The only witness sworn was Mr. Williams, assistant secretary of the Cattle Raisers' Association, who had gathered the data upon which the claims were based, mostly from commission merchants, in some instances from the cattle shippers. He had prepared the claims, had spent much *time and pains in investigating them, and in the course of his duties had visited several of the points of destination and examined the books and records of the commission merchants to ascertain the method in which their business was conducted and records kept. It was he who testified as to the customary course of business of cattle shippers and commission merchants. had been connected with the Cattle Raisers' Association for about eight years, and might be presumed to have some general familiari verification of those that were located. No reparation was awarded by the commission except with respect to such shipments as were acknowledged in the reports of the defendants to have moved as stated. These reports were introduced in evidence before Commissioner Prouty, but, as already shown, were not in evidence before the District Court. What we have said as to their contents is gathered from the stenographer's transcript; what else may have appeared upon their face, in the nature of admissions, is left to be inferred. Counsel for some of the carriers undertook to qualify the effect of admissions contained in them, as by say ing that the checking meant no more than that a particular car moved as stated, and that the carrier collected the amount of freight specified; that it was not intended to admit that remittance was made to the person named as claimant; that the state ments were subject to confirmation by the books of the commission merchants, or the like. But the commission was justified in according to the reports of the checking an evidential effect, not limited by the qualifying statements, treating the latter as merely argumentative. It might regard the fact that the shipments could be and were identity with the business in addition to that gainfied from the records of the carriers, in the manner described, as evidence that the details respecting the shippers of the cattle and the particulars of the shipments were true; might take the movement and delivery of *129 He ed in the special study he had made of it while investigating the claims. His explanation of the method of business and the details of the claims was accepted, and accepted without objection, very much as the testimony of an expert witness might have been accepted. Whether he had shown such special knowledge as to qualify him to testify as an expert was for the Interstate Commerce Commission to determine; and its decision thereon is not to be set aside by the courts unless clearly shown to have been unfounded, which cannot be said in this case. Stillwell Mfg. Co. v. Phelps, 130 U. S. 520, 527, 9 Sup. Ct. 601, 32 L. Ed. 1035; Montana Ry. Co. v. Warren, 137 U. S. 348, 353, 11 Sup. Ct. 96 the freight thus *acknowledged as evidence *132 not binding down the *commission too closely in respect of the character of the evidence it may receive or the manner in which its hearings shall be conducted. The evidence was not objected to as hearsay | high Valley R. R., 236 U. S. 434, 439, 35 Sup. when introduced, nor, indeed, at any time Ct. 337, 59 L. Ed. 659; Mills v. Lehigh Valley during the hearing before the commission. R. R., 238 U. S. 473, 482, 35 Sup. Ct. 888, Counsel did in some instances assert that 59 L. Ed. 1414), being open to contradiction there was a failure of proof, and suggest by the carrier when sued for recovery of that the proceeding ought to be dismissed. the amount awarded, is an added reason for But the objections came too late, and were too general in character, to be equivalent to an objection to the reception of the evidence because hearsay. Even in a court of law, if evidence of this kind is admitted without objection, it is to be considered, and accorded its natural probative effect, as if it were in law admissible. Diaz v. United States, 223 U. S. 442, 450, 32 Sup. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138; Rowland v. St. Louis & S. F. R. R. Co., 244 U. S. 106, 108, 37 Sup. Ct. 577, 61 L. Ed. 1022; Damon v. Carrol, 163 Mass. 404, 408, 40 N. E. 185. And it is clear that the verification of the details of *131 the claims by the carriers after full investigation by their auditing departments constituted primary evidence against them, and went far towards showing that the facts as disclosed by the hearsay evidence might be depended upon. In this case the commission did not act upon evidence of which the carriers were not cognizant and to which they had no opportunity to reply, as in the case supposed in Interstate Com. Comm. v. Louis. & Nash. R. R., 227 U. S. 88, 91, 93, 33 Sup. Ct. 185, 57 L. Ed. 431. All the carriers participated in the hearing, and had full opportunity to object, to cross-examine, and to introduce evidence on their own part. It is objected that the evidence failed to show who owned the cattle shipped or who paid the freight. This cannot be sustained. True, it appeared that the cattle were not in all instances billed in the name of the owner, but sometimes in the name of a caretaker, his name being inserted in the bill as evidence of his right to free transportation. But it is probable that in the latter cases there was a want of correspondence between the claims as presented and the carriers' books, and that for want of checking by the carriers they were omitted from the award. The evidence upon the whole was sufficient to sustain a finding, so far as the claims were allowed, that the parties in whose be [11] We are not here called upon to consider whether the commission may receive and act upon hearsay evidence seasonably objected to as hearsay; but we do hold that in this case, where such evidence was introduced without objection and was substantially corroborated by original evidence clearly admissible against the parties to be affected, the commission is not to be regarded as having acted arbitrarily, nor may its findings and order be rejected as wanting in sup-half they were allowed were consignors of port, simply because the hearsay evidence was considered with the rest. In Interstate Com. Comm. v. Baird, 194 U. S. 25, 44, 24 Sup. Ct. 563, 569 (48 L. Ed. 860), it was said: "The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation and it should not be hampered in making inquiry pertaining to interstate commerce by those narrow rules which prevail in trials at common law where a strict correspondence is required between allegation and proof." In Interstate Com. Comm. v. Louis. & Nash. R. R., 227 U. S. 88, 93, 33 Sup. Ct. 185, 187 (57 L. Ed. 431), the court recognized that "The commission is an administrative body and, even where it acts in a quasi judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties." And the fact that a reparation order has at most only the effect of prima facie evidence (Meeker & Co. v. Lehigh Valley R. R., 236 U. S. 412, 430, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691; Meeker v. Le the shipments and presumably owners of the cattle shipped. [12] If there be doubt whether it was sufficient to sustain each and every claim that was allowed, we are not now concerned with this; the ruling in question being the refusal of the trial court to treat the award as void in toto. This was not erroneous if to any substantial extent the award was legally valid. If a part only of the claims was unsupported by evidence, the request for an adverse ruling should have been directed to these. The principal defense before the commission was that the payment of a published rate afterwards decided to have been excessive was not evidence that the party who #133 paid the freight sustained damage to the extent of the excess. The Circuit Court of Appeals sustained this contention at the first hearing. 246 Fed. 1, 23, 158 C. C. A. 227. But it has since been ruled otherwise by this court (Southern Pacific Co. v. DarnellTaenzer Co., 245 U. S. 531, 534, 38 Sup. Ct. 186, 62 L. Ed. 451), and, in view of this, upon the rehearing the Circuit Court of Appeals withdrew this part of its former opinion (249 Fed. 677, 161 C. C. A. 587). (40 Sup.Ct.) *135 [13] That court held, further, that upon [ grounds upon which the Circuit Court of Apthe undisputed evidence the legal title to the peals based it. It is insisted, however, that, claims for reparation never vested in Spil- failing this, the same result ought to have ler, and hence that the commission was whol- been reached upon the ground that the proly without authority to order reparation to visions of the Commerce Act do not perbe made to him. The minutes show that mit an assignment of a claim for reparation of the claims in favor of Spiller a number to a third party and hence the Interstate had been assigned to Crowley when he was Commerce Commission was without jurisdicsecretary of the Cattle Raisers' Association, tion to award reparation to Spiller. This is and afterwards assigned by him to Spiller based upon the language of sections 8 and 9 when Crowley retired and Spiller succeeded (Comp. St. §§ 8572, 8573), which remain in him; that other claims were assigned by their original form, of section 13, as amendthe consignors to Spiller direct; and that still ed June 18, 1910 (chapter 309, 36 Stat. 550), others had not been assigned. The assign- and of section 16 as amended June 29, 1906 ments were produced before Commissioner (34 Stat. 584). Section 8 (24 Stat. 382) makes Prouty, and an offer made to file them, but the common carrier, for anything done conas we interpret the minutes this was waived, trary to the prohibition of the act, "liable a copy of one of the assignments (they were said to be alike in form) being inserted in to the person or *persons injured thereby for the full amount of damages sustained in the stenographer's notes instead. There was evidence that the assignments were made consequence of any such violation of the profor nominal considerations because the Cat- visions of this act." Section 9 entitles any tle Raisers' Association was prosecuting the person claiming to be damaged either to claims for the benefit of the owners thereof. make complaint to the commission or to In the schedule of the claims as submitted "bring suit in his or their own behalf for to the commission those assigned were suit- the recovery of the damages for which such ably identified, and the commission awarded common carrier may be liable." Section 13 reparation to Spiller upon these, and in contains nothing that need be quoted. Secother cases made the order in favor of the tion 16 as amended (34 Stat. 590) provides that where an award of damages is made parties named as owners. There was substantial evidence to support the finding that by the commission and the carrier does not the claims had been assigned. Formal proof comply with the order, "the complainant, of the handwriting of the assignors by sub- or any person for whose benefit such order scribing witnesses or otherwise was not necwas made" may bring suit. Stress is laid essary in so summary a hearing, in the upon the absence of language expressly exabsence of objection or contradiction. What tending the remedy to the representatives or assigns of the person aggrieved; but we attribute no controlling significance to this. The provisions of the act giving redress, compensatory in its nature, to persons sustaining pecuniary injury through the violation of public duty by the carrier must receive a reasonably liberal and not a narrow interpretation. A claim for damages sustained through the exaction of unreasonable charges for the carriage of freight is a claim not for a penalty but for compensation, is a property right assignable in its nature (Comegys v. Vasse, 1 Pet. 193, 213, 7 L. Ed. 108; Erwin v. United States, 97 U. S. 392, 395–396, 24 L. Ed. 1065), and must be regarded as assignable at law, in the absence of any expression of a legislative intent to the contrary. We find nothing in the letter or spirit of the act inconsistent with such assignability. We are referred to certain expressions in Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 442, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, and Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 533, 534, 38 Sup. Ct. 186, 62 L. Ed. 451; but they do not bear upon the present question, and are not inconsistent with the view that reparation claims are assignable. *134 was shown as *to the relation of the shippers to the association and the possession of the instruments of assignment by the representative of the association who was prosecuting the claims gave a reasonable assurance of the genuineness of the instruments. [14] The Circuit Court of Appeals held further, however, that, supposing there was sufficient evidence to support the finding that the claims had been legally assigned to Spiller, it showed that the purpose of the assignment was not such as to vest the legal title to the claims in him so as to authorize the commission to make the award of damages in his name. To this we cannot assent. The assignments were absolute in form, and plainly their effect-supposing the claims to be assignable-was to vest the legal title in Spiller. What they did not pass to him was the beneficial or equitable title. But this was not necessary to support the right of the assignee to claim an award of reparation and enable him to recover it by action at law brought in his own name but for the benefit of the equitable owners of the claims; especially since it appeared that such was the real purpose of the assignments. [16] The Interstate Commerce Commission, by Conference Ruling No. 362 (June 4, [15] We have said enough to show that the reversal of the judgments of the District Court cannot be sustained on the 1912), declared: |
