No. 1385. FAIN & STAMPS v. ATLANTIC COAST LINE RAILROAD COMPANY AND Submitted April 30, 1908. Decided May 4, 1908. A formal complaint being at issue, the parties adjusted the matter without a formal hearing, filed with the Commission the terms of the adjustment, and consented that the Commission establish a rate for the future and order reparation. Order made accordingly. Moore & Pomeroy and W. W. Hood for complainant. Ed. Baxter and R. Walton Moore for defendants. REPORT OF THE COMMISSION. COCKRELL, Commissioner: The complaint was filed January 4, 1908, and alleged that the complainant is a copartnership composed of W. P. Fain and W. O. Stamps, engaged in the wholesale grocery business in Atlanta, Ga.; that the defendants are common carriers between points in the state of Florida and points in the state of Georgia, and as such subject to the interstate commerce laws; that 5 carloads of oranges were shipped from St. Petersburg, Fla., over the Atlantic Coast Line Railroad and the Central of Georgia Railway and delivered to complainant at Atlanta, Ga.; that in addition to the regular freight charges on said shipments the said Central of Georgia Railway Company demanded and collected from complainant the sum of $45 per car for refrigeration charges; that said charges were unreasonable and unjust, and that neither of the defendants had filed a tariff for refrigeration charges between the points named; that refrigeration on oranges between the points named should not have exceeded $10 per car; that complainant had made demand upon the Central of Georgia Railway Company for refund of the sum of $175, the same being $35 per car for each of the said 5 cars; and prayed for reparation in the sum of $175, and the establishment of a refrigeration charge between the points named not to exceed $10 per car, and for general relief. The defendants filed their joint and several answers January 25, 1908, denying the general allegations, but admitting that the refrigeration charges between the points named were at the rate of $45 per car, denied that such charges were unreasonable or unjust. Before the case was set for hearing complainant informed the Commission that a satisfactory adjustment had been reached whereby the railroads were to establish a refrigeration charge of $35 per car on oranges between the points named and refund to complainant the amount it had paid in excess thereof. The Commission replied that the correct procedure would be to file with the Commission a statement showing the terms of the settlement, with request for the Commission to make proper order to dispose of the case, such statement to be signed by all the parties. Thereafter, on April 13, 1908, complainant filed a supplemental petition setting forth the terms of adjustment as above, and on the same day the Atlantic Coast Line Railroad Company, by its proper officials, filed with the Commission an application requesting an order for the payment of reparation in the form prescribed by the Commission for reparation in informal complaints, and therein made explanation as follows: At the time these shipments moved we published no refrigeration rate on oranges from St. Petersburg, Fla., to Atlanta, Ga., but carried in our tariff a note providing for the rate applicable to the point next beyond; since that time, namely, March 28, 1908, we have published a rate for refrigeration between these points of $35 per car, and we desire to protect said low rate on these shipments. Adding: It is admitted that the lawful rate applicable at the time and over the route shipment moved was, under all the circumstances and conditions then existing, excessive and unreasonable. On April 30, 1908, the Atlantic Coast Line Railroad Company and the Central of Georgia Railway Company filed additional authority for the Commission to make such order in this case as may be proper, and asked authority to refund to complainant the specific sum of $50, the same being at the rate of $10 per car collected by the defendants in excess of the rate now admitted to be reasonable on the shipments in question. The Commission has made no investigation as to the reasonableness of the rate adjustment and expresses no opinion thereon; but acting upon the facts stated our conclusions are that the charges for refrigeration on oranges from St. Petersburg, Fla., to Atlanta, Ga., demanded and collected from complainant at the rate of $45 per car on 5 carloads of oranges were unjust and unreasonable in so far as they were in excess of a charge for the same service at the rate of $35 per car, and that the just and reasonable charge to be hereafter observed for a period not exceeding two years from the 1st day of July, 1908, for the refrigeration of oranges in carloads from St. Petersburg, Fla., to Atlanta, Ga., should not exceed $35 per car; and that the defendants refund to complainant so much of the total refrigeration charges as are herein found to be excessive, namely, $50 in all. An order in accordance here with will be issued. No. 1193. S. MACMURRAY, DOING BUSINESS UNDER THE NAME OF v. UNION PACIFIC RAILROAD COMPANY. Submitted April 27, 1908. Decided May 4, 1908. Reparation on account of alleged unjust discrimination of defendant in not furnishing complainant with his proper share of cars for shipment of grain at Wood River, Nebr., in November and December, 1906, while during that time complainant's competitors at that station were favored with grain cars, denied, as the testimony discloses that the time mentioned was during the car-shortage season, and that the business of complainant and his competitors suffered in common during that time, and no undue discrimination in furnishing cars by defendant was satisfactorily shown. W. H. Thompson for complainant. F. C. Dillard for defendant. REPORT OF THE COMMISSION. CLEMENTS, Commissioner: Complainant buys and sells grain at Wood River, Nebr., a local station on the Union Pacific Railroad. In addition to complainant, the Omaha Elevator Company, the T. B. Hord Grain Company, and the Conrad Grain & Elevator Company are there engaged in the same business. The complaint is that during November and December, 1906, defendant unduly discriminated against him and in favor of other dealers in the furnishing of cars for shipments of grain. Reparation on account of the alleged unjust discrimination is asked in the sum of $2,000. Complainant owns two warehouses, with a total capacity of about 12,000 bushels, located from 80 to 200 feet from the tracks of the railway. He has no elevator, but by means of scoop shovels loads the cars from wagons, in which the grain is hauled either from the warehouses or directly from the farms. To load one car requires from 16 to 20 wagonloads and usually takes as much as a day and sometimes more. Complainant's competitors, above named, own and operate elevators and load a car in about two hours. The Omaha Elevator Company has an elevator and warehouse capacity of 62,000 bushels; the Hord Grain Company, 60,000 bushels; and the Conrad Grain & Elevator Company, 46,000 bushels. On an average there are shipped from Wood River about 250,000 bushels each year, of which, it was testified by complainant, he ships about 10 per cent, or 25,000 bushels. The testimony is conflicting as to just what proportion of the grain each of the elevator companies handles, but it fairly appears that the Conrad Company handles nearly half of the total. In the fall of 1906, when there was great shortage of equipment throughout the country, this was very marked on the lines of the Union Pacific, including the station at Wood River. The daily car record of defendant, submitted in evidence, shows Wood River was short of the demand on an average about 15 cars per day during November and December of that year. The records indicate that during these two months the four grain companies were supplied a total of 89 cars, of which complainant received 7, the Conrad Company 49, and T. B. Hord Company 19, and the Omaha Elevator Company 14. While all these dealers were demanding many more cars than they were able to secure, the elevators and warehouses were practically filled to their capacity all the time because of inability to secure cars. The agent of the defendant at Wood River testified that he had received special directions to make no discrimination against complainant in the distribution of cars, and that he had not made any such discrimination. He further testified that during this time it was the policy of the company to so conduct its business as to secure as rapid handling of equipment as possible, and that to carry out this policy he so distributed the cars as to secure the promptest loading, having due regard for the rule of the company that 48 hours should be allowed for loading. He insisted that he had supplied complainant with his fair proportion of cars, as determined by the demand therefor and the ability to handle the business when the cars were supplied. From a statement taken from the records of the defendant, furnished at the request of the examiner, it appears that during the year 1906, prior to the period covered by the complaint, there were shipped cars of grain by the four grain companies at Wood River, as follows: Conrad Grain and Elevator Company... Omaha Elevator Company. MacMurray (complainant). 150 102 58 17 This shows that complainant during the year 1906 shipped out about 5 per cent of the grain. Complainant insists that he could have greatly increased his business if he had been supplied with cars as needed. While it is no doubt true that under the circumstances of general insufficiency of transportation facilities prevailing during the period covered by this complaint, complainant could have greatly increased his business, if supplied with cars as needed, it is not apparent that he could have done so had his competitors also been supplied with all cars needed by them. They all, in common with shippers throughout the country, suffered in the same way from the effects upon their business of the so-called car shortage. Demands were being made by the competitors of complainant at Wood River upon the defendant for more cars during the same period and vigorous protests were made by them on account of the failure of the defendant to furnish a sufficient number of cars. The business of complainant and of his competitors suffered in common. No undue discrimina tion in the matter complained of has been satisfactorily shown. The complaint will be dismissed. 13 I. C. C. Rep. |