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 loa ling, 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... T. B. Hord Grain 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. No. 1363. J. T. WELLINGTON; V. M. MURPHY, DOING BUSINESS UNDER THE FIRM NAME OF MURPHY COAL & FEED COMPANY, AND LANING-HARRIS COAL & GRAIN COMPANY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY. Submitted April 6, 1908. Decided May 4, 1908. Complainants are entitled to recover from defendant sums mentioned in the repor as reparation on account of the nonabsorption of switching charges at Kansas City on specified shipments of wood made under the circumstances appearing in this case. C. W. Durbin for complainants. E. B. Peirce for defendant. REPORT OF THE COMMISSION. CLEMENTS, Commissioner: The complainants are engaged in buying and selling wood and coal at Kansas City, Mo. They asked for reparation in the sum of $102.50 for switching charges of $3 or $3.25 per car, according to the specific deliveries, paid by them on certain shipments of wood in carloads, originating at Gerster, Collins, Vista, and Chester, Mo., on the Kansas City, Clinton & Springfield Railway and carried by that line to its junction with the St. Louis & San Francisco Railroad at Olathe, Kans., and by the latter line to Kansas City. For several years prior to the filing of this complaint on December 9, 1907, the St. Louis & San Francisco Railroad Company had in effect a tariff quoting rates on wood from the points of origin named to Kansas City, in connection with the Kansas City, Clinton & Springfield Railway. This tariff, or a circular amendment thereto, provided that the switching charges of the Kansas City Belt Railway, under which the transfer of the cars is made from the defendant carrier's terminal to the respective places of business of the complainants, would be absorbed as to shipments producing net revenue of not less than $10 per car to the "Frisco System." For a long time prior to November 1, 1906, the switching charges under this tariff as construed by the defendant's agents had been absorbed when the freight revenue amounted to $13 or more per car to the two roads performing the through transportation. About November 1, 1906, defendant appears to have been advised by its counsel that these switching charges could be lawfully allowed only where the net revenue per car received by it amounted to $10. It seems to have been the intention of the defendant to absorb this switching charge all the time, and on December 24, 1906, it issued a tariff providing that it would absorb the same when the revenue was as much as $10 to the two roads named. At the hearing counsel for the defendant stated that it admitted that subsequent to December 24, 1906, the date the tariff was actually filed with the Commission, it should pay all the switching charges claimed by complainants. Complainants claim reparation for only six cars shipped prior to December 24, 1906, all the other shipments having been made subsequent thereto. Counsel for complainants stated that settlement on the basis above stated would be satisfactory to them, and asked to withdraw the complaint as to shipments made prior to the abovenamed date. The total amount of reparation claimed by all the complainants was, as stated, $102.50. The defendant offers to pay $84.50, this being the amount paid by complainants, as hereinafter stated in detail, for the switching of the cars moving subsequent to December 24, 1906. On shipments moving subsequent to that date J. T. Wellington has paid on 22 cars moving from said points of origin to Kansas City a total of $66, the Laning-Harris Coal & Grain Company has paid on 3 cars $9.50, and the Murphy Coal Company has paid on 3 cars $9. Some of these charges have been imposed on shipments moving since the effective date of the tariff referred to, providing clearly and definitely for the absorption of these charges by the defendant. Why the charges should have been imposed on shipments since that date is not explained. It is clear that since the date on which the tariff last referred to became effective the exaction of these switching charges by the defendant was in violation of its tariff and without excuse. It is our conclusion that, in view of all the facts and circumstances, complainants are entitled to reparation, respectively, in the principal sums above stated, covering the switching charges exacted on shipments embraced in this complaint and which moved subsequent to December 24, 1906, with interest at the rate of 6 per cent per annum from dates as follows: On the sum awarded to J. T. Wellington, from May 4, 1907; LaningHarris Coal & Grain Company, from May 30, 1907; and the Murphy Coal & Feed Company, from January 5, 1907. An order will be entered in accordance with these conclusions. 13 I. C. C. Rep. |