No. 205411 STANDARD HARDWOOD LUMBER COMPANY v. PENNSYLVANIA RAILROAD COMPANY ET AL. Submitted December 3, 1928. Decided August 19, 1929 Shipments of lumber, in carloads, from points in Arkansas, Indiana, and Illinois, milled in transit at Buffalo, N. Y., and forwarded to East Pittsburgh, Pa., found misrouted. Rates charged found applicable over the route of movement. Reparation awarded. M. G. Braven for complainant. Ed. A. Niel and Chas. R. Webber for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: This case was presented under the shortened procedure. Exceptions were filed by complainant and one of defendants to the report proposed by the examiner. Our conclusions differ from those recommended by him. Complainant, a corporation dealing in lumber at Buffalo, N. Y., alleges by four complaints, two filed January 6, 1928, and two filed January 26, 1928, that certain shipments of lumber, in carloads, originating or treated as originating at Marianna, Deutsch, and Arkansas City, Ark., Seymour, Ind., and Mound City, Ill., between June 4, 1925, and February, 1926, inclusive, milled in transit at Buffalo, N. Y., and forwarded to East Pittsburgh, Pa., were misrouted and overcharged subsequent to arrival at Buffalo. Reparation only is sought. The shipments were delivered on or subsequent to January 26, 1926. Rates will be stated in amounts per 100 pounds, except as otherwise noted. One of the defendants urges that misrouting is not sufficiently alleged and offered no evidence as to that allegation. The complaints in substance state that complainant was charged a certain rate and that if the shipments "moved in accordance with routing on bill of lading," complainant "would have only had to pay a 1 This report also embraces No. 20541 (Sub-No. 1), Standard Hardwood Lumber Company v. Pennsylvania Railroad Company et al.; No. 20541 (Sub-No. 2), Same v. Same; and No. 20541 (Sub-No. 3), Same v. Same. other than that charged. Our practice has been to look to the substance of a complaint rather than to its form and complaints filed with us need not be technically pleaded. The language used in the complaint is broad enough to cover an attack upon both the applicability of the rate and misrouting and complainant's memorandum of fact and argument put defendant on notice as to the issues it was called upon to meet. Bissel Co. v. Pennsylvania R. Co., 147 I. C. C. 743, 744. The movements from points of origin to Buffalo are not material. The bills of lading on all shipments contained specific instructions that the shipments should move over the Buffalo, Rochester & Pittsburgh to Willow Grove, Pa., thence over the Baltimore & Ohio to Herr's Transfer, Pa., and the Pennsylvania beyond. The shipments, however, moved over the Buffalo, Rochester & Pittsburgh to Willow Grove, Pa., thence over the Baltimore & Ohio to Bessemer, Pa., and thence over the Pennsylvania beyond. No through rates were in effect to East Pittsburgh from any of the points of origin. Charges were collected at the rates applicable over the routes of movement made up of commodity rates to Willow Grove, minimum 34,000 pounds, of 40 cents from Arkansas City, 41.5 cents from Marianna and Deutsch, 31.5 cents from Mound City, and 25 cents from Seymour, plus a class rate of 9.5 cents from Willow Grove to East Pittsburgh via Bessemer. Complainant contends that if the shipments had moved in accordance with the routing shown on the bill of lading, the rates applicable would have been the above-named factors to Willow Grove, plus a switching charge of $1.50 per car from Willow Grove to Herr's Transfer, and a commodity rate of $1.01 per net ton from Herr's Transfer to East Pittsburgh, subject to the combination rule. The effective Buffalo, Rochester & Pittsburgh tariff, which was concurred in by the Baltimore & Ohio, provided a switching charge of $1.50 per car from the connection of the Baltimore & Ohio and the Buffalo, Rochester & Pittsburgh lines at Willow Grove to the connection of the Baltimore & Ohio and Pennsylvania lines at Herr's Transfer, but neither the Baltimore & Ohio nor the Pennsylvania published any rate from Herr's Transfer to East Pittsburgh, nor is such a point as Herr's Transfer named in the official lists of stations of these carriers. Our conclusion is that the route specified was not available. The above tariff published a switching charge of $1.50 per car from Willow Grove to the connection of the Baltimore & Ohio and Pennsylvania at Preble Avenue, Pa., and the Pennsylvania published a commodity rate of $1.01 per net ton, minimum 50,000 pounds, STANDARD HARDWOOD LUMBER Submitted December 3, 1928. Deci Shipments of lumber, in carloads, from points nois, milled in transit at Buffalo, N. Y., and Pa., found misrouted. Rates charged foun movement. Reparation awarded. M. G. Braven for complainant. Ed. A. Niel and Chas. R. Webber for d DIVISION 3, COMMISSIONERS AITCHISO BY DIVISION 3: This case was presented under the shor tions were filed by complainant and one of proposed by the examiner. Our conclusions mended by him. Complainant, a corporation dealing in l alleges by four complaints, two filed Janua January 26, 1928, that certain shipments originating or treated as originating at Arkansas City, Ark., Seymour, Ind., and M June 4, 1925, and February, 1926, inclusiv Buffalo, N. Y., and forwarded to East Pit routed and overcharged subsequent to arriv tion only is sought. The shipments were del to January 26, 1926. Rates will be stated in a except as otherwise noted. One of the defendants urges that misrout alleged and offered no evidence as to that O plaints in substance state that complainant v rate and that if the shipments "moved in acc on bill of lading," complainant "would have 1 This report also embraces No. 20541 (Sub-No. 1), Standa pany v. Pennsylvania Railroad Company et al.; No. 20541 ( and No. 20541 (Sub-No. 3), Same v. Same. 21270 ES, INCORPORATED, ET AL. v. COAD COMPANY ET AL. 9. Decided August 15, 1929 nnessee Railroad Company to place empty to perform transportation service on coal, connection of mine road and the carrier, reasonable, unduly prejudicial, and to have ant. Defendant required to perform the pay an allowance to complainant. Repa k E. Brown for complainants. ller, and G. Kibby Munson for Tend Fred H. Behring for Southern its. THE COMMISSION AITCHISON, TAYLOR, AND PORTER fendant Tennessee Railroad to the er, to which complainants replied. proposed only with respect to the 928, names as those seeking relief orated, and Wakenva Coal Com1, 1928, the rights, interests, and med company were sold to the ed therein was a single-track nonfter called the mine road, about e been operated by the latter come with the right of way of the or Roach Creek Junction, Tenn., e issues relate only to situations 21, 1928. Roach Creek Coal no interest in this proceeding. akenva Coal Company, herein from that point to East Pittsburgh. The tariff publishing this rate was subject to the combination rule. All of the shipments were turned over to the Baltimore & Ohio at Willow Grove by the Buffalo, Rochester & Pittsburgh. The transfer billing issued by the latter carrier at that point covering one of the shipments contained routing instructions in conformity with those shown in the bills of lading. The routing instructions shown on the transfer billing covering the three remaining shipments were as follows: "B & O PRR Dely". As indicated, the shipments moved over the Baltimore & Ohio from Willow Grove to Bessemer, thence over the Pennsylvania to destination. Obviously the shipments were misrouted. The Buffalo, Rochester & Pittsburgh having received the shipments on bills of lading containing routing instructions that were imposible of execution, it became the duty of that carrier to obtain further and more specific routing instructions from the shipper. Nebr. Bridge Supply & Lumber Co. v. C., N. O. & T. P. Ry. Co., 136 I. C. C. 146, 147. Instead of following this course it turned the shipments over to the Baltimore & Ohio, as indicated above. The Buffalo, Rochester & Pittsburgh was therefore responsible for the misrouting and is liable for any damages resulting therefrom. We find that the rates charged were applicable over the route of movement, that the shipments were misrouted, that complainant made the shipments as described and paid and bore the charges thereon, that it was damaged as a result of the misrouting in the amount of the difference between the charges paid and those which would have accrued if the shipments had moved via Preble Avenue, and that it is entitled to reparation, with interest, from the Buffalo, Rochester & Pittsburgh. Complainant should comply with Rule V of our Rules of Practice. 157 I. C. C. |