No. 21813

EDWARD FLOR COMPANY v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY ET AL.

Submitted July 3, 1929. Decided September 4, 1929

Carload of saddle trees, saddlery hardware, wooden patterns, paper patterns, and "iron forms" from Jefferson City, Mo., to Demorest, Ga., found undercharged. Complaint dismissed.

Abner Pollack for complainant.

Wayne W. Wolford and William F. Hardeman for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3:

No exceptions were filed to the report proposed by the examiner. Complainant, a copartnership composed of O. E. Flor and the estates of Edward Flor and H. E. Flor, manufacturing wooden saddle trees, cart trees, and gig trees at Demorest, Ga., under the name of Edward Flor Company, by complaint filed December 17, 1928, as amended, alleges that the charges collected on a shipment in M-K-T car 65489, billed as 35,860 pounds of scrap iron and 21,960 pounds of saddle trees, shipped February 14, 1925, from Jefferson City, Mo., to Demorest, delivered February 25,.1925, were inapplicable. Reparation only is sought. Informal complaint was filed with the delivering line in July, 1927, declined by it January 25, 1928, and filed with us June 12, 1928. Complainant was advised on July 5, 1928, that the complaint was not susceptible of informal adjustment. Rates will be stated in amounts per 100 pounds unless otherwise specified.

The shipment moved over the Missouri-Kansas-Texas to St. Louis, Mo., thence over the Southern to Cornelia, Ga., thence over the Tallulah Falls to destination. Charges of $884.67 were collected at destination, composed of $81.73 on the articles billed as scrap iron and $802.941 on the articles billed as saddle trees.

The shipment was purchased at a bankruptcy sale for $1.000. Complainant's only witness apparently knew little or nothing about the details of the transaction. It appears, however, that complainant purchased the material with a view to using it in the manu

1 The record does not disclose the rates used in arriving at these charges.

facture of saddle trees, but found on inspection that little or none of it, except certain hardware hereinafter more specifically referred to, could practically be so used in complainant's factory.

Complainant contends that the articles billed as scrap iron were properly so billed, but that those billed as saddle trees were in fact junk lumber, and that charges of $507.48 should have been collected, composed of $3122 on the articles billed as scrap iron and $195.48.* on the other articles.

A traveling supervisor for the Southern Weighing & Inspection Bureau inspected the shipment at destination in June, 1925, and again in September, 1927. The following table shows the articles which the supervisor found comprised the shipment, together with the weights thereof, and the classification descriptions, ratings, rates, and charges which defendants claim were applicable:

The shipment moved in a 40-foot 9-inch car.

Factor west of Cairo, Ill., governed by western classification and factor east of Cairo by southern clas“ fication. Composed of rates of 43 cents to Cairo, Ill., 81.5 cents from Cairo to Cornelia, and 12.5 cents beyond. Composed of rates of $1.735 to Cairo, $2.365 from Cairo to Cornelia, and 30 cents beyond. Composed of rates of $1.155 to Cairo, $1.575 from Cairo to Cornelia, and 20 cents beyond. Composed of rates of $1.735 to Cairo, $2.365 from Cairo to Cornelia, and 30 cents beyond. Composed of rates of $3.485 to Cairo, $4.725 from Cairo to Cornelia, and 60 cents beyond.

A representative "iron form for lathe machines", an exhibit in this case, is irregular in shape and about 16.5 inches long, from 2.5 to 4 inches wide, and from 1 to 1.5 inches thick, and weighs about 12 pounds. It has a hole in each end, one being round and

*Based on a combination rate of 78 cents, minimum 40,000 pounds, composed of a class D rate of 17 cents to St. Louis, a commodity rate of 53 cents from St. Loute to Cornelia, and a sixth-class rate of 8 cents beyond.

*Based on a combination lumber rate composed of a commodity rate of 14 cents minimum 34,000 pounds to St. Louis, a commodity rate of 47 cents, minimum 30,000 pounds, from St. Louis to Cornelia, and a class P carload rate of 7.88, minimum 24,000 powds. beyond.

tapering, and the other rectangular, which indicates that the article fits into a lathe. The record also indicates that these forms are used in the manufacture of saddle trees. The record does not disclose the name under which this article is known to the trade nor exactly how it is used. While it seems clear that the article can not be considered scrap iron, the record is not sufficiently definite to support a positive finding on the question of classification thereof. In other words, it can not be determined upon this record whether the article falls within the classification description set forth in the above table or some other classification description. However, the record warrants the conclusion that the other articles in the shipment were ratable as indicated in the above table.

As the saddlery hardware was shipped in bags, those articles were properly rated at one and one-half times first class, under rule 5, section 3-d of the classification, i. e., three classes higher than when shipped in barrels or boxes.

The shipment included approximately 1,500 saddle trees, a large number of which were in good condition when inspected by the supervisor and none had lost their identity as saddle trees. Most of them had iron horns attached, and about 10 per cent were covered with rawhide.

With each wooden pattern packed in the 26 boxes was a paper pattern of the same size. Under rule 12, section 8 of the classification, the rating provided for the highest classed article, i. e., wooden patterns, also applied to the paper patterns.

As the 200 wooden patterns were shipped loose, they were subject under rule 5, section 3-d, to a rating three classes higher than when shipped in boxes or crates.

The charges applicable on the saddle trees, saddlery hardware, and patterns are those shown in the above table. While it is impossible upon this record to determine the charges applicable on the so-called iron forms, it is plain that there is an undercharge in any case, as the aggregate charges collected were less than those accruing under the tariffs on the saddle trees, hardware, and patterns alone. We make no suggestion as to the collection of the undercharge, as such collection is now barred by the statute of limitations.

We find that the shipment was undercharged. The complaint will be dismissed.

157 L. a. a

No. 21817

MAY COMPANY v. READING COMPANY ET AL.

Submitted June 17, 1929. Decided September 4, 1929

Charges collected on shipment of floral designs from Philadelphia, Pa., to Cleveland, Ohio, found not unreasonable or otherwise unlawful. Complaint dismissed.

G. H. Dilla for complainant.

D. T. Lawrence and W. S. Flint for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER

BY DIVISION 8:

This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the

examiner.

Complainant, a corporation, is a retailer of merchandise at Cleveland, Ohio. By formal complaint originally received November 17, 1928, subsequent to the filing of informal complaint on February 20, 1928, it alleges that the charges collected on a shipment of floral designs, which moved during November, 1926, from Philadelphia, Pa., to Cleveland were and are unreasonable, unjustly discriminatory, and unduly prejudicial. Reasonable rates for the future and reparation are sought. Rates will be stated in cents per 100 pounds. The shipment consisted of 89 wooden cases and 122 fiber-board cartons and weighed 27,710 pounds. It was loaded by the originating carrier and required the use of four box cars, except that one case was forwarded separately in a car containing other freight. The distance over route of movement is 607 miles. Charges in the sum of $526.49 were collected at the applicable rate of $1.90, based on the official classification rating of double first class, any quantity, on "Floral designs, made of other than fresh flowers or foliage, in boxes."

Complainant does not attack the double first-class rate as such. Its allegations and unlawfulness as disclosed by the evidence are directed against the classification rating on floral designs. It contends that these commodities were and are entitled to a carload rating of first class, minimum 10,000 pounds, and seeks reparation in the sum of $263.24, the difference between the charges paid and

those which would have accrued based on the first-class rate of 95 cents applied to the aggregate weight of the shipment.

In support of its contention that floral designs, in carloads, should be accorded the rating above mentioned complainant merely points out that a carload rating of first class, minimum 10,000 pounds, was established June 30, 1928, on artificial flowers or foliage, n. o. i. b. n.. which it states have a value and loading density approximately the same as floral designs, and that a carload rating of second class, minimum 16,000 pounds, was contemporaneously in effect on preserved natural foliage or leaves used for decorations. It submitted no evidence, however, as to the nature, value per pound, loading density per cubic foot, or other classification characteristics of any of the commodities named. Manifestly a mere statement that certain other commodities, which may or may not be similar in some respects to floral designs, are accorded a lower rating, in carloads, affords no basis for determining whether or not floral designs are entitled to the rating sought.

The record will not support a finding that the charges collected were unreasonable or otherwise unlawful. The complaint will be dismissed.

157 I. C. C