No. 21861

BUILDERS' ASSOCIATION OF KANSAS CITY, MO., INCORPORATED, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL.

Submitted July 15, 1929. Decided September 17, 1929

Rate charged on shipments of brick, in carloads, from Chanute, Kans., to Parkville, Mo., found not unreasonable. Complaint dismissed.

H. E. Brown for complainant.

Walter McFarland, Kenneth F. Burgess, and R. S. Outlaw for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, AND FARRELL BY DIVISION 5:

This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner. Our conclusion differs from that proposed by him.

The Builders' Association of Kansas City, Mo., Incorporated, a voluntary association of building-material dealers, filed this complaint, which was originally received on November 15, 1928, on behalf of one of its members, the Coen Building Material Company (now merged with the Steward Sand & Material Company). It is alleged that the rate charged on four carloads of brick shipped between January 6 and March 12, 1927, from Chanute, Kans., to Parkville, Mo., was and is unreasonable, unjustly discriminatory, and unduly prejudicial. As the evidence was confined to the allegation of unreasonableness, that issue alone will be considered. A rate for the future and reparation are sought. Rates will be stated in amounts per 100 pounds.

Other than being described as common brick, there is no evidence as to the character or packing of the commodity herein considered. The shipments, aggregating 257,600 pounds, moved over the Atchison, Topeka & Santa Fe to Kansas City, and thence over the Chicago, Burlington & Quincy to destination, a total distance of 135.5 miles. Charges were collected based upon a through brick commodity rate of 11.5 cents, which was and is applicable. Complainant seeks a rate of 8.5 cents.

The contemporaneous rate on face brick and other articles in the uniform brick list from Chanute to Parkville was and is 11.5 cents.

Complainant contends that the rate charged was and is unreasonable to the extent it exceeded and exceeds 80 per cent of the uniform bricklist rates, and cites National Paving Brick Mfrs. Asso. v. A. & V. Ry. Co., 68 I. C. C. 213, hereinafter called the General Brick case, wherein for the territory east of the Rocky Mountains we prescribed rates 80 per cent of the contemporaneous rates on articles in the uniform brick list for application on common brick for distances not in excess of 150 miles.

In Southwestern Brick Cases, 107 I. C. C. 681, however, there was under consideration, inter alia, the particular type of brick produced in southeastern Kansas, which presumably would include the commodity manufactured at Chanute, the origin here concerned, and it was found, at page 692:

From a careful consideration of the evidence on this subject including the exhibited samples, it is our conclusion that the so-called common brick moving in interstate commerce in the Southwest is not, generally speaking, of the character intended to be covered by the definition of common brick in the General Brick case, and that on such traffic there should be no difference in rates on common brick and on other commodities in the uniform brick list.

On further hearing the commission recently affirmed the foregoing finding, 156 I. C. C. 191, 200. In view of foregoing of the absence of testimony as to the exact nature and packing of the brick under consideration, and of the fact that practically the entire haul here concerned was within territory considered in Southwestern Brick Cases, supra, complainant's contention lacks support. Defendants, to show that the rate asssailed was not unreasonable, instance brick rates contemporaneously in effect from Chanute to certain destinations in Missouri, which were and are on a level with the rate under consideration. Although complainant refers to a rate of 9 cents applying on common brick from Chanute to Liberty, Mo., 142.4 miles, the assailed rate is 0.5 cent less than the joint-line distance rate for 135.5 miles, the distance herein considered, prescribed by division 3 in Oklahoma Clay Products A880. v. A., T. & S. F. Ry. Co., 80 I. C. C. 278, for application on brick from Oklahoma points to destinations in Kansas, and is but 0.5 cent greater than the joint-line rate prescribed for the same distance in Southwestern Brick Cases, supra. The rate assailed also compares favorably, bearing in mind the different territory concerned, with the 10.5-cent rate prescribed on brick for a comparable distance in Mason City Brick & Tile Co. v. Director General, 107 I. C. C. 702, for application inter alia, from points in Iowa to destinations in Minnesota.

We find that the rate assailed was and is not unreasonable. The complaint will be dismissed.

No. 21.574

SIOUX CITY BRICK & TILE COMPANY v. CHICAGO & NORTH WESTERN RAILWAY COMPANY ET AL.

Submitted July 10, 1929. Decided September 21, 1929

Rate charged on brick, in carloads, from Springfield, Ill., to Redfield, S. Dak., found inapplicable. Applicable rate found unreasonable. Reparation awarded.

H. C. Wilson for complainant.

H. G. Powell and J. E. Flansburg for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEWIS, BRAINERD, AND FARRELL

BY DIVISION 5:

This case was presented under the shortened procedure. No exceptions were filed to the report proposed by the examiner.

Complainant, a corporation, by complaint filed October 1, 1928, alleges that the rate charged on two carload shipments of brick from Springfield, Ill., to Redfield, S. Dak., October 26 and November 3, 1926, was unreasonable. Reparation only is sought. Rates will be stated in cents per 100 pounds, unless otherwise noted.

The shipments originated on the Illinois Traction System and moved thereover to Peoria, Ill., thence Chicago & North Western, 749 miles. Charges were collected on the basis of a combination rate of 24.5 cents, made up of 12 cents from Springfield to Minnesota Transfer, Minn., and 15 cents beyond, less 2.5 cents as authorized by the so-called combination rule in Agent Jones's tariff I. C. C. No. U. S. 1. Contemporaneously there was in effect a joint rate of $5.67 per net ton from St. Louis, Mo., to Redfield, and the tariff provided that "directly intermediate stations to or from which specific rates are not provided herein will take the rate named to or from the next more distant stations shown herein." Springfield is directly intermediate to St. Louis on shipments destined to Redfield, and undercharges therefore exist. Complainant seeks reparation to the basis of a 23-cent rate which was established on September 30, 1927, following Mason City Brick & Tile Co. v. Director General, 107 I. C. C. 702.

The shipment of October 26 was routed "C/o C&NW", whereas that of November 3 was routed "C/o C&NW Delivery." Complainant concedes that the applicable rate on the first shipment was

$5.67 per net ton, but contends that this rate was unreasonable. On the second shipment misrouting is alleged, because over other routes lower rates applied and where terminal delivery only is shown in the bill of lading it is the duty of the carriers to forward the shipment to the destination named by the cheapest reasonable route affording the desired delivery. Trexler Lumber Co. v. S. Ry. Co., 42 I. C. C. 719. However, because of our finding it will not be necessary to consider this phase of the case.

There were also contemporaneously in effect lower combination rates by various routes over which no joint rates applied, and some of these, taken from complainant's memorandum of facts, are as follows:

The route via Peoria over the Minneapolis & St. Louis to Merriam, thence Chicago & North Western to destination, 816 miles, over which the 24-cent rate applies, parallels for a considerable distance the route of movement.

As additional evidence of the unreasonableness of the $5.67 rate complainant relies on the fact that it is in excess of the aggregate of intermediate rates, contrary to the provisions of section 4 of the interstate commerce act, there being a rate from Springfield to Mason City of 12 cents and a rate of 16 cents beyond, or $5.60 per net ton. If the combination rule were applied to this rate it would be reduced to $5.10 per net ton. The product of intermediate rates treated by a rule which results in something less than the aggregate is not the aggregate within the meaning of section 4. McLeod v. T. & P. Ry. Co., 120 I. C. C. 550. However, the sum of the intermediates, without the application of this rule, was less than the $5.67 rate.

The investigation which resulted in the 23-cent rate embraced a general revision of rates on brick in Illinois, Iowa, southwestern Minnesota, Nebraska, and eastern South Dakota; no finding was made

as to the past, and the instant record does not warrant a retroactive effect to be given to the rates prescribed in that case.

Defendants offer no defense, contenting themselves with a reference to the general revision in Mason City Brick & Tile Co. v. Director General, supra, and to the fact that reparation does not necessarily follow the subsequent establishment of a reduced rate. The fact that a 24-cent combination rate was contemporaneously in effect over a practical and reasonable route for a greater distance than the route of movement would seem to indicate it to be the basis of a reasonable charge for complainant's shipments.

Complainant, located at Sioux City, Iowa, purchased the brick from the Poston Brick Company, at Springfield, and ordered them consigned to the State School and Home at Redfield. The freight charges thereon were paid by the consignee and deducted from invoices rendered by complainant. The shipper, the Poston Brick Company, assigned its interest, if any it had, in the freight charges assessed upon these shipments to the complainant. This had the effect, not only of foreclosing the Poston Brick Company from asserting any interest which it might otherwise have claimed, but of relieving the complainant from any necessity for making said company a party to this proceeding. The finding which is hereinafter made is predicated upon the fact that the real consignor, and therefore the real party in interest, was and is the complainant herein, for whom the consignee paid the charges.

We find that the applicable rate on the shipments here considered was $5.67 per net ton, and that it was unreasonable to the extent that it exceeded 24 cents; that the shipments were made as described and complainant paid and bore the charges thereon based on a rate of 24.5 cents; that it was damaged thereby in the amount of the difference between the charges collected and those which would have accrued at the rate herein found reasonable; and that it is entitled to reparation in the amount of $10.62, with interest. Collection of the outstanding undercharges may be waived.

An appropriate order will be entered.

157 I. C. C.