112 F. 487 (E.D.Pa. 1902), 38, Lehigh Valley R. Co. v. Rainey

Docket Nº:38.
Citation:112 F. 487
Party Name:LEHIGH VAL. R. CO. v. RAINEY et al.
Case Date:January 04, 1902
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 487

112 F. 487 (E.D.Pa. 1902)

LEHIGH VAL. R. CO.

v.

RAINEY et al.

No. 38.

United States Circuit Court, E.D. Pennsylvania.

January 4, 1902

Francis I. Gowen, for plaintiff.

C. Andrade, Jr., for defendant.

J. B. McPHERSON, District Judge.

A reconsideration of this case has failed to change my opinion that the court was justified in directing a verdict in favor of the plaintiff. For present purposes it

Page 488

must be assumed that the rate complained of was discriminating, but I still think that a mere paper rate, which is never carried into effect, and is therefore simply a proposition to carry for a specified sum, is not such a violation of the interstate commerce act as to prevent the carrier from recovering freight from other than the theoretically favored shippers. It is discrimination in fact, and not a mere intention to discriminate, that is punishable; and in the case before the court there was no evidence that a pound of coal had been carried to be sold in the market by any other shipper than the defendants. Hence no rival of the defendants was benefited by the unaccepted rate, and no harm was done to their business.

It did appear, however, that coal was carried by the plaintiff from the disputed point of shipment for use in its own engines; this coal having been mined by the Lehigh Valley Coal Company, which was clearly proved to be the Lehigh Valley Railroad Company in another dress. The identity of interest between the two corporations was so plain that it seemed idle to question it, so far as its practical effect upon the matter...

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