Atchison, T. & S.F. Ry. Co. v. Spiller

Decision Date26 October 1917
Docket Number4819.
Citation246 F. 1
PartiesATCHISON, T. & S.F. RY. CO. v. SPILLER. [1]
CourtU.S. Court of Appeals — Eighth Circuit

[Copyrighted Material Omitted]

T. J Norton and Gardiner Lathrop, both of Chicago, Ill. (Robert Dunlap, of Chicago, Ill., Thomas R. Morrow, of Kansas City Mo., J. W. Jamison and C. S. Burg, both of St. Louis, Mo., and R. V. Fletcher and W. F. Dickinson, both of Chicago, Ill., on the brief), for plaintiffs in error.

B. F. Deatherage, of Kansas City, Mo., and S. H. Cowan, of Ft. Worth, Tex. (I. H. Burney, of Ft. Worth, Tex., and G. Creason, of Kansas City, Mo., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

CARLAND Circuit Judge.

Defendant in error, hereafter called 'plaintiff,' commenced an action against the several plaintiffs in error, hereafter called 'defendants,' to recover from each of them the amount awarded plaintiff by an order of reparation made by the Interstate Commerce Commission January 12, 1914. A count for treble damages under Act July 2, 1890, c. 647, 26 Stat. 210, and Act Aug. 27, 1894, c. 349, 28 Stat. 509, 570, was abandoned at the trial. By stipulation a jury was waived and the cases against the Atchison, Topeka & Santa Fe Railway Company and the Missouri, Kansas & Texas Railway Company were tried to the court. The trial resulted in a judgment for plaintiff against each defendant for the amount of the award against it with interest and attorneys' fees. A similar judgment was subsequently entered in the cases not tried. The total amount of the judgments aggregated $181,190.87. Each defendant sued out a writ of error from the judgment against it, but by stipulation the cases are to be heard here on the record in the case of the Atchison, Topeka & Santa Fe. At the close of all the evidence the trial court was requested by counsel for defendants to declare the law as follows: (a) That upon all the evidence plaintiff was not entitled to recover against any or all of the defendants; (b) that there was not sufficient evidence before the commission to sustain its order of reparation.

At the trial the plaintiff to maintain the issues on his part introduced in evidence the report and order of the commission, dated January 12, 1914, in the case of Cattle Raisers' Ass'n of Texas v. Missouri, Kansas & Texas Ry. Co., No. 732 (not reported No. A-583). The order of reparation covered a period of time extending from August 29, 1906, the date when the commission received the ratemaking power, under the Hepburn Amendment, to November 17, 1908, the date fixed by the commission when certain reduced rates should take effect. The commission had on August 16, 1905, in case No. 732, entitled as above, found that the rates established by the carriers for the transportation of cattle from certain points of origin in Texas, New Mexico, and Oklahoma to Kansas City, St. Joseph, and St. Louis, Mo., National Stockyards, Chicago, Ill., New Orleans, and other points, were unjust and unreasonable and in violation of section 1 of the Act to Regulate Commerce (11 Interst.Com.Com'n R. 298). After the taking effect of the Hepburn Amendment upon new pleadings the commission adhered to its former ruling and established rates for the future, effective November 17, 1908 (13 Interst.Com.Com'n R. 418). The report of the commission which was made a part of the reparation order had attached thereto appendix A, with the following heading:

------------------------------------------------------------------------

Rate Rate Amount

Consignor Origin Destination Cars Weight Paid Ordered of Refund Interest

------------------------------------------------------------------------

The information contained in this appendix is explained by the report of the commission, which reads as follows:

'Prouty, Commissioner. The commission, in its former report in this case, 13 I.C.C. 418, 435, stated that reparation would be awarded from August 29, 1906. Claims for reparation were filed with the commission covering shipments both before and after this date, but no claims are embraced in this report where delivery was made previous to the date above given.
'These claims, as filed with the commission, describe in detail the shipments on account of which reparation is claimed, stating the point of origin and the point of delivery and the carrier making the delivery. By the direction of the commission, a list of the cars with respect to which claims have been filed was furnished to each one of these delivering lines, which was requested by the commission to check the claims against their records with a view to ascertaining how many of the cars moved as appeared from the records of the defendants. These claims have been checked by these delivering roads, and no carloads are embraced in this report which did not appear from the records of the defendants to have moved as stated.
'In all cases in this report the point of origin, the point of delivery, and the delivering road are named. The complainant has no way of determining the originating carrier, where the point of origin is served by two or more carriers, nor the intermediate carrier, where such a carrier participated in the transportation.
'These shipments of live stock were in all cases consigned to some person at the delivering market, usually a commission firm. The consignor paid the freight in the first instance to the delivering carrier in all cases. Subsequently the cattle were sold upon the market and the amount of the freight deducted from the purchase price, remittance being made for the balance. In all cases, therefore, the owner and shipper of the cattle finally paid the transportation charges.

'The table attached to and made a part of this report, as appendix A, shows with reference to all shipments whose movement was admitted by the defendants the point of origin, the point and road of delivery, the rate of freight which was paid, the rate which should have been paid, and the difference between the amount of freight which was paid and the amount which should have been paid. In some cases the weight of the shipment did not appear, and in all such instances the minimum carload has been applied, since under their tariffs, the carriers must have collected at least upon the minimum.

'Referring to appendix A, we find that the persons named in the column marked 'consignor' shipped from the points named in the column marked 'origin' to the points named in the column marked 'destination,' by the line of road named as the 'delivering road,' the number of cars specified in the column headed 'number of cars,' of the aggregate net weight stated in the column marked 'weight.' We further find that said shippers paid to said delivering carriers freight upon these shipments at the rate which is named in the column headed 'rate paid.' We find that this rate was unreasonable and excessive and that a reasonable rate to have been charged on the several shipments at the time they were made would have been that rate named in the column marked 'rate ordered,' which was subsequently established by the commission, and that therefore the said delivering carriers collected from the said shippers unreasonable charges on account of the shipments by the amounts named in the column headed 'amount of refund.' We further find that by these unreasonable exactions of the said carriers the said shippers were damaged in the amounts stated in said last-named column, since they received for their cattle less by those amounts than they would have received had the rate found reasonable been charged, and that said shippers are entitled to reparation in the amounts so specified, with interest from the date of the delivery of the shipment at 6 per cent., which said interest has been computed and is stated in the column marked 'interest.'

'In case of certain of the above claims the shipper made an assignment to H. E. Crowley, at that time secretary of the Cattle Raisers' Association. The form of this assignment was the same in all cases, and was as follows:

"In consideration of one dollar to me in hand paid by H. E. Crowley, secretary, as well as other considerations good and valuable to me, I hereby transfer and assign to him absolutely, any and all right of action, claims, or demands which I now have, or may hereafter have, against each and every railway company over whose railroad I have shipped any cattle, for reparation or reimbursements on account of any excessive, unreasonable, discriminatory, or otherwise unlawful or unjust freight rates or other charges which I have paid to such railway company on such shipments, as per schedule of said shipments hereto attached.
"Having assigned my said claim as aforesaid, I also delegate to said H. E. Crowley, secretary, full authority in establishing said claim to collect data and evidence in relation thereto from all commission companies, persons or firms as if I were personally present and acting in the premises.

"Witness my signature hereto.

"(Post office address.)

(Sign here.)'

'We find that this assignment was made by the shipper in all cases where, in appendix A, the name of such shipper is followed by the letter 'C.' Subsequently Crowley ceased to be secretary of the Cattle Raisers' Association and was succeeded by E. B. Spiller, and thereafter the shippers assigned certain other claims to Spiller. The form of assignment used was in all cases the same as that which had formerly been employed in making the assignment to Crowley. We find that those shippers whose names are followed by the letter 'S' made assignments in this manner to Spiller.

'After Crowley ceased to be secretary of the Cattle Raisers' Association he assigned all claims which had previously...

To continue reading

Request your trial
6 cases
  • Spiller v. St. Louis & SFR Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 24, 1926
    ...over by the receivers to the reorganized Railway Company largely in excess of the claims of interveners. October 29, 1917, this court (246 F. 1) reversed the judgment of the District Court of the United States for the Western Division of the Western District of Missouri, and remanded the ca......
  • Penn Anthracite Mining Co. v. Delaware & HR Corp.
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • October 20, 1936
    ...59 L.Ed. 644, Ann. Cas.1916B, 691, but the lower federal courts are not in unanimity upon this question. Cf. Atchison, T. & S. F. Ry. Co. v. Spiller, 246 F. 1, 21 (C.C.A.8), reversed on other grounds 253 U.S. 117, 40 S.Ct. 466, 64 L. Ed. 810; Blair v. Cleveland, C., C. & St. L. Ry. Co. (D.C......
  • GLENS FALLS PORTLAND C. CO. v. Delaware & Hudson Co.
    • United States
    • U.S. District Court — Southern District of New York
    • February 8, 1932
    ...taken before the Commission is introduced by one of the parties before a court on plenary hearing. Cf. Atchison, T. & S. F. Ry. Co. v. Spiller, 246 F. 1, 6-16 (C. C. A. 8). As the New Haven has denied that the rates charged by it to the petitioner were unreasonable or improper, and also has......
  • Glens Falls Portland C. Co. v. Delaware & Hudson Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 1933
    ...59 L. Ed. 644, Ann. Cas. 1916B, 691, but the lower federal courts are not in unanimity upon this question. Cf. Atchison, T. & S. F. Ry. Co. v. Spiller, 246 F. 1, 21 (C. C. A. 8), reversed on other grounds 253 U. S. 117, 40 S. Ct. 466, 64 L. Ed. 810; Blair v. Cleveland, C., C. & St. L. Ry. C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT