Spence v. Baltimore & Ohio Railroad Company, 15489.

• Decision Date: 15 June 1966
• Docket Number: No. 15489.,15489.
• Citation: 360 F.2d 887
• Parties: J. W. SPENCE, doing business as Geff Seed and Grain Co., Plaintiff-Appellee, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

360 F.2d 887 (1966)

J. W. SPENCE, doing business as Geff Seed and Grain Co., Plaintiff-Appellee, v. The BALTIMORE & OHIO RAILROAD COMPANY, a corporation, Defendant-Appellant.

No. 15489.

United States Court of Appeals Seventh Circuit.

May 18, 1966.

Rehearing Denied June 15, 1966.

Hugh J. Graham, III, Graham & Graham, Springfield, Ill., for appellant.

Leonard S. Goodman, Asst. Gen. Counsel, Interstate Commerce Commission, Washington, D. C., Robert W. Ginnane, General Counsel, Interstate Commerce Commission, Washington, D. C., amicus curiae.

Gerald T. Quindry, Fairfield, Ill., Leslie N. Jones, Flora, Ill., Marshall, Feiger, Robison & Quindry, Fairfield, Ill., Leslie N. Jones, Flora, Ill., for appellee.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

KNOCH, Circuit Judge.

This appeal has been taken from temporary restraining order and temporary injunction order of the United States District Court directing the defendant, The Baltimore & Ohio Railroad Company, to provide the plaintiff, J. W. Spence, doing business as Geff Seed and Grain Co., with sufficient, but not less than eight, boxcars daily for hauling soybeans from plaintiff's elevator at Geff, Illinois.

In his complaint, the plaintiff alleged that the defendant was discriminating against the plaintiff in failing to provide plaintiff with sufficient cars for timely removal of the perishable grains in plaintiff's elevator to the plaintiff's irreparable loss through deterioration of overlong stored produce, inability to meet customary delivery dates, or to accept new grain offered for storage by plaintiff's customers.

The temporary restraining order was issued October 13, 1965, without notice or hearing. On October 18, 1965, the defendant moved to dissolve the temporary restraining order for want of jurisdiction in the U. S. District Court. A hearing was held at which evidence was adduced that plaintiff's elevator bins were filled to capacity, so that he had to refuse tenders of additional produce for storage; that the stored soybeans would lose value unless removed; that plaintiff's elevator has been receiving steadily poorer service from defendant over the past fifteen years primarily because of failure by defendant to replace worn out cars, about 1000 damaged or otherwise obsolete boxcars having accumulated unrepaired over the years at Flora, Illinois, with about 600 junked in this territory in the past few years; that the elevator in which plaintiff has invested about $200,000 is now of doubtful value; that the defendant does not have enough cars to meet the demands of the plaintiff and those of the other 53 elevators located on the lines of the defendant railroad between Cincinnati, Ohio, St. Louis, Missouri, Beardstown, Illinois, and Shawneetown, Illinois.

The District Judge found that:

5. Defendant\'s failure and refusal to furnish said cars for loading and transportation results from the failure and refusal of defendant to repair the cars belonging to it available and appropriate for the purpose of transportation of said soybeans; the cars belonging to defendant available and appropriate for such purpose have deteriorated to the point where they are no longer appropriate for the purpose of defendant; and defendant has failed and refused, and continues to fail and refuse to either: (a) repair said cars and make them appropriate for said purpose, or (b) to acquire other cars for that purpose.

* * * * * *

8. Defendant\'s testimony in open court discloses that in the territory here involved (i. e., the St. Louis Division of said defendant), approximately 1,000 boxcars appropriate for the purpose herein described, have deteriorated to the extent that they are no longer usable for such purposes. It further shows that defendant has neither made any repairs to said cars to render them usable, nor has it acquired other appropriate cars in lieu thereof. Such testimony discloses no plan or program of the defendant either to repair said cars or to acquire others. As a consequence, the ability of defendant to discharge its obligation to furnish adequate transportation is critically impaired, and will continue further to decline.

The District Court concluded that:

3. It is the duty of defendant to provide safe and adequate transportation to plaintiff upon reasonable notice, and defendant is not excused from that obligation by failing and refusing to repair its cars appropriate thereto, or failing and refusing to acquire and furnish other cars in lieu thereof.

4. Plaintiff, as a matter of law, is entitled to the Preliminary Injunction prayed for under the facts alleged to in the verified Complaint, the verified Motion for Preliminary Injunction, and testimony heard in open court.

An Order for Preliminary Injunction issued November 1, 1965, directing defendant as follows:

That you forthwith furnish Plaintiff with sufficient boxcars, at his Elevator at Geff, Illinois, of a type to properly haul soy beans and protect same against rain and inclement weather, to remove all soy beans now located in Plaintiff\'s Elevator at Geff, Illinois, together with all soy beans purchased by him in due course of business and offered for shipment while the soy beans in the Elevator are being removed, said boxcars to be furnished at the rate of not less than eight (8) daily; unless a lesser number is requested by Plaintiff, and to remove the filled cars the next time Defendant\'s train makes a trip past Plaintiff\'s Elevator and not later than the following day and to replace the filled cars on Plaintiff\'s railroad siding with empty cars. That you instanter cease failing and refusing to furnish Plaintiff a sufficient amount of boxcars of a type proper to haul soy beans and protect same against rain and inclement weather, to remove all soy beans now located in his Elevator at Geff, Illinois, together with all soy beans purchased by him in due course of business and offered for shipment while the soy beans in the Elevator are being removed, and to cease instanter to fail, refuse and neglect to furnish Plaintiff at his Elevator at Geff, Illinois, said boxcars at the rate of not less than eight (8) daily, unless a lesser number is requested by Plaintiff, and to remove the filled cars the next time Defendant\'s train makes a trip past Plaintiff\'s Elevator and not later than the following day and to replace the filled cars on Plaintiff\'s railroad siding with

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