Chicago, B. & Q.R. Co. v. Feintuch

• Decision Date: 02 October 1911
• Docket Number: 1,966.
• Citation: 191 F. 482
• Parties: CHICAGO, B. & Q.R. CO. et al. v. FEINTUCH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F. 482

CHICAGO, B. & Q.R. CO. et al. v. FEINTUCH et al.

No. 1,966.

United States Court of Appeals, Ninth Circuit.

October 2, 1911

This is an action instituted under the interstate commerce act, by defendants in error against plaintiffs in error, to recover for reparation in pursuance of an order of the Interstate Commerce Commission directing that the same be made.

The complainant Feintuch, under the name Frankel Display Fixture Company, on December 24, 1906, caused to be shipped, over the Chicago, Burlington & Quincy, Union Pacific, and Southern Pacific Railways, a car load consignment of showcases, 20,900 pounds in weight, from Quincy, Ill., to San Francisco, Cal for which transportation the said defendant railroad companies charged the shipper a rate of $3 per 100 pounds whereas it is claimed by the shipper that $2.20 per 100 pounds is the schedule or lawful rate. On January 3, 1907 Feintuch in like manner made another shipment over the same lines, and a like charge was exacted for the service of transportation. And on December 28, 1907, the complainant Newton Gum Company made a like shipment of showcases, the place of shipment and the destination being the same, over the Chicago, Burlington & Quincy and the Atchison, Topeka &amp Santa Fe Railways, for which transportation a like charge was made to that which Feintuch was required to pay. The complainants, claiming to be injured and damaged by these charges, on September 29th filed their petitions with the Interstate Commerce Commission against said railroad companies, demanding reparation. The commission upon investigation awarded reparation in sums representing the difference between the tariff rate of $3 on 100 pounds and $2.20 on 100 pounds. The defendants refusing to grant the reparation, although directed so to do by the commission, the complainants instituted the present action in the Circuit Court to recover against the defendants the amount of reparation ordered to be made by the commission. The complaint states the fact of shipment, the charges exacted the rate claimed to be the lawful rate, the difference between that and the rate charged, the fact of petitioning the Interstate Commerce Commission for reparation, the report of the commission in toto, the order of reparation, the further fact of service of the order upon the defendant companies, and the defendants' refusal to comply with the same. An attorney's fee of $150 is demanded in addition to the damages claimed.

A demurrer to the complaint being overruled, trial was had before the court (a jury having been waived), resulting in a judgment favorable to complainants, from which the defendants prosecute this writ of error.

George D. Squires and C. W. Durbrow, for plaintiffs in error.

Milton B. Badt, for defendants in error.

Before GILBERT, Circuit Judge, and HANFORD and WOLVERTON, District judges.

WOLVERTON District Judge (after stating the facts as above).

The defendants' fourth contention will be first examined. It is that:

'The commission has no power to award reparation, nor has the court below power to uphold an order for reparation, unless actual injury has been sustained from an omission or failure to observe some requirement of the act, and, in order to recover, pecuniary injury must be shown to entitle the complainant to damages in such a case.'

In other words, it is thought the shipper sustains no injury, unless it be shown that the freight charges imposed are unreasonable and unjust. Under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154)), every common carrier is required to adopt a schedule of rates, and to publish the same for the benefit of the public, so that shippers may be readily informed thereof and enabled to determine for themselves the cost of transportation. It is further explicitly provided that, when any such common carrier shall have established and published its rates, fares, and charges, it shall be unlawful for it to demand, collect, or receive a greater or less compensation for transportation than as specified in the schedule. Section 6, Interstate Commerce Act; 3 Fed.St.Ann. 808, 827 (Act March 2, 1889, c. 382, 25 Stat. 855 (U.S. Comp. St. 1901, p. 3156)). It is the purpose of the act to impose the duty upon carriers of establishing schedules of rates, and, when a schedule has been established, it is rendered unlawful for the carrier to depart from it, except in the manner provided for revising the schedule. Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 Sup.Ct. 350, 51 L.Ed. 553. The first section of the act declares is declared and unreasonable charge for transportation shall be unlawful. So by the second section every unjust discrimination between shippers is declared to be unlawful. The eighth section gives an action in favor of any party injured against any carrier who thus causes or permits to be done anything prohibited or declared to be unlawful by the act. Under section 9 any person injured may complain to the commission. Section 13 authorizes the commission to investigate the matter complained of. Section 14 requires that the commission make report in writing in respect of such matter, which shall include the findings of fact upon which its conclusions are based, together with its recommendation as to what reparation should be made by the carrier to the party found to be injured. By section 15 notice is required to be given to the carrier of the making of such order of reparation, and, if reparation be not made in the time designated, then a statement to that effect is to be entered of record by the commission. And by section 16 the party injured, if reparation be not made as required by the commission, may apply in a summary way by petition to the Circuit Court for relief from such disobedience to the order of reparation. It would seem from these statutes that the commission has power and authority to order reparation for an injury sustained by any party on account of the doing, causing, or permitting to be done anything required by the act on the part of the carrier not to be done, and the question is, Have the plaintiffs sustained any injury within the purview of the act?

The Supreme Court has determined that before any party can recover under the interstate commerce act he must show, not merely the wrong committed by the carrier, but that the wrong complained of operated to the injury of the complainant. Parsons v. Chicago & Northwestern Ry., 167 U.S. 447, 17 Sup.Ct. 887, 42 L.Ed. 231. This was a case where the plaintiff sought to recover for having been unlawfully discriminated against, without showing further that the charges exacted from him were unjust and unreasonable. So it was said, after giving an apt illustration, Mr. Justice Brewer speaking for the court:

'But for the provisions of the interstate commerce act, the plaintiff could not recover on account of his shipments to Chicago, if only a reasonable rate was charged therefor, no matter though it appeared that through any misconduct or partiality on the part of the railway officials shippers in Nebraska had been given a less rate.'

In a more recent case, decided by the Court of Appeals, Eighth Circuit-- Knudsen-Ferguson Fruit Co. v. Michigan Cent. R. Co., 148 F. 968 79 C.C.A. 46-- it was held that, to support an action by a shipper against the carrier, under section 8 of the interstate commerce act, the shipper must show that there has been either some unreasonable or excessive charge imposed, or some unlawful discrimination practiced against him by which he has been pecuniarily injured. In that case icing charges were added, while it was claimed that icing was part of the duty imposed upon the carrier, which should have been taken care of under the ordinary transportation tariff. The court held against the proposition, and observed that the icing charges were properly specified in the schedule of rates.

These authorities do not meet the proposition here involved. The principle is that the carrier has fixed its own rate by filing the required schedule. This then becomes the lawful rate. The rate thus fixed must be deemed to be reasonable unless attacked on the ground that it is unjust and unreasonable. The acceptance of a greater or less rate of charge constitutes an unlawful act. Any shipper injured pecuniarily by the act has his right of action. If less than the schedule rate is exacted, it stands to reason that, while the carrier has violated the provisions of the law, the shipper has sustained no pecuniary loss; but, if the carrier exacts more than the schedule rate, the shipper sustains a loss by the difference between the schedule rate and the charged or unlawful rate. Being entitled to transportation at the lawful rate which, as observed, must be deemed to be reasonable, the shipper...