Goodbody v. Pennsylvania R. Co.

• Decision Date: 07 November 1928
• Docket Number: No. 5001,5002.,5001
• Citation: 29 F.2d 67
• Parties: GOODBODY v. PENNSYLVANIA R. CO. TIMKEN ROLLER BEARING CO. v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

29 F.2d 67 (1928)

GOODBODY v. PENNSYLVANIA R. CO.

TIMKEN ROLLER BEARING CO. v. SAME.

Nos. 5001, 5002.

Circuit Court of Appeals, Sixth Circuit.

November 7, 1928.

Luther Day, of Cleveland, Ohio (Rufus S. Day and Donald W. Kling, both of Cleveland, Ohio, on the brief), for plaintiffs in error.

Andrew P. Martin, of Cleveland, Ohio (Andrew Squire and Thomas M. Kirby, both of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

These cases, heard together below and here, grow out of this situation:

From about April 10, 1920, to about December 1, 1920, the yard employees of the defendant in error were out on strike, and defendant was thus unable to switch cars for the respective shippers from defendant's interchange tracks to the customary delivery and loading points of such shippers at Canton, Ohio, and so notified the latter, who thereupon, with defendant's knowledge and consent, and at its request, respectively provided the switching service in question for the entire or a portion of the strike period in question, to the extent of paying wages of switching crews, providing fuel and other items of material and labor necessary to the service. In one of the instant cases defendant furnished the locomotive, the shipper maintaining the same; in the other case the shipper not only maintained, but at his own expense rented, the locomotive employed. Each shipper paid to defendant the latter's customary charges for such switching service at the regular and published line-haul freight rates, and without deduction for the value of the switching service performed by the shipper itself. In each case suit was brought in a state court to recover the reasonable value of the switching service rendered by the respective shippers, on the theory of an implied agreement by defendant to pay the same. The suits were removed to the federal court for diversity of citizenship.

In that court defendant moved to dismiss the suits for lack of jurisdiction in the court on the grounds — here broadly stated — that the relief sought essentially involved administrative questions and the making of a rate, which the court had no power to do, and which would be tantamount to giving the respective shippers a rebate contrary to law. The District Court granted defendant's motion to dismiss the suit for lack of jurisdiction. The sole question before us is one of jurisdiction of the District Court, that is to say, whether the relief asked is judicial or whether it is administrative, and so within the exclusive jurisdiction of the Interstate Commerce Commission, as to interstate and foreign commerce, and that of the Ohio Public Utilities Commission as applied to intrastate commerce. It does not appear from the pleadings which ones of the shipments in question were in interstate or foreign commerce and what shipments were intrastate. For the purposes of this review of the legal question involved the absence of such showing is immaterial.

1. Considering, first, shipments in interstate or foreign commerce: We are constrained to think that questions of allowances to the shipper for services rendered or instrumentalities furnished by him to the carrier in interstate or foreign commerce, and which should have been paid by such carrier in earning its customary and duly established rates for transportation, must be submitted to the Commission before resort to the courts. Section 15, paragraph 13, of the Interstate Commerce Act,¹ provides:

"If the owner of property transported under this act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentalities so furnished, and fix the same by appropriate order, which order shall have the same force and effect and be enforced in like manner as the orders above provided for under this section."

In Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 S. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, it was held that a shipper in interstate commerce cannot maintain an action at common law in a state court for excessive and unreasonable freight rates exacted on interstate shipments, where the rates charged were those which had been duly fixed by the carrier according to the act, and had not been found to be unreasonable by the Interstate Commerce Commission. In Robinson v. B. & O. Ry. Co., 222 U. S. 506, 32 S. Ct. 114, 56 L. Ed. 288, it was held that no action for reparation for exactions for railroad freight payments can be maintained in any court, federal or state, in the absence of an appropriate finding and order of the Interstate Commerce Commission and that the rule laid down in the Abilene Case, supra, as to suits for recovery of unreasonable rates, applies also to suits for recovery of rates as discriminatory. In Mitchell Coal Co. v. Pennsylvania R. R. Co., 230 U. S. 247, 250, 252, 33 S. Ct. 916, 57 L. Ed. 1472, which case involved a complaint by the shipper that the carrier had made to other shippers allowances for transportation services rendered by them in hauling cars over spur tracks between their mines and the railroad station, it was held that while a carrier has the right (page 248 of 230 U. S.) under the act regulating commerce to pay shippers a reasonable allowance for services in connection with the transportation of goods shipped by them, and that the allowance paid must be treated by the courts as prima facie reasonable until the Interstate Commerce Commission has determined otherwise (pages 263, 264 of 230 U. S.), yet that in case any question should arise as to the reasonableness of the practice (pages 263 and 257 of 230 U. S.), the distinction, as affecting necessity of application to the Commission, is between suits by reason of acts prohibited by statute and those based upon unreasonable charges or practices — as to which there is no law fixing what is unreasonable and therefore prohibited.²

In the instant case it does not appear that the parties had agreed upon the reasonableness of the deductions claimed by the respective shippers. But, if so, there might still remain the possibility that the allowances would be attacked as rebates. In Loomis v. Lehigh Valley R. R. Co., 240 U. S. 43, 47-50, 36 S. Ct. 228, 60 L. Ed. 517, it was held that the character of the equipment which the carrier must provide and allowances which it must make for instrumentalities supplied, and services rendered, by the shipper — such as inside doors and bulkheads in cars, and timber therefor — are problems which directly concern rate-making and are peculiarly administrative, on which there should be an appropriate inquiry by the Interstate Commerce Commission before being submitted to a court. And see Texas & Pacific R. Co. v. American Tie Co., 234 U. S. 138, 34 S. Ct. 885, 58 L. Ed. 1255. As to car distribution, see Pennsylvania Co. v. Clark Coal Co., 238 U. S. 456, 35 S. Ct. 896, 59 L. Ed. 1406; Same plaintiff v. Puritan Coal Co., 237 U. S. 121, 35 S. Ct. 484, 59 L. Ed. 867; B. & O. R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 30 S. Ct. 164, 54 L. Ed. 292. See, also, Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U. S. 285, 291, 42 S. Ct. 477, 66 L. Ed. 943; C., B. & Q. R. R. Co. v. Merriam (C. C. A. 8) 297 F. 1; Famechon v. No. Pacific R. Co. (C. C. A. 8) 23 F.(2d) 307. The authorities we have cited seem enough to illustrate the generality of the rule that the courts have no jurisdiction to entertain complaints against the reasonableness of a rate, rule or practice, until after the Commission has been called upon to act. True, the language of section 15 here involved provides that the Commission "may, after hearing * * * determine what is a reasonable charge * * * for the use of the instrumentality so furnished" etc.; but we think that, by analogy to the holding in the Abilene, Mitchell and ...