Sonken-Galamba Corp. v. Atchison, T. & SF Ry. Co.

• Decision Date: 27 July 1939
• Docket Number: No. 124.,124.
• Citation: 28 F. Supp. 456
• Court: U.S. District Court — Western District of Missouri
• Parties: SONKEN-GALAMBA CORPORATION et al. v. ATCHISON, T. & S. F. RY. CO. et al.

28 F. Supp. 456

SONKEN-GALAMBA CORPORATION et al. v. ATCHISON, T. & S. F. RY. CO. et al.

No. 124.

District Court, W. D. Missouri, W. D.

July 27, 1939.

I. J. Ringolsky, William G. Boatright, and Harry Jacobs, of the firm of Ringolsky, Boatright & Jacobs, all of Kansas City, Mo., for plaintiffs.

R. S. Outlaw, of Chicago, Ill., and Lathrop, Crane, Reynolds, Sawyer & Mersereau, George J. Mersereau, and Dean Wood, all of Kansas City, Mo., for defendant Atchison, T. & S. F. Ry. Co.

Cooper, Neel & Sutherland and Mr. Ellison A. Neel, all of Kansas City, Mo., and Carl S. Hoffman, of St. Louis, Mo., Hobert Price, of Dallas, Tex., and James T. Blair, of St. Louis, Mo., for defendants Missouri-Kansas-Texas R. Co. and Missouri-Kansas-Texas R. Co. of Texas.

T. D. Gresham, of Dallas, Tex., for defendant Texas & P. Ry. Co.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, George J. Mersereau, and Dean Wood, all of Kansas City, Mo., for defendant Pennsylvania R. Co.

OTIS, District Judge.

This suit was instituted against six railroad companies and other defendants under Section 8 of Title 49, U.S.C., 49 U. S.C.A. § 8, to recover damages for the refusal of the carriers to transport at the scrap iron and scrap steel rate what the plaintiffs claim was scrap iron and scrap steel. After answers had been filed plaintiffs moved for summary judgment under Rule 56, 28 U.S.C.A. following section 723c, alleging that whether the material involved in this suit should be carried at the scrap iron and scrap steel rate had been adjudicated in various mandamus proceedings authorized by Section 49 of Title 49, U.S. C., 49 U.S.C.A. § 49.¹ The contention of plaintiffs is that they are entitled to a summary judgment on the issue of liability and that only the question of the amount of damages remains to be tried. Some of the defendants also have moved for a summary judgment that plaintiffs are not entitled to recover certain elements of the damages sought.

Considered as to One Defendant

In the beginning we shall consider plaintiffs' motion for a summary judgment and limitation of issues as if the only defendant were the first named in the caption, The Atchison, Topeka & Santa Fe Railway Company. The chief argument submitted in support of the motion is this: One of the plaintiffs brought a mandamus suit against the Company to compel it to transport at scrap iron and scrap steel rates certain quantities of metal which had been tendered for shipment. A writ of mandamus was awarded. D.C., 21 F.Supp. 931, affirmed 8 Cir., 98 F.2d 457. Not only was it adjudicated in the mandamus suit that the particular metal tendered was scrap iron and scrap steel and that it must be carried at the scrap iron and scrap steel rate, but also, so it is urged, it was in effect adjudicated between the parties that all similar metal which thereafter might be tendered by this particular shipper to the Company was scrap iron and scrap steel. The material for refusal to transport which at the scrap iron and scrap steel rate damages are now sought is similar, it is said, to that involved in the mandamus suit. The Company is bound by the former judgment. It is not entitled, so it is contended, to be heard on the issue: Is the material involved in the present suit scrap iron or scrap steel? The plaintiffs are entitled, such is the conclusion, to a summary judgment that the material involved is scrap iron or scrap steel and that it was the Company's duty to carry it at the scrap iron or scrap steel rate.

We must confess that when first we heard this argument we would not have been impressed with it except for our high regard for the ability of counsel presenting it. Careful consideration has led us to the definite conclusion the argument is not sound.

1. If we assume that it was determined in the mandamus suit that all material similar to that immediately involved in that suit is scrap iron or scrap steel, still the plaintiff in the mandamus suit is not entitled to a summary judgment in the present suit until it is shown that there is "no genuine issue"² but that the material involved in this suit is similar to what was involved in the mandamus suit (that is, similar in those points on account of which the material involved in the mandamus suit was ruled to be scrap iron or scrap steel). And certainly one conglomerate of pieces of metal is not similar to another conglomerate within the meaning of the word as we are now using it because both come from the same territory or because both formerly were put to the same character of use (e. g., as walls of oil tanks). The scrap iron or scrap steel rate applies only to "pieces of iron or steel having value for remelting purposes only." See 98 F.2d 457. One piece of iron or steel is similar to another only if it has the same essential characteristics on account of which the other piece was determined to have value for remelting purposes only.

Is there any admission in the answer of The Atchison, Topeka & Santa Fe Railway Company or elsewhere that what is involved in the present suit is material similar to that involved in the mandamus proceeding? We cannot intelligently seek for the answer to that question until we ascertain what description was given in the mandamus proceeding of the material there involved. The plaintiffs' petition in the mandamus proceeding fully described the material. It was alleged in the petition that that material was "made up of pieces of old steel plates of different dimensions, being parts of worn-out, abandoned, obsolete, condemned, dismantled oil storage tanks; these plates consisting of rusted, corroded, deteriorated pieces varying in size from 2 to 5 feet in width and from 15 to 20 feet in length, all without rivets, angle bars or other attachments."

It was further alleged that "said steel pieces are not in their original form." And that "the rivet heads (originally) holding the pieces together are cut off, the rivets driven out and the pieces pried and hammered loose and allowed to fall on the ground, many of them being thus bent and damaged; the rivet-holes in the four edges of the sheets are cut and expanded, the edges bent and hammered." And that "said pieces have been subjected to the corrosive effect of the elements and * * * crude oil * * * and are now in a corroded and rusty condition and covered with oil and other substances."

These allegations in the petition for mandamus the Railway Company in its answer thereto expressly and fully denied. The issue thus made was resolved in favor of the plaintiff in the court's finding of fact No. 2 and it was further found as a fact (the court's finding of fact No. 5) "That the material in question is not in the original form and is in fragments and pieces, and that same is not usable, even for the purposes claimed by respondents, without alteration and refabrication."

We have found in the record now presented no admission made by the Railway Company that the material involved in the present suit is similar in any of the characteristics mentioned to the material involved in the mandamus suit, as those characteristics were described by the plaintiff in that suit and found by the court. So, even if it had been adjudged in the mandamus proceeding that the Railway Company must transport as scrap iron and scrap steel all material similar to that immediately involved, certainly the plaintiffs must prove, absent an admission, that the material involved in the present suit is similar to that material. As to that issue the Railway Company certainly is entitled to the judgment of the trier of fact after a full trial.

What Was Really Adjudged

2. But we are constrained to believe that learned counsel for plaintiffs have given the issues in the mandamus proceeding and the judgment therein an interpretation altogether too broad. It was not the judgment of the court that The Railway Company should transport material similar to that immediately before the court as scrap iron or scrap steel, but that it should transport a particular aggregation (22,000 tons) "of pieces torn from old, obsolete, abandoned, dismantled oil storage tanks * * * the material described in * * * petition and the evidence." Not only was there not in the judgment any express command to The Railway Company touching similar material, but no such command was implied.

Of course the judgment in the mandamus proceeding could not be broader and never was intended to be broader than the law upon which it was bottomed. The law was that the scrap iron or scrap steel rate should apply "only on pieces (separate or combined) of iron or steel having value for remelting purposes only." Obviously whether any given piece of iron or steel has value "for remelting purposes only" depends upon its qualities and characteristics. And its qualities and characteristics must be ascertained by examination. That examination in the first instance is made by the shipper, who determines whether he believes the piece of iron or steel offered for shipment has value "for remelting purposes only." The second examination is made by the carrier, which determines whether the piece has value "for remelting purposes only." Perhaps the shipper and carrier do not agree. The controversy may be submitted to the Interstate Commerce Commission. In that event the Commission will determine from examination whether the piece of iron or steel has "value for remelting purposes only." The controversy may be submitted to a court. In that event the court will determine whether the piece has "value for remelting purposes only." The jurisdiction of the court will be limited to the discharge of that judicial function. Certainly the court will not legislate. Compare Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L. Ed. 150. The court will not say to the parties before it: "Hereafter when this shipper submits to this carrier a piece of iron and steel and claims it has value for remelting purposes only, the carrier will not...