Southern Ry. Co. v. Eichler

• Decision Date: 23 March 1932
• Docket Number: No. 9171.,9171.
• Citation: 56 F.2d 1010
• Parties: SOUTHERN RY. CO. v. EICHLER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F.2d 1010 (1932)

SOUTHERN RY. CO. v. EICHLER et al.

No. 9171.

Circuit Court of Appeals, Eighth Circuit.

February 9, 1932.

Rehearing Denied March 23, 1932.

Charles Clark, of Washington, D. C. (Bruce A. Campbell, of East St. Louis, Ill., and Samuel B. McPheeters and Roy W. Rucker, both of St. Louis, Mo., on the brief), for appellant.

Irvin H. Gamble, of St. Louis, Mo. (B. M. Godfrey, of St. Louis, Mo., on the brief), for appellees.

Before VAN VALKENBURGH, BOOTH, and GARDNER, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

August 6, 1926, appellees filed complaint with the Interstate Commerce Commission, involving rates upon carload shipments of certain clay articles shipped from Albion, Ill., to St. Louis, Mo. The allegation was that the said carload shipments consisted of common brick on which appellant assessed and collected a rate of $1.45 per ton under the standard brick schedule, of 2,000 pounds, whereas the applicable rate was $1.15 per ton under a note in the tariff defining a certain exception to that schedule. The difference between the amounts resulting from the total charges, figured at these two rates, was asked as reparation. November 20, 1928, the Commission ordered reparation accordingly. February 27, 1930, appellees filed suit in the District Court for the Eastern District of Missouri to enforce this order. The petition, in two counts, apparently relied upon paragraph 5 of section 1 of the Interstate Commerce Act (49 USCA p. 12, § 1 (5), prohibiting unjust and unreasonable charges for transportation service; and upon paragraph 7 of section 6 of said act (49 USCA p. 283, § 6 (7), prohibiting departure from filed and published tariffs. It was contended by appellant, with apparent reason, that, before the Interstate Commerce Commission, the charge under section 1 of the act was withdrawn, and that the only question urged was one of overcharge, prohibited by paragraph 7 of section 6. The trial court, a jury having been duly waived, in its findings of fact disposed of this contention, in conformity with the finding of the Commission, thus:

"That the rates charged on the shipments involved in this suit were inapplicable and that the applicable rates on both the large and small brick were those in effect on common brick and violates section 6 of the Interstate Commerce Act.

"That it is immaterial whether the allegation regarding the violation of Section One is sustained or otherwise for the reason that the Interstate Commerce Commission found that the rates charged were inapplicable."

It concluded that "the bricks shipped come within the provisions of Note 20 of the tariff applicable in this case and take a rate of $1.15 per ton of 2,000 pounds." Judgment in the aggregate sum of $2,448.25 was entered against appellant and other defendants, and an attorney's fee in the sum of $750 was taxed as costs under the provisions of paragraph 2 of section 16 of the Interstate Commerce Act, 49 USCA p. 7, § 16 (2).

The tariff schedules presented to the Commission and District Court for interpretation are embraced, according to expert testimony in the record, in Southern Railway Illinois Local Tariff No. 1171-H, I. C. C. No. C-2098. Item 49 describes the articles to which a rate of $1.45 per ton of 2,000 pounds is applicable as follows:

"Brick and articles taking brick rates carloads, minimum weight 60,000 pounds, except when a car of less capacity is furnished, in which case marked capacity of the car will govern. * * * Rates apply on the following articles made of clay or shale, except as otherwise indicated.

"Articles, Broken or Ground (See Broken or Ground Articles.)

"Blocks, viz:

"Building (Solid, Hollow or Perforated), except enameled.

"Condensing (including condensing Rings).

"Facing (Solid, Hollow or Perforated), except enameled.

"Furnace.

"Paving (including Asphalt Paving Blocks), Shale or Fire Clay.

"Radial.

"Salt Glazed, when shipped in same manner as Building or facing block, individual block not being packed.

"Segment (Vitrified).

"Silo.

"Tank.

"Brick, viz:

"Building (Solid, Hollow or Perforated), except enameled.

"Chrome.

"Corundite.

"Facing (Solid, Hollow or Perforated), except enameled.

"Fire.

"Furnace.

"Magnesite.

"Paving, Shale or Fire Clay.

"Radial.

"Salt Glazed, when shipped in same manner as building or facing brick, individual brick not being packed.

"Sand Cement.

"Sand Lime.

"Silica.

"Tank.

"Brick, Common."

In connection with the "Brick, Common," appearing in this item, reference is made to note 20, wherein a rate of $1.15 is published, where the distance is not more than one hundred and fifty miles, applicable thus: "Rates on common brick apply on brick, common, not hollow, made from low-grade clay or shale, loaded to the marked capacity of the car, and when not braced, wedged or packed for protecting against rubbing, breaking, or chipping, not including any grades (firsts, seconds, thirds, or culls) of enameled, face, front, paving, fire or refractory brick."

It is conceded that this tariff and the schedules quoted were prescribed by the Interstate Commerce Commission. Their history is disclosed in the reports of various cases heard and considered by the Commission. The mention of common brick, so far as appears from the citations brought to our attention, first appears in Metropolitan Paving Brick Co. v. Ann Arbor R. R. Co. et al., 17 I. C. C. 197, 200 (1909), in which the Commission said: "In the consideration of these rate-making questions common building brick, so called, has no place. This grade of brick is produced from ordinary clay at kilns in practically every community, and moves on local rates for short distances only."

It concludes that "competition between the different grades of brick is of such a character that no scheme of classification is possible which will not permit, if it does not encourage, the misbilling of the product in order to secure lower rates."

In National Paving Brick Mfg. Ass'n v. Alabama & V. R. Co. et al., 68 I. C. C. 213, 217 (1922), the Commission found: "What is strictly known as common brick is a nonvitrified brick produced from local or low-grade surface clay found practically everywhere. It is the cheapest brick in any locality and, unlike other brick and tile, usually moves for short distances only," and that the general size of common brick is 8 by 2¼ by 3¾ inches. It also found further that: "For distances not in excess of 150 miles, rates on common brick, as defined in this report, when loaded at random to the marked capacity of the car without protection against chipping or breaking, will be unjust and unreasonable to the extent that they exceed 80 per cent of the contemporaneous rates on articles in the uniform brick list, which basis we find will be just and reasonable."

It was the judgment of the Commission that, "if the lower basis of rates is confined to what is more strictly termed common brick, namely, brick not vitrified, made from low-grade surface clay, loaded loose in the cars without straw or other protection against breakage, and shipped for distances not in excess of 150 miles, the carriers should experience no great difficulty in policing the movement. The characteristics of such common brick are usually well known in the territory in which they are produced and this is particularly true of the Chicago common brick."

This was known and is referred to as the "General Brick Case."

In 1923 another case arose between the same parties. 80 I. C. C. 179. The definition of common brick set forth in the foregoing case is restated, and the demand by manufacturers of common brick made of low-grade shale, that the description of common brick be broadened to include such brick as well as brick made of low-grade clay, was granted.

The commodity forming the subject-matter of this controversy consisted of a shale product, 8½ by 3¾ by 4 5/8 inches in size. It was shipped to appellees at St. Louis, Mo., between April 16, 1925, and December 25, 1925, by the Albion Shale Brick Company from Albion, Ill., and was loaded loosely in the cars, not braced, wedged, or packed for protection against rubbing or breaking in transit. It will be seen that the article was considerably larger than the standard size of common brick, and, for this reason apart from others, it is variously characterized in the testimony before Commission and court. It was called a "dobie," a localized expression for a clay or shale commodity about twice the size of a standard common brick, by Aegerter, a constructional engineer, and by building contractors Boaz, Humes, and Schmoll, all of whom said that a common brick and a dobie were different kinds of brick. The one would not be a compliance with plans specifying the other. The article was called an "industrial block" by Williams of the Hydraulic Press Brick Company; a "dobie or building block" by Carlisle, manager of the plant in which it was made, and from which it was sold; a "building block" by Young of the Southern Weighing and Inspection Bureau. Grath, one of the appellees, calls it a "double common brick," and Tiley, of McEwing-Thomas Brick Company, a "large size building brick." It originated and came into favor, because it cost less to produce, in consideration of its comparative size, and further, because of its size, it "saves to the bricklayer about half of the mortar, which is quite an item of building, and considerable labor in laying."

The errors assigned and chiefly relied upon may be considered under two heads:

(1) The Interstate Commerce Commission was without jurisdiction of the subject-matter of this action.

(2) There is in the record no substantial evidence, within the federal rule, sufficient to support the finding and conclusion that the commodity shipped was common brick within the tariff definition contained in note 20 of the governing tariff.

These specifications of error were duly preserved by appellant's requests for declarations and conclusions of...