Western N. Y. & P. R. Co. v. Penn Refining Co, Limited, of Oil City, Pa

• Decision Date: 01 May 1905
• Docket Number: 3.,2
• Parties: WESTERN NEW YORK & P.R. CO. et al. v. PENN REFINING CO., Limited, OF OIL CITY, PA. (two cases).
• Court: U.S. Court of Appeals — Third Circuit

137 F. 343

WESTERN NEW YORK & P.R. CO. et al. v. PENN REFINING CO., Limited, OF OIL CITY, PA. (two cases).

Nos. 2, 3.

United States Court of Appeals, Third Circuit.

May 1, 1905

[Copyrighted Material Omitted]

Francis I. Gowen and John G. Johnson, for plaintiffs in error.

M. J Heywang, Eugene Mackey, J. W. Lee, and S. S. Mehard, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and Bradford, District Judge.

BRADFORD District Judge.

The questions before us arise on writs of error to the circuit court of the United States for the western district of Pennsylvania in two statutory actions brought April 11, 1901 by the Penn Refining Company, Limited, of Oil City Pennsylvania, for the recovery of certain sums of money respectively mentioned in two orders of reparation in its favor made October 22, 1895, by the Interstate Commerce Commission, together with interest. One of these actions, No. 23, May Term, 1901, was brought against the Western New York and Pennsylvania Railroad Company and Samuel G. De Coursey, receiver thereof, the Western New York and Pennsylvania Railway Company and the Lehigh Valley Railroad Company, and the other, No. 25 May Term, 1901, against the Western New York and Pennsylvania Railroad Company and Samuel G. De Coursey, receiver thereof, the Western New York and Pennsylvania Railway Company, the New York, Lake Erie and Western Railroad Company and J. G. McCullough and E. B. Thomas, the receivers thereof, the Erie Railroad Company and the Delaware and Hudson Canal Company. In No. 23 a verdict for the plaintiff was found May 23, 1902, for $12,706.92, and in No. 25 a verdict for the plaintiff was found on the same day for $514.30. Judgment on verdict was entered in each action February 12, 1903. The assignments of error in both cases by consent of counsel and as a matter of convenience were argued at the same time and appropriately may be considered in one opinion. The order of reparation on which action No. 23 is founded was made in proceedings. No. 154, before the Interstate Commerce Commission, instituted December 4, 1888, the Independent Refiners' Association of Titusville, Pennsylvania, and the Independent Refiners' Association of Oil City, Pennsylvania, being the petitioners, and the Western New York and Pennsylvania Railroad Company, the New York, Lake Erie and Western Railroad Company and the Lehigh Valley Railroad Company being the original respondents. The order of reparation on which action No. 25 is founded was made in proceedings, No. 153, before the commission, also instituted December 4, 1888, the same refiners' associations being the petitioners, and the Western New York and Pennsylvania Railroad Company, the New York, Lake Erie and Western Railroad Company, the Delaware and Hudson Canal Company, the Fitchburg Railroad Company and the Boston and Maine Railroad Company being the original respondents. It appears that the plaintiff below was and is a member of the Independent Refiners' Association of Oil City, Pennsylvania. The order of reparation in proceeding No. 154 is as follows:

'The claimant, the Penn Refining Company, Limited, of Oil City, Pa., is entitled to recover from the defendant, the Western New York & Pennsylvania Railroad Company and Samuel G. De Coursey, the receiver thereof, and the defendant, the Lehigh Valley Railroad Company, the sum of eight thousand five hundred and seventy nine dollars ($8,579.00) as reparation for damage resulting to said claimant from excessive and unlawful transporation charges exacted upon shipments of petroleum oil in barrels delivered by said claimant to said Western New York & Pennsylvania Railroad Company, or to its said receiver, for transportation over the Western New York & Pennsylvania Railroad and the Lehigh Valley Railroad from Oil City, Pa., to Perth Amboy, N.J., which said shipments of oil in barrels were so transported over said railroads between the 3rd day of September, 1888, and the 15th day of May, 1894, as appears from claim filed and statement thereon made by said Western New York & Pennsylvania Railroad Company and its said receiver; and the said Western New York & Pennsylvania Railroad Company and Samuel G. De Coursey the receiver thereof, and the Lehigh Valley Railroad Company are hereby ordered and required to pay to the claimant, the Penn Refining Company, Limited, the said sum of eight thousand five hundred and seventy nine dollars ($8,579.00), together with interest thereon at the rate of 6 per cent. per annum from May 15, 1894.'

The order of reparation in proceedings No. 153 is as follows:

'The claimant, the Penn Refining Company, Limited, of Oil City, Pa., is entitled to recover from the defendant, the Western New York & Pennsylvania Railroad Company and Samuel G. De Coursey, the receiver thereof, and the defendant, the New York, Lake Erie & Western Railroad Company and J. G. McCullough and E. B. Thomas, the receivers thereof, and the defendant, the Delaware & Hudson Canal Company, the sum of three hundred and forty three dollars and fifty eight cents ($343.58), as reparation for damage resulting to said claimant from excessive and unlawful transportation charges exacted upon shipments of petroleum oil in barrels delivered by said claimant to said Western New York & Pennsylvania Railroad Company or to its said receiver for transportation over the Western New York and Pennsylvania Railroad, the New York, Lake Erie and Western Railroad the Delaware and Hudson Canal Co.'s railroad and the Central Railroad of New Jersey from Oil City, Pa., to Newark, N.J., which said shipments of oil in barrels were so transported over said railroads between the 3rd day of September, 1888, and the 15th day of May, 1894, as appears from claim filed and statement thereon made by said Western New York and Pennsylvania Railroad Company and its said receiver; and the said Western New York and Pennsylvania Railroad Company and Samuel G. De Coursey, the receiver thereof, and the New York, Lake Erie and Western Railroad Company, and J. G. McCullough and E. B. Thomas, the receivers thereof, and the Delaware & Hudson Canal Company are hereby ordered and required to pay to the claimant the Penn Refining Company, Limited, the said sum of three hundred and forty three dollars and fifty eight cents ($343.58), together with interest thereon at the rate of 6 per cent per annum from May 15, 1894.'

The plaintiff below recovered in each action judgment for the full amount awarded in the order of reparation, together with interest at the specified rate from May 15, 1894. The independent refiners' associations in their petitions in cases No. 153 and No. 154 before the commission alleged in substance, among other things, that they were composed of a number of separate and distinct refining companies organized for the purpose of obtaining from railroad companies equal, reasonable and just rates of freight for refined petroleum and its products, manufactured and sold by the members of the petitioning associations at and from works owned and operated by them in the oil regions of Pennsylvania at or near Titusville and Oil City respectively; that in the conduct of their business the members of the petitioning associations had for several years shipped from their works large quantities of petroleum over the railroads of the respondents; and that the respondents as common carriers engaged in interstate commerce had violated the provisions of the interstate commerce act of February 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154), in establishing and collecting from the members of the petitioning associations excessive, unjust and unreasonable through rates and charges for the transportation over the lines of the respondents of petroleum in barrels in carload lots, and in giving an undue and unreasonable preference or advantage to shippers of petroleum and its products other than the members of the petitioning associations, and in subjecting the latter to an undue and unreasonable prejudice and disadvantage. In each case the petitioners prayed, among other things, that the commission would order the respondents to desist from the acts complained of and to make such reparation in the premises to the petitioners as should be found just and proper. The assignments of error are numerous and it is unnecessary to take them up seriatim and give to each a separate consideration. They may in each case be divided into three groups, raising respectively three classes of questions, namely, those relating to the conduct of the trial in the court below, those relating to the lawfulness of the order of reparation, and those in other respects bearing upon the validity of the judgment recovered.

In each action error has been assigned by all the defendants therein to the admission in evidence of a paragraph from the report of the commission containing the following allegations:

'After full investigation and mature consideration * * * we hold, that where both modes of transportation are employed by the carrier and the use of one, the tank car, is not open to shippers impartially but is practically limited to one class of shippers, the charge for the barrel package in barrel shipments in the absence of a corresponding charge on tank shipments, resulting in a greater cost of transportation to the shippers in barrels on like quantities of oil between like points of shipment and destination than to the tank shipper, is an unjust discrimination subjecting the barrel shipper to an unreasonable disadvantage and giving the tank shipper an undue advantage, and that no circumstances and conditions have been disclosed by the evidence in these cases authorizing such discrimination by any of the defendant carriers.'

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