An order of the Interstate Commerce Commission that carriers not
charging for tanks on tank-oil shipments desist from charging for
the barrel on barrel shipments or else furnish tank cars to all
shippers applying therefor
held, in this case, to be
equivalent to a holding that the charge for the barrel, is not, in
itself, excessive, and therefore, also
held that
barrel-oil shippers who had not demanded tank cars had not been
discriminated against, and were not entitled to reparation for the
amounts paid by them on the barrels.
It is the duty of a connecting carrier on a joint through rate
to accept the cars delivered to it by the initial carrier, and it
is not thereby rendered liable for any wrongful discrimination of
the initial carrier merely because of the adoption of a joint
through rate which in itself is reasonable, nor is such connecting
carrier rendered liable for any such wrongful act of the initial
carrier by section eight of the Interstate Commerce Act.
137 F. 343 affirmed.
The plaintiff in error, who was plaintiff below, seeks to review
a judgment of the Circuit Court of Appeals for the Third Circuit,
137 F. 343, reversing absolutely and without allowing a writ of
venire facias de novo, the judgment of the circuit court
of the United States for the Western District
Page 208 U. S. 209
of Pennsylvania in favor of the plaintiff company for $8,579,
with interest from May 15, 1894 -- in all, $12,706.92. This sum was
made up of the charge of fourteen cents for the weight of the
barrel in which oil was transported to Perth Amboy from the
Pennsylvania oil fields, from September 3, 1888, the time when such
charge commenced, to May 15, 1894, the time when the hearing on the
claims was had before the Interstate Commerce Commission.
The proceeding resulting in the petition herein to the circuit
court was originally commenced before the Interstate Commerce
Commission, and thereafter conducted pursuant to §§ 13 to 16 of the
act creating the Commission, February 4, 1887, 24 Stat. 379, 384,
c. 104, as amended by the Act of March 2, 1889, 25 Stat. 855, 859,
c. 382, to obtain relief from certain alleged illegal practices of
the railroad companies in the way of overcharges for the
transportation of oil for the complainants in the petition, and to
obtain reparation therefor.
Three substantially contemporaneous, yet also separate,
petitions were filed with the Commission, two on the fourth of
December, 1888, and one on the thirtieth of January, 1889, by the
Independent Refiners' Association of Titusville, Pennsylvania, and
the Independent Refiners' Association of Oil City, Pennsylvania,
against several railroad companies. The petitioners were
associations of some sixteen separate refining companies, operating
distinct and separate works in the oil regions of Pennsylvania,
near the City of Titusville or Oil City.
The petitions were filed for the purpose of obtaining relief
from certain charges made by the defendant companies against the
petitioners for the transportation of their oil from those oil
fields to tidewater in New Jersey, and specially to Perth Amboy, in
that state, and described as a point in New York harbor, and also
to Boston and points in that vicinity. Their petition relating to
the charges for transportation to Perth Amboy is alone involved
here.
Page 208 U. S. 210
The ground of complaint in that petition was that the railroads
who were therein made defendants,
viz., the Western New
York & Pennsylvania and the Lehigh Valley, charged sixty-six
cents per barrel of oil, which was alleged to be an excessive,
unjust, and unreasonably high rate for the transportation of oil to
Perth Amboy.
There was no complaint in the petition of the failure of
defendants to furnish tank ears for the petitioners for the
transportation of their oil to Perth Amboy. There was no averment
of unfairness of the rates as between barrel and tank oil. Nor was
there any averment that the defendants, by their custom of charging
for the gross weight of the oil and barrels, were giving a
preferential rate to the tank shippers as against the barrel
shipments made by plaintiffs. It was only alleged that the rate for
the transportation of oil to Perth Amboy was unreasonably high at
sixty-six cents per barrel, the weight of the barrel being included
and charged for therein. The averments in the petition, that
plaintiffs were subjected to undue prejudice and that an undue
advantage was given their competitors in business, among others,
the Standard Oil Trust, had no relation to discrimination arising
from a charge for the weight of the barrel, but was connected with
the averment that the charge of sixty-six cents for the carriage of
the oil was excessive, and hence worked a disadvantage to the
plaintiffs and gave an unreasonable preference to the competitors
in plaintiffs' business.
The prayer of the petition was that the Commission direct the
defendants to cease their unlawful acts, etc.
The evidence was taken before the Commission in the three cases,
with the understanding it should be applied to each or all the
cases, so far as applicable therein.
It appears by the evidence before the Commission that the charge
of fourteen cents per barrel (in addition to fifty-two cents for
its contents) for the transportation thereof to Perth Amboy
commenced about September, 1888, and prior to that the charge had
been fifty-two cents for the oil and the barrel.
Page 208 U. S. 211
There had been some reasons alleged on account of which the
charge had been limited to the total of fifty-two cents before
September, 1888. Perth Amboy was the station to which all the
petitioners in the proceedings before the Commission, applicable to
that port, had consigned their oil for export, and that station had
no conveniences for unloading in bulk the oil which was brought
there in tank cars. Not one car in a hundred was a tank car. The
trade demand at that point was for oil in barrels, and the ocean
shipments therefrom by the petitioners were also made in barrels,
as there were no vessels from that port carrying oil in bulk. Some
of the petitioners in the proceedings before the Commission owned
tank cars, but did not use them for the Perth Amboy port for the
above reasons. Oil which came to Perth Amboy, intended for export,
if it arrived in tank cars, had to be there unloaded and filled in
barrels before it could be loaded on ships. The petitioners,
including the plaintiffs, therefore had no use for tank cars to
that point. The Lehigh Valley road did not own tank cars, nor did
any of the other railroad companies to any material extent, except
the Pennsylvania Railroad, which is not a party to this proceeding.
The charges for transportation of oil in tank cars did not include
any charge except for the oil. In the transportation of the oil to
Perth Amboy via Buffalo, the initial carrier was the Western New
York & Pennsylvania Railroad Company, the Lehigh Valley
Railroad Company taking the oil as delivered to them in barrels in
cars at Buffalo, New York, and transporting it to Perth Amboy, the
plaintiffs paying therefor a joint through rate, amounting to
sixty-six cents per barrel, including the barrel. The defendants
had established this joint through rate. The tank cars that were
used by others for transportation to other places than Perth Amboy
were rented from the owners, who were also shippers of the oil, to
the railroad companies, who paid the owners for the use of such
tank cars a certain sum, determined by the miles run. Those cars
were used exclusively for the transportation of the oil of the
owners of the cars.
Page 208 U. S. 212
The Commission ordered the defendants to cease and desist from
charging or collecting any rate or sum for the transportation of
the barrel package on shipments of oil in barrels over their
respective roads or lines from the oil regions of western
Pennsylvania to New York and New York harbor points, or, on
reasonable notice, promptly furnish tank cars to complainants and
others who may apply therefor for purpose of loading and shipping
oil therein to such New York harbor points as the shipper may
direct, and that said defendants notify the public accordingly by
publication in their tariff of rates and charges, pursuant to the
provisions of § 6 of the Act to Regulate Commerce. It was also
ordered that the rate on shipments of oil, both in tanks and in
barrels, over said roads, should be the same, and the said rate
from said oil regions to New York points should not exceed sixteen
and one-half cents per hundred pounds. The defendants were also
required
"to refund to the several parties legally entitled thereto,
within sixty days after notice of this decision and demand thereof
by such parties, all sums received by them for transportation over
their roads of the barrel package, on shipments of oil in barrels,
when the use of tank cars had not been open to shippers
impartially, and the shipper claiming reparation has been thereby
deprived of their use."
In its opinion covering, so far as applicable, the three cases,
the Commission said that the unlawful discrimination regarding the
charge of fourteen cents for the barrel package, in addition to the
fifty-two cents for the carriage of the oil per barrel, as against
fifty-two cents per barrel by tank cars, without any charge for the
package, lay in the fact that the choice was not open generally to
shippers, and that the case was one where both modes of
transportation are employed by the carrier, and the use of one, the
tank cars, is not open to shippers impartially, but is practically
limited to one class of shippers, and that the charge for the
barrel package in barrel shipments, in the absence of a
corresponding charge on tank shipments, resulted in a greater cost
of transportation to the
Page 208 U. S. 213
shipper in barrels on like quantities of oil, between like
points of shipment and destination, than to the tank shipper, and
that it was 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 had been
disclosed by the evidence in these cases authorizing such
discrimination by any of the defendant carriers.
The order of the Commission was filed November 14, 1892, and the
proceedings were kept open for the purpose of ascertaining the
amounts which were due the parties plaintiff on the theory adopted
by the Commission.
The defendants did not comply with the order, but continued to
charge the fourteen cents for the barrel, and the parties seeking
reparation -- that is, the recovery of the damage which they
alleged they had sustained -- applied for a hearing before the
Commission to ascertain the amount thereof. The Commission
proceeded thereafter, on proper notice, to determine the amounts
due each of the claimants from September 3, 1888, the time of the
commencement of the charge for the barrel transportation, to May
15, 1894, the time of the hearing before the Commission, and found
(October 22, 1895) the amount due the plaintiff, the Penn Refining
Company, Limited (among many other claimants), to be the amount
already stated, arising, as found, from the transportation of
barrels containing petroleum oil, shipped and carried by the
railroads from Oil City and Titusville to Perth Amboy at fourteen
cents per barrel in addition to fifty-two cents for its
contents.
The Commission, in its reparation opinion, stated that the
carriers had failed to notify the public, by publication in their
tariffs of rates and charges, that they would, on reasonable
notice, supply shippers who might apply therefor with tank cars for
transportation to New York harbor points. The original order,
directing the publication of these notices by defendants in their
tariffs of rates, was entered November 14,
Page 208 U. S. 214
1892, while the period covered by the reparation order of
October, 1895, giving damages, included four years, namely, from
September, 1888, to November, 1892, before the making of such
order. The Commission, in its opinion, also stated that tank cars
had not been open to the use of shippers generally on the carriers'
roads, but there was no statement or finding that plaintiffs had
ever applied for such cars or desired them, or had been refused.
The companies did not comply with the order of reparation, and the
Commission then commenced (some time in 1896) a proceeding in its
own name in the circuit court of the United States, in equity, to
enforce all the directions contained in the orders, including the
provision for the payment of the money damages found due the
various claimants. Upon demurrer, that court held that the latter
provision could not be enforced in equity, as the railroads were
entitled to a jury trial on the issue as to the amount of the money
recovery, and that the order in regard to the amount due ought to
be enforced by each plaintiff in his own name.
Interstate
Commerce Commission v. Western New York & Pennsylvania R.
Co., 82 Fed.192, 195.
Thereupon, and in April, 1901, this proceeding by petition was
commenced in the United States Circuit Court for the Western
District of Pennsylvania by the Penn Refining Company, Limited, to
recover the amount of the money reparation directed by the
Commission. The Lehigh Valley Company demurred to the petition,
which was overruled, and issue was then joined by all the
defendants upon the material allegations of the petition, and the
case was tried in March, 1902, and a verdict found for the
plaintiff against all the defendants.
Page 208 U. S. 215
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The questions arising on this writ of error are, in some
respects, different in regard to the different railroads who are
defendants in error, but, as to the matters now to be discussed,
all occupy the same position.
In their petition to the Commission, the petitioners in that
proceeding complained of the rate of transportation of oil to Perth
Amboy, fixed by the carriers at sixty-six cents per barrel, the
weight of the barrel being included and charged for in that amount,
which rate, it was asserted, was unreasonable and excessive.
In the opinion of the Commission, filed with its order, in
referring to a former charge of fifty-two cents per barrel of oil
without charging for the weight of the barrel, from the oil fields
to Perth Amboy, it is said:
"While this rate is fully as high as it should be in view of the
nature of the traffic and the conditions surrounding it, and might
possibly be made less without depriving the carriers of a fair
remuneration for their service, we do not feel authorized, under
all the facts and circumstances disclosed by the record and
evidence in these cases, to order a reduction in addition to the
exclusion of the charge for the barrel package [fourteen cents],
and our conclusion is that the rate to New York points should be
not more than 16 1/2 cents per hundred pounds, both in tank and
barrel shipments, to be charged, in both cases, only for the weight
or quantity of oil carried, exclusive of any charge for the
package."
Again, the Commission, in its opinion, said:
"In order to guard against misapprehension, the Commission
wishes to say that these cases are decided purely upon the facts as
set forth in the situation as delineated in the record and by the
evidence. It is not intended to hold, nor should this report be
construed to hold, that, aside from other controlling
circumstances, the carrier, in hauling packages, is not entitled to
pay according to the weight thereof. It is simply held that,
Page 208 U. S. 216
on account of the peculiar circumstances in these cases, to
charge for the weight of the barrel places barrel shippers at a
disadvantage as against tank shippers, and the practice in these
cases, while the circumstances and conditions remain unchanged,
should be condemned."
Upon referring to the order actually made by the Commission, its
language is
"that the action of the defendants in charging for the weight of
barrels on shipments of refined oil in barrels over the several
through lines formed by their respective railroads from Titusville,
Oil City, and other points in the oil regions of western
Pennsylvania, to New York and other points in New York harbor, or
to Boston and points called and known as Boston points, works
unjust discrimination against the shipper of such oil in barrels in
favor of shippers of the same commodity in tank cars, while said
defendants refuse or neglect to furnish tank cars to complainants
and other shippers for the purpose of loading and shipping oil
therein to such New York harbor and Boston points as said shippers
may direct; that rates per hundred pounds on shipments of oil in
tanks or in barrels should be the same, and from said points in the
oil regions of western Pennsylvania to New York harbor and Boston
points such rates should not exceed 16 1/2 cents and 23 1/2 cents,
respectively, and that defendants should make reparation to
complainants and others in all cases where charges on shipment in
barrels between those points have included a charge for the weight
of the barrel, and tank cars have not been open impartially to
shippers of refined petroleum oil over their lines."
The defendants were also, by the order of the Commission,
"required to wholly cease and desist from charging or collecting
any rate or sum for the transportation of the barrel package on
shipment of oil in barrels over their respective roads or lines
from the oil regions of western Pennsylvania to New York and New
York harbor points, or to Boston and Boston points, or, on
reasonable notice, promptly furnish tank cars to complainants and
other shippers who may apply therefor for
Page 208 U. S. 217
the purpose of loading and shipping oil therein to such New York
harbor and Boston points as said shippers may direct, and that, on
or before the ninth of January, 1893, said defendants notify the
public accordingly, by publication in their tariffs of rates and
charges, pursuant to the provisions of § 6 of the Act to Regulate
Commerce, and also file copies of said tariffs with this
Commission, as required by the provisions of said section, and
defendants are further hereby directed and required to refund to
the several parties legally entitled thereto, within sixty
days,"
etc., as set forth in the order.
By reference to the foregoing extracts from the opinion of the
Commission it appears that they did not hold that the carrier, in
hauling barrels of oil, was not entitled to pay for the weight
thereof, including the package, but only that the peculiar
circumstances of the case before it made it improper to charge for
the weight of the barrel, because, by such charge, the shippers of
oil in barrels were placed at a disadvantage as against shippers by
tank cars, and although in one portion of the opinion it is stated
that the charge of fifty-two cents per barrel, excluding the weight
of the barrel package, was as high as it should be in view of the
nature of the traffic and the conditions surrounding it,
nevertheless the Commission gave the above-quoted precise
directions contained in its formal order. It made use of language
by which the defendants were required to cease from charging for
the transportation of the barrel package, or, on reasonable notice,
promptly furnish tank cars to complainant and other shippers who
might apply therefor for the purpose of loading and shipping oil to
New York harbor or Boston points, as the shippers might direct.
This, of course, amounted and was equivalent to a holding that the
charge for the weight of the barrel package of oil was not
excessive. If the charge for the carriage of the barrel itself,
taken in connection with the charge for the weight of the oil
contained therein, made a total charge which was, in and of itself,
excessive or unreasonably high (as was the complaint of the
petitioners), of course, the Commission would not
Page 208 U. S. 218
have permitted the charge, even if the petitioners had not
applied for the use of tank cars.
East Tennessee &c.
Railway Co. v. Interstate Commerce Commission, 181 U. S.
1,
181 U. S. 23;
Interstate Commerce Commission v. Louisville & Nashville R.
Co., 190 U. S. 273,
190 U. S. 283.
This limits the case against the defendants, upon the finding of
the Commission, to that of discrimination, which was decided to
exist under the peculiar circumstances of the case, by reason of
the charge for the barrel in which the oil was contained, while in
tank cars the charge was limited to the oil carried.
We will therefore inquire what were the peculiar circumstances,
as shown by the evidence, which led the Commission to make its
order as to discrimination?
They were these:
1. That the railroads owned no tank cars.
2. That they transported oil in tank cars only for those
shippers of oil who owned and furnished such cars. That, in the
case of oil intended for export by such owners, it was sent to
ports in New York harbor near Perth Amboy; the seaboard, and not
Perth Amboy alone, being the place of competition between the
plaintiffs and the Standard Oil Trust and others.
3. That the carrier hired tank cars from the shippers of the oil
and paid for them a certain sum, measured by the miles run to and
from the place of consignment.
4. That the tank cars thus hired were used exclusively to carry
the oil of the owners of such cars. Other shippers of oil had their
oil carried in barrels, in box cars, and a charge was made for the
weight of the barrel containing the oil, while the charge for the
oil in tank cars was limited to the amount of oil actually
carried.
These facts, in the opinion of the Commission, rendered the case
an exception to the usual rule as to the right to charge for the
weight of package as well as its contents. In the view of the
Commission, although it admitted that the transportation in tank
cars was more profitable to the carrier in yielding a larger
revenue above the cost of service than that in barrels,
Page 208 U. S. 219
yet the case was not presented
"of two modes of transportation open indiscriminately to
shippers in general, the one at a higher rate than the other, and
as to which the shipper may take his choice and pay accordingly,
but a case where the cheaper rated and, as claimed by the
defendants, the better, mode of transportation, was open
practically to only a particular class of shippers."
When, therefore, as was stated,
"the carrier accepts tank cars owned by shippers who can afford
to build and furnish them, and has none of his own to furnish to
other shippers, but can supply only box cars, in which barrels must
be used for oil, the carrier is bound to see that he gives no
preference in rates to the tank shipper, and that he subjects the
barrel shipper to no disadvantage."
These facts also appeared before the circuit court, and that
court left it to the jury to find from them whether there was
"undue discrimination" in favor of the shipper by tank cars and
against the shipper by barrels, although the petition made no such
allegation, but only alleged that the rates and charges for the
service (sixty-six cents per barrel) were excessive, unjust, and
unreasonable. Discrimination was not alleged between the tank and
the barrel car, for what would seem to be the obvious reason that
the plaintiffs could make no use of the tank cars, as they had no
facilities for unloading them at Perth Amboy, and no vessels to
export the oil in bulk, and the trade demand there was for oil in
barrels. But, although without such facilities, and not being in
position therefore to use such cars, the plaintiffs nevertheless
demanded that no charge for transportation should be made for the
barrel package, although the charge made was a reasonable one,
unless a charge for the tank packages was made against those who
used tank cars for the carriage of their oil to points adjacent to
Perth Amboy, and although the transportation by tank cars was more
remunerative to the companies than the transportation by
barrels.
The whole theory of this discrimination rests upon the alleged
failure to furnish tank cars to shippers demanding
Page 208 U. S. 220
them, while at the same time the defendants leased tank cars
from their owners and used them to carry the oil of such owners
exclusively, and yet in this case there has been no such failure,
because there has been no demand for such cars by the plaintiffs,
who, for the reasons stated, had no use for them.
Although, in the opinion of the Commission in the reparation
proceeding, it was stated that the defendants had not notified the
public as to supplying shippers with tank cars, as required by the
order of November 14, 1892, while at the same time they denied to
plaintiffs the use of such cars, yet there is no statement or
finding that the plaintiffs had ever asked for such cars for the
Perth Amboy station, and the proof is they did not want them for
that point. In the course of the opinion, some general observations
were made in regard to the failure to supply tank cars, and the
consequent necessity for the shippers to ship their oil in barrels
and pay transportation on the total weight of the oil and the
barrels. The opinion was delivered in two different proceedings, in
which all the facts were not identical, one regarding Perth Amboy
and the other Boston and adjacent points, and we cannot suppose
that the Commission meant to include Perth Amboy in the opinion on
this point, because the facts already adverted to furnish ample
reasons for not demanding or using tank cars.
It is therefore apparent that the failure of plaintiffs to use
tank cars during substantially all the period covered by the
reparation order was not owing to a refusal or omission of the
defendants to supply them on demand, but because they, the
plaintiffs, did not demand and could not use them economically for
the transportation of oil to Perth Amboy. The opinion of the
Commission must be read with reference to this evidence, which,
although given on the trial before the court, states the facts
existing at Perth Amboy during the time of investigation by the
Commission.
If it be assumed that it was the duty of the railroads to
furnish tank cars to those who demanded them while the
Page 208 U. S. 221
railroads continued to hire that kind of car from owners in
which to carry their oil, yet the failure to furnish them to a
party that did not desire and had not demanded them certainly ought
not to render it necessary for the railroads to carry the barrel
package free because no charge was made for the tank package. The
Commission said it may be conceded that the amount of paying
freight was materially greater in tank than in barrel shipments,
and that the tank car, after adding the gross weight of the car and
oil, pays slightly more to the carrier per ton than the stock car
with its full load of oil barrels. Nevertheless, it was stated that
the facts already adverted to made out a case of unjust
discrimination between the tank and barrel shipper, and it was so
adjudged in this case, where a shipper did not use or demand a tank
car.
We are unable to concur in this view. Because circumstances
existed which prevented the economical use of the tank car by
plaintiffs (no demand being made for the use of a tank car) is no
ground for finding discrimination in the charge for the weight of
the barrel package (such charge being, in itself, not an
unreasonable one) while none is made for the tank containing the
oil. It might be different if plaintiffs desired tank cars and
defendants failed to furnish them on demand.
If the carrier must take off such charge for the weight of the
barrel, although tank cars are not demanded, the result is to make
the defendants carry the barrels free from freight charges, even
while the shippers were unable to use, and did not demand, tank
cars.
It is not incumbent, therefore, upon this Court to now decide
what would be the duty of the carrier as to furnishing tank cars to
those who desired and demanded, but did not own, them where the
railroads accepted tank cars owned by other shippers of oil for the
purpose of carrying their oil alone, and to different points than
Perth Amboy. We are dealing with a case where such question does
not arise.
There are other reasons in addition to the foregoing why the
Lehigh Valley should not be held for any discrimination
Page 208 U. S. 222
in this case. That company was but a connecting carrier, and
took the cars as they were delivered to it by the initial carrier
at Buffalo for transportation to Perth Amboy. It was the duty of
the connecting carrier to do so, and it was not rendered liable for
any alleged wrongful act of the initial carrier merely because of
the adoption of a joint through rate from Titusville or Oil City to
Perth Amboy which was, in itself, reasonable. Nor did the eighth
section of the Commerce Act render it liable for any such alleged
wrongful act asserted against the initial carrier.
These views render it unnecessary to consider the objection to
the recovery, taken by the defendants in error, based upon the fact
that the petition to the Commission asked for relief on the ground
that the charges were unreasonably high, while the relief granted
was based upon discrimination,-a charge not contained in the
pleading. For the reasons already stated, the judgment of the
circuit court of appeals is
Affirmed.
MR. JUSTICE Moody, dissenting:
In my opinion, there was evidence which tends to support the
plaintiff's cause of action, and I think that it should have been,
as it was, submitted to the jury. It appeared that the plaintiff
was engaged in shipping oil, destined for export, from the oil
regions in Pennsylvania to Perth Amboy. Up to September, 1888, the
transportation rate was fifty-two cents per barrel, and that rate
applied whether the oil was carried in barrels or in tank cars. At
that rate, the plaintiff was able to ship oil in competition with
other producers. In September, 1888, the rate for shipment in
barrels was changed to sixty-six cents per barrel, while the rate
was left unchanged where the oil was carried in tank cars. The
evidence tended to show that, in view of the number, ownership, and
management of all the tank cars in existence, the new rate was
practically prohibitory of barrel shipments from the Pennsylvania
oil
Page 208 U. S. 223
regions to the seaboard, that it was designed by a competitor,
who influenced the defendants to impose it, to have this effect,
and that this was the only method of shipment practically open to
the plaintiff. Under these circumstances, the plaintiff joined with
others in a complaint to the Interstate Commerce Commission.
Section 3 of the Interstate Commerce Act makes it "unlawful . . .
to subject . . . any particular description of traffic to any undue
or unreasonable prejudice or disadvantage in any respect
whatsoever," as well as to give any person or kind of traffic an
undue preference or advantage. The plaintiff might have brought an
action for damages under §§ 8 and 9 of the act, but it chose to
make complaint to the Commission, thereby electing that as the
exclusive remedy. The Commission, after a hearing, adjudged that
the sixty-six-cent rate worked unjust discrimination against barrel
shipments, and ordered the defendants to make reparation to the
plaintiff and others. The amount of the reparation was afterward
ascertained. An order prescribing the tariff in the future was
made, but its terms do not seem to be material, as the claims for
reparation were for the time between the establishment of the
discriminating rate and the making of the Commission's order. The
order for the future may or may not be a valid and enforceable one.
The plaintiff's right under that order, in the absence of a demand
for tank cars, may be uncertain. We need not pursue those
inquiries. Here, the only question is of the right of the plaintiff
to recover damages for the alleged discriminatory rate collected
from it before, and not after, the order of the Commission. The
defendants declined to make the reparation ordered by the
Commission, and the plaintiff sought to recover it by an action,
brought under § 17 of the act, in which the defendants were
entitled to a trial by jury. On the trial, the statute makes "the
findings of fact
prima facie evidence of the matters
therein stated." They, with other evidence, were submitted to the
jury. The jury was instructed that whether the plaintiff had been
subjected to
Page 208 U. S. 224
undue prejudice was a question of fact. The jury was further
instructed as follows:
"In arriving at that conclusion, it is proper to call your
attention to this point: that the mere fact that there is or may be
a preference or advantage given where refined oil is shipped in
some other way -- for example, in tank cars -- and that a more
favorable rate is given to tank car shippers, does not, in and of
itself, show that such preference or advantage is undue or
unreasonable within the meaning of the act. Hence, it follows that
the jury, before it can adjudge these companies to have acted
unlawfully, to have subjected refined oil in barrels to any undue
or unreasonable prejudice or disadvantage, must ascertain the facts
and must give due regard to these facts and matters which railroad
men, apart from any question arising under the statute, would treat
as calling for a preference or advantage to be given; for example,
in this case, to oil shipped in such tanks. All such facts may and
ought to be considered and given due weight by the jury in forming
its judgment, whether such preference or advantage is undue or
unreasonable. In the complexity of human affairs, and especially in
commercial affairs, absolute uniformity is well nigh impossible,
and some prejudice or disadvantage often occurs where men desire to
act with the utmost fairness. It is, however, where such prejudice
or disadvantage in interstate commerce reaches the measure of undue
or unreasonable that the act makes it unlawful."
"It will be for you, gentlemen, to apply to this question all
the evidence before you in this case, in the light of all the facts
and proofs, and justly, fairly, and impartially to determine the
question of whether this rate on refined oil in barrels between Oil
City and Titusville and Perth Amboy, so established between these
two companies (if you find that to be the fact), did subject the
oil shipped in barrels to any undue or unreasonable prejudice or
disadvantage in any respect whatsoever."
"If you so find, you will also determine to what extent was the
rate undue and unreasonable, and whatever amount you
Page 208 U. S. 225
so find under the evidence, you would be justified in allowing
this plaintiff to recoup or recover upon any shipments it made and
on which it has paid the undue and unreasonable amount. You will
understand that it is not entitled to recover all the freight it
paid, because part of it was undue and unreasonable, but it is only
such part of the freight as you find to be undue and unreasonable
that the plaintiff is entitled to recover back, and that only upon
proof to you of the amount of the shipments made by it upon which
the freight was unduly and unreasonably charged."
These instructions seem to me full and appropriate. The jury
found a verdict for the plaintiff, thereby affirming that "the
particular description of traffic" in which the plaintiff was
engaged was subjected to "undue or unreasonable prejudice or
disadvantage." I am not persuaded that we can say, as matter of
law, that there was not sufficient evidence to be submitted to the
jury and to warrant the verdict. Nor do I see any reason why the
Lehigh Valley Railroad should not be held responsible. It had, with
the other defendant, established a joint tariff for a continuous
shipment between the states. That tariff has been found to be
discriminatory and unlawful. It has received its share of the
unlawful exaction. The eighth section of the act provides that a
carrier who "shall do, cause to be done, or permit to be done, any
act, matter, or thing in this act prohibited or declared to be
unlawful" shall be liable to the full amount of the damages
sustained by one injured thereby. I see no escape for this
defendant from this provision.
There may have been error committed during the trial which would
require that the verdict should be set aside and a new trial
granted. It is not necessary for me to consider this question. I go
no further than to dissent from the judgment of the Court, which in
effect denies the right of the plaintiff to recover upon the
evidence against any of the defendants.
I am authorized to say that MR. JUSTICE HARLAN concurs in this
dissent.
