A carrier which is at service and expense in stopping goods in
transit for inspection and reloading for the benefit of the shipper
is entitled to compensation in addition to the actual expense
incurred.
Where the Interstate Commerce Commission has held, and its order
has been affirmed by the circuit court and circuit court of
appeals, that
Page 214 U. S. 298
a carrier cannot charge for a service rendered at the request
and for the benefit of the shipper any amount in excess of the
actual expense incurred, and fixed a rate less than this Court
considers reasonable, this Court cannot, where the testimony has
not been preserved in the record, fix a fair and reasonable charge,
but will reverse the judgments of both courts and remand the case
to the former court with instructions to send the matter back to
the commission for further investigation and report.
153 F. 728 reversed.
This was an action brought by the defendant in error on an award
of the Interstate Commerce Commission. In a general way, the facts
are as follows: the St. Louis Hay & Grain Company is a
corporation organized under the laws of the State of Illinois, with
its principal office at St. Louis, Missouri, a dealer in hay, in
the course of which business it operates two warehouses in East St.
Louis, Illinois. The railway company is the owner and operating a
line of railway extending from East St. Louis through the Eastern
District of Illinois to points in Southern states, to which the hay
an grain company is engaged in shipping hay. The company buys some
hay at its warehouses, brought in from the adjacent country, but a
large portion of it is bought at points to the north and west. Some
of the hay thus purchased is sent directly through East St. Louis
in the cars in which it was originally loaded, but much of it is
taken to its warehouses, there unloaded, inspected, and reloaded
for the Southern markets. This is called a reconsignment. Taking
these cars which are to be reconsigned to the hay and grain
company's warehouses, and taking the reloaded cars therefrom,
involves the use of the cars for a longer time, and there is some
expense in hauling the cars. For this the railway company had been
in the habit of charging $4 or $5 a car, equivalent on the average
loading to two cents per hundred pounds. On an application by the
company to the Interstate Commerce Commission, it was held, on May
15, 1905 (11 I.C.C. 90), that such charge was an excessive and
unreasonable charge, and that one-half thereof was sufficient. Upon
that basis, it awarded to the hay and grain company the sum
Page 214 U. S. 299
of $1,572.08, one-half the sum paid theretofore by it to the
railway company. This sum not being paid, the hay and grain
company, on January 23, 1906, filed its petition in the United
States Circuit Court for the Eastern District of Illinois to
recover the amount thus awarded, with interest, and also for an
attorney's fee. A trial resulted on June 25, 1906, in a judgment in
favor of the hay and grain company for the amount awarded by the
Commission, with interest thereon, and also for $350 as an
attorney's fee. 149 F. 609. On error to the United States Circuit
Court of Appeals for the Seventh Circuit, the judgment of the
circuit court was, on April 16, 1907, affirmed, 153 F. 728,
whereupon the case was brought here on error.
MR. JUSTICE BREWER delivered the opinion of the Court.
This case rests on the findings and conclusion of the Interstate
Commerce Commission, for while, on the trial in the circuit court,
testimony in addition to that which was produced before the
Commission was received, yet the finding of the court was that,
"from all the evidence heard and adduced on the trial of this
cause in this Court, the court finds that the said findings of fact
by the said Interstate Commerce Commission are supported and
justified by the said evidence, and it is ordered that the said
findings of fact, as above recited and set out, be and the same are
adopted as the special findings of fact of the court, and that the
same be set out in the records of this Court accordingly."
Nothing was, of course, added in the circuit court of appeals,
which merely affirmed the judgment of the circuit court. We
Page 214 U. S. 300
turn, therefore, to the proceedings before the Commission, and
there is this finding of fact:
"While the question is perplexing, and while we may not have
apprehended all the material points involved, we are strongly of
the opinion and find that, taking everything into account, the
average additional expense to southern lines in case of reconsigned
hay will not exceed that of direct through shipments by more than
from $2 to $2.50 per car, which is equivalent upon the average
loading of hay to about one cent per hundred pounds."
The conclusions, so far as material to this controversy, are
thus stated:
"The stopping of a commodity in transit for the purpose of
treatment or reconsignment is in the nature of special privilege
which the carrier may concede, but which the shipper cannot, in the
present state of the law, demand as a matter of lawful right.
Diamond Mills v. Boston & M. R. Co., 9 I.C.C. 311. Carriers may
not, however, discriminate between markets nor between individuals
in the granting of such privileges. If this right is given to the
markets which compete with East St. Louis in this business by these
defendants, it should,
prima facie, also be granted to
that market. If these defendants allow this privilege to the
competitors of the complainant at East St. Louis, they should
accord it the same privilege."
"The case shows, although not very clearly, that the defendants
concede this privilege at other competing markets, and that a track
buyer in East St. Louis itself can send along a carload, which he
purchases, but does not unload, without the payment of this charge.
It further shows, however, that the right to unload this hay and
handle it at its warehouse is of value to the complainant, and that
it costs these defendants something to accord that privilege."
"Under these circumstances, we think it is not an undue
preference against this complainant if the railroads charge for the
privilege what it actually costs them, but we do not think
Page 214 U. S. 301
that they should charge more than the actual cost. The case
finds that the fair average cost when the complainant handles its
hay through its warehouse, over and above the cost of a through
shipment, is from $2 to $2.50 per car, or approximately one cent
per hundred pounds. We think, therefore, that this reconsignment
charge ought not to exceed the proportional rate by more than one
cent, and that the complainant is entitled to recover whatever it
has paid in addition to that sum."
It thus appears that the Commission was of the opinion that the
shipper could not demand, as a matter of right, the stopping of the
hay for the purposes of treatment or reconsignment unless the same
privilege was given to other shippers, and that, in granting this
privilege, the railway company could only charge the shipper the
actual cost. But this privilege involved to the railway company the
cost of hauling to and from the warehouses and the use of the car
for some hours, perhaps days. The Commission found that $2 or $2.50
per car, or approximately one cent per hundred pounds, was the
actual cost to the railway company.
We are unable to concur with the Commission. If the stopping for
inspection and reloading is of some benefit to the shipper and
involves some service by and expense to the railway company, we do
not think that the latter is limited to the actual cost of that
privilege. It is justified in receiving some compensation in
addition thereto. A carrier may be under no obligations to furnish
sleeping or other accommodations to its passengers, but, if it does
so, it is not limited in its charges to the mere cost, but may
rightfully make a reasonable profit out of that which it does
furnish. Especially is this true when, as here, the privilege is in
no sense a part of the transportation, but outside thereof. Whether
the conclusion of the Commission that the carrier is under no
obligations to permit the interruption of the transit is right, and
whether it is or is not under such obligation, it is entitled to
receive some compensation beyond the mere cost for that which it
does.
Page 214 U. S. 302
We have been particular to copy the exact language used by the
Commission, for, in another case between the same plaintiff and
other railroad companies, involving the charges in a case of
reconsignment of hay, decided on December 20 of the same year (St.
Louis Hay & Grain Co. v. The Illinois Central Railroad Company,
11 I.C.C. 486), the Commission made an order dismissing the
complaint. It is true that the facts are not precisely like those
in this case, but, at the same time, the difference in the
conclusions of the Commission is such as seem to suggest that
perhaps, on further examination, the Commission had come to a
different conclusion.
The testimony taken before the Commission is not preserved in
the record; hence it would be impossible, even if proper, with all
the testimony before us, to fix the amount which would be a fair
and reasonable charge. All we can do is to reverse the judgments of
the circuit court and circuit court of appeals, and remand the case
to the former court with instructions to send the matter back to
the Commerce Commission for further investigation and report.
Reversed.
