1 Commodity rate to Chicago, 19 cents, plus fifth-class rate, 23 cents, beyond. In further support of its contention that the movement of bottles is essentially class traffic, defendants point out that fifth-class rates generally apply on glass bottles from St. Louis and Alton to points in central territory. An exhibit setting forth the present rates on bottles, in carloads, from these points of origin to 22 destinations in Indiana, Michigan, and Ohio indicates that the fifth-class rates apply to all destinations named with the exception that commodity rates apply from St. Louis to Terre Haute and Indianapolis, and from Alton to Kalamazoo, Mich. Typical of the destinations reached by class rates are Muncie and Decatur, Ind., Lansing and Battle Creek, Mich., and Cincinnati, Columbus, and Dayton, Ohio. Defendants point out that on account of the fragile nature of this commodity the loss and damage claims are high. During the year 1927 the reports from 190 carriers, comprising 95 per cent of the United States mileage and 60 per cent of Canadian mileage, showed that the loss and damage claim payments on glass, glass articles, crockery, pottery, and chinaware amounted to $1,271,668, or 3.5 per cent of the claim payments on all commodities reported by these carriers. During this same period 376 cars of glass bottles of all kinds moved out of Lapel to various destinations and out of that number 41 cars had claims amounting to $2,249.23. In the Consolidated Southwestern revision we prescribed a basis for rates on glass bottles 38 per cent of the first-class rate. This percentage of the first-class rate from Lapel to Sheboygan and Manitowoc would result in a rate of 39 cents. Although the complaint does not allege a violation of section 4 of the act, the evidence of record discloses that there was and still is published on bottles, in carloads, from Lapel to Sheboygan a combi nation rate of 31.5 cents, composed of a commodity rate of 22.5 cents to Milwaukee and a fifth-class rate of 9 cents beyond. This rate situation raises a prima facie presumption that the joint rate of 34.5 cents was and is unreasonable. However, the evidence with respect to the reasonableness of the rate assailed is sufficient to rebut this presumption. Defendants should promptly remove this fourth-section departure. In support of its contention that it has been damaged as a result of the alleged undue prejudice, complainant asserts that a competitor at St. Louis ships bottles to consumers at Manitowoc at the 28-cent rate; that the cost of production is about the same at all factories; that complainant purchased the output of a factory at Lapel and sold the bottles to customers at Sheboygan and Manitowoc who paid the freight charges thereon and deducted same from invoices rendered by it; and that it is compelled to absorb the excess transportation charges out of its profits. There is nothing of record to indicate that the price received by complainant is fixed by its competitors or that the loss of profits alleged is the direct result of the undue prejudice hereinafter found to exist. We find that the rate assailed was not and is not unreasonable but that it is, and for the future will be, unduly prejudicial to complainant at Lapel and unduly preferential of its competitors at St. Louis, East St. Louis, and Alton, to the extent that it bore, bears, or may bear a higher percentage of the fifth-class rates from Lapel to Sheboygan and Manitowoc than the contemporaneous rates on glass bottles, in carloads, from St. Louis, East St. Louis, and Alton bore, bear, or may bear to the fifth-class rates from those points to the destinations concerned. The evidence of damage by reason of undue prejudice is not sufficient, however, to justify an award of reparation. An order for the future will be entered. 157 I. C. C. No. 209401 ROBERT GAYLORD COMPANY v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY ET AL. Submitted May 9, 1929. Decided August 14, 1929 Rates charged on strawboard and ammoniacal liquor from Terre Haute, Ind., and on hides from Indianapolis, Ind., in carloads, to St. Louis, Mo., found inapplicable. Reparation awarded. Thomas L. Philips and W. E. McGarry for complainants. Isaac Born for intervener. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS AITCHISON, TAYLOR, AND PORTER BY DIVISION 3: Exceptions were filed by defendants to the report proposed by the examiner, and the cases were orally argued. Complainants are corporations dealing in strawboard, ammoniacal liquor, and green-salted hides, with their principal places of business at St. Louis, Mo. By complaints seasonably filed it is alleged that the rates charged on strawboard, shipped between December, 1923, and February 2, 1924, and on ammoniacal liquor, shipped between October, 1923, and August, 1924, from Terre Haute, Ind.; and on green-salted hides, shipped in May, June, and October, 1924, from Indianapolis, Ind., to St. Louis, Mo., all in carloads, were inapplicable. Reparation only is sought. Informal complaints were filed in each case. Rates will be stated in cents per 100 pounds. Indianapolis is at the point of an angle formed by two of the main lines of the Cleveland, Cincinnati, Chicago & St. Louis, hereinafter called the Big Four. One line of this angle extends northerly to Chicago, Ill., which point it reaches over the Illinois Central from Kankakee, Ill., under a trackage agreement, and the other line extends westerly to St. Louis. Terre Haute is on the latter line between Indianapolis and St. Louis. The Chicago, Milwaukee, St. Paul & Pacific, hereinafter called the Milwaukee, extends from Chicago south to Terre Haute. The shipments originated at the latter point and Indianapolis and moved over the Big Four to St. Louis. 1 This report also embraces No. 20955, Indiana Coke & Gas Company et al. v. Same, and No. 21050, Schaefer Griffin Company v. Same. The rate charged on the 11 carloads of strawboard was 16.5 cents, being 90 per cent of the sixth-class rate; on the 84 carloads of ammoniacal liquor, 21 cents, being 90 per cent of fifth class. On two carloads of green-salted hides, the fifth-class rate of 27 cents was charged and on one less-than-carload shipment of the same commodity, the third-class rate of 52 cents. The latter shipment weighed 18,200 pounds. Defendants admit that on this shipment the charges should not exceed those based on the fourth-class rate of 39 cents. However, the application of this rate to the actual weight of the shipment would produce a higher charge than would result under the 25-cent rate, with minimum of 26,000 pounds, hereinafter found applicable to the other shipments of hides; and under rule 15 of the consolidated classification the lawful charge is that based on the carload rate and minimum. When the shipments of strawboard moved, a rate of 14 cents was applicable on that commodity, in carloads, from Chicago to St. Louis over the Milwaukee and the Big Four via Terre Haute. Some of the shipments of ammoniacal liquor moved prior to February 20, 1924. At the time of this movement a carload rate of 17 cents was applicable on that commodity from Joliet, Ill., to St. Louis over the Chicago, Milwaukee & Gary to Delmar, Ill., thence over the Milwaukee and Big Four via Terre Haute. At the time the remainder of the shipments of this commodity moved, a rate of 19.5 cents was applicable from Dubuque, Iowa, to St. Louis over the Milwaukee and the Big Four via Terre Haute. When the shipments of green-salted hides moved, a rate of 25 cents, minimum 26,000 pounds, was applicable on that commodity from Dubuque to St. Louis over the Milwaukee to Chicago and the Big Four beyond. As indicated above, the only route over the Big Four from Chicago to St. Louis is via Indianapolis. After the shipments moved, the rates over the routes described were canceled, and are not now in effect. Complainants contend that these rates were applicable to the respective shipments by reason of the fact that the governing tariffs contained intermediate clauses substantially similar to the following: in this tariff, or rate from or to any point not indexed effective supplements thereto, which point is directly intermediate to a point or between two points from or to which rates are published in tariff, as amended, will be the same as the rates named in tariff, or effective supplements thereto, from or to such point or two points, unless the rates from or to such two points are not the same, in which case the rate from or to the intermediate point will be that applicable to or from the point to or from which the higher rate is published in tariff, as amended. Defendants submitted considerable evidence in support of their contention that the tariffs naming the rates which complainant seeks. to have applied were so restricted as to routing that these rates were not applicable over routes formed by carriers operating east of the Illinois-Indiana State line; and that over such routes the intermediate rules referred to did not apply to the points of origin here considered. However, the above-mentioned tariffs specifically define the routes herein described and inasmuch as Indianapolis and Terre Haute were not indexed as origin points in those tariffs, nor were specific rates named therein from these points to St. Louis, the commodity rates over the routes described were made applicable from the two origins named under the intermediate rule referred to. We find that the rates charged were inapplicable; that the applicable rates were, on the shipments of strawboard, 14 cents; on the shipments of ammoniacal liquor prior to February 20, 1924, 17 cents, and thereafter, 19.5 cents; and on the shipments of green-salted hides, 25 cents, subject to a carload minimum of 26,000 pounds; that complainants made the shipments as described and paid and bore the charges thereon at the rates herein found inapplicable; that they were damaged thereby in the amount of the differences between the charges paid and those which would have accrued at the rates herein found applicable; and that they are entitled to reparation, with interest. Complainants should comply with Rule V of the Rules of Practice. 89905°-30-VOL 157- 4 |
