No. 21711 DIXIE FOUNDRY COMPANY v. EVANSVILLE & OHIO VALLEY RAILWAY COMPANY ET AL. Submitted July 15, 1929. Decided September 21, 1929 1. Rates on molding sand, in carloads, from Sandale, Ind., to Cleveland, Tenn., over the 490-mile route referred to in the report, found unreasonable. A reasonable rate prescribed for the future and reparation awarded. 2. Applicable rate, since September 27, 1927, on the same commodity from and to the same points over the 455-mile route referred to in the report found not unreasonable. 3. Certain shipments found misrouted. Reparation awarded. Glenn F. Morgan for complainants and intervener. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS CAMPBELL, McMANAMY, AND BRAINERD BY DIVISION 2: Exceptions were filed by defendants to the report proposed by the examiner. Our conclusions differ in part from those recommended by him. Complainants are S. B. Rymer and G. C. Brown, copartners manufacturing stoves and stove parts at Cleveland, Tenn., under the name of the Dixie Foundry Company. By complaint filed November 13, 1928, they allege that the rates charged on numerous carloads of molding sand from Sandale, Ind., to Cleveland were and are unreasonable. Reasonable rates for the future and reparation on shipments that were delivered or tendered for delivery on and after November 14, 1926, are sought. Hoagland & Hardy, Incorporated, shippers of the sand in question intervened in support of the complaint. Rates will be stated in amounts per net ton of 2,000 pounds. Sandale is on the Evansville & Ohio Valley, a financially weak line, hereinafter called the Valley, 24 miles southeast of Evansville, Ind., and 6 miles northwest of Rockport, Ind. That line connects with the Southern at Rockport and with the Southern and other lines at Evansville. Cleveland is on the Southern, 29 miles east of Chattanooga, Tenn. The 21 shipments of record moved in box cars and averaged 101,530 pounds per car. They were routed by the shipper "Southern" or "Southern at Evansville," and moved over the Valley to Evansville and the Southern system beyond. There were and are no joint through rates on this traffic. Charges were collected at a combination rate of $2.93, except during the period June 6 to September 10, 1927, composed of a proportional rate of 45 cents to Evansville, plus $2.48 beyond. During the excepted period charges were assessed at a combination rate of $3.20, composed of the above-mentioned proportional rate, plus a rate of $2.75 beyond Evansville. These were the applicable rates on shipments that moved prior to September 27, 1927, and on all shipments that were specifically routed "Southern at Evansville." On that date a local rate of 50 cents, subject to the combination rule, became effective from Sandale to Rockport and the rate from that point to Cleveland was and is $2.48, but it is not subject to the combination rule. However, that rule, which authorizes a deduction of 30 cents per net ton, must be protected by the carrier publishing it under the principle announced in Sligo Iron Store Co. v. W. M. Ry. Co., 62 I. C. C. 643, and 73 I. C. C. 551. Therefore, the applicable rate via Rockport since September 27, 1927, has been $2.68. All shipments that have moved since that date routed "Southern" and delivered to that line at Evansville were misrouted by the Valley, because it did not forward such shipments over the lowest rated route. The combination rate via Rockport prior to September 27, 1927, was $3.005, except during the period June 6 to September 10, 1927, it was $3.275. The distance from Sandale to Cleveland over the Valley to Evansville and the Southern system beyond is 490 miles, and over the same lines via Rockport 455 miles. The short-line route is over the Valley to Evansville, the Illinois Central to Henderson, Ky., the Louisville & Nashville to Nashville, Tenn., the Nashville, Chattanooga & St. Louis to Chattanooga, thence Southern, 361 miles. Complainants contend that the rates charged were unreasonable to the extent that they exceeded the rate prescribed for 455 miles in Rates on Chert, Clay, Sand, and Gravel, 122 I. C. C. 133, plus 15 cents per net ton. This would make a rate of $2.25 and it is to this basis that reparation is sought. A rate of $1.95 constructed in like manner for the distance over the short route is sought for the future. Complainants compare the rates assailed with the rates prescribed by us on sand and certain other commodities in numerous cases, referred to in the table following, for the short-line distance of 361 miles. These comparisons are manifestly unfair as complainant specifically routed the shipments over longer routes, and on those routed "Southern at Evansville" and moved since September 27, 1927, the higher rated route was specified. Prior to November 8, 1927, the rates over the short route were the same as those apply. ing over the 490-mile route. On that date a local rate of 50 cents, subject to the combination rule, was established from Sandale to Evansville and due to this the combination rate over the short route became $2.68 or the same as that via Rockport. The rates over the short route are not assailed. The following table shows the rates assailed and those prescribed, or those that would result by extending the scales prescribed, in the various cases cited by complainants for the short-line distance and the distances over the other routes referred to herein: Cases cited by complainants Rate assailed. Do.... Memphis-Southwestern Investigation, 77 I. C. C. 473, sand, except asbestos sand.. Sand and Gravel to the Southeast, 83 I. C. C. 436, common sand.. Haydite Co. v. A., T. & S. F. Ry. Co., 96 I. C. C. 312, haydite, a sand and gravel substitute.. Hopeman Material Co. v. N. P. Ry. Co., 98 I. C. C. 361, sand and gravel. Penn. Sand & Gravel Prod. Asso. v. B. & O. R. R. Co., 104 I. C. Č. 717, sand and gravel.. Rates on Chert, Clay, Sand, and Gravel, 122 I. C. C. 133, sand, gravel, etc. Buckland . B. & A. R. R., 139 I. C. C. 88, slag. Ill. Silica Sand Traff. Bureau . Atchison, T. & S. F. Ry. Co., 152 1 Rates determined by extending scales prescribed. None of the rates in the cases above referred to were specifically prescribed on molding sand, except possibly those prescribed in the Memphis-Southwestern Investigation. Complainants also point out that a rate of $2.60 was prescribed on asphaltic limestone for distances of 481 to 520 miles in Colbert Limerock Asphalt Co. v. A. C. R. R. Co., 129 I. C. C. 177, and stress the fact that this rate, on a commodity worth approximately $3.50 per ton, is lower than the rates assailed on a commodity ranging in value from $1.50 to $1.75 per ton. They state that the transportation characteristics of molding sand are the same as those of common sand, slag, and crushed stone, except that the value of molding sand in some instances is higher than the value of the other commodities. Defendants contend that the rates assailed were not, and are not unreasonable and in support thereof compare those rates with the rates on molding sand to various destinations. The following table is illustrative: In Sand, Gravel, Crushed Stone, and Shells, 155 I. C. C. 247, 284, we prescribed rates of $2.45 and $2.50 for distances of 455 and 490 miles, respectively, on sand, except asbestos sand and silica sand, for application between points in the Southwest. Taking into consideration all the material evidence of record and the fact that the originating line is a financially weak line we are of the opinion that the rate from Sandale to Cleveland should not exceed $2.68. Upon this record we find that the rates assailed over the 490-mile route were, are, and for the future will be unreasonable to the extent that they exceeded, exceed, or may exceed $2.68. We further find that the applicable rate over the 455-mile route since September 27, 1927, was and is $2.68, and that that rate was not, and is not, unreasonable. We further find that complainants received the shipments as described and paid and bore the charges thereon at the rates herein found unreasonable; that they have been damaged thereby in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that they are entitled to reparation, with interest. Although some of the shipments were misrouted by the Valley we will not require that line to pay the entire amount of reparation on those shipments, because the rate charged over the route of movement was unreasonable to the extent that it exceeded the applicable rate over the route the shipments should have moved. The same lines would have transported the traffic if it had moved over the lower rated route. Therefore, the respective defendants should participate in the payment of reparation to the basis herein found reasonable. Kentucky Mine Supply Co. v. Southern Ry. Co., 152 I. C. C. 92, and cases there cited. Complainants should comply with Rule V of the Rules of Practice, and may include in the statements shipments which moved during the pendency of this proceeding, supported by affidavit that complainants paid and bore the charges thereon. If defendants object to this method of proof, complainants may request a further hearing. An appropriate order will be entered. BRAINERD, Commissioner, concurring in part: I concur in the finding of unreasonableness and the award of reparation herein. However, I do not agree with the finding in regard to the rate applicable over the shorter of the two routes involved. 157 I. C. C. No. 21512 MILWAUKEE ELECTRIC CRANE & MANUFACTURING CORPORATION v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL. Submitted May 8, 1929. Decided September 21, 1929 Carload rate charged on one traveling crane, and parts, from West Allis, Wis., to Avon Park, Fla., found inapplicable. Reparation awarded. John A. Amundson for complainant. F. W. Gwathmey for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEWIS, WOODLOCK, AND FARRELL BY DIVISION 5: This case was presented under the shortened procedure. Exceptions were filed by defendants to the report proposed by the examiner. Complainant, a corporation manufacturing electrical cranes at West Allis, Wis., by complaint filed August 29, 1928, alleges that the rate charged on a carload shipment of one traveling crane, and parts, from West Allis to Avon Park, Fla., August 31, 1927, was inapplicable. Reparation is sought. Rates will be stated in amounts per 100 pounds. The shipment weighed 71,900 pounds and moved over the Chicago & North Western, connecting carriers, and Atlantic Coast Line. Freight charges in the amount of $1,136.02 were collected, based upon a combination rate of $1.58, composed of factors of 31 cents to the Ohio River crossing, 65 cents to Jacksonville, Fla., and the sixthclass rate of 62 cents beyond. Only the factor beyond Jacksonville is assailed. In the southern classification traveling cranes are rated sixth class, in carloads, minimum 24,000 pounds, under the general heading "cranes or derricks." In the exceptions thereto a class N rating was provided on: Machinery and machines, o. L., rated sixth class under caption Machinery and Machines in southern classification, also dredging machinery and parts thereof, c. L., per car of 20,000 pounds, excess in proportion. The class N rate from Jacksonville to Avon Park was $51 per carload of 20,000 pounds, excess in proportion Complainant contends that a traveling crane is a "machine" within the meaning of |