No. 743.

H. B. PITTS & SON

V.

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY; TEXAS & PACIFIC RAILWAY COMPANY; INTERNATIONAL & GREAT NORTHERN RAILROAD COMPANY; AND MISSOURI, KANSAS & TEXAS RAILWAY COMPANY.

Decided April 24, 1905.

1. Facts stated concerning shipments of hay by complainant over the railways of the Atchison, Topeka & Santa Fe and Texas & Pacific Companies, from Robinson and La Junta, Colo., and Dodge City, Kans., to Marshall, Jefferson and Kildare, Tex. Held: That the proportional rates per 100 pounds charged by the former company were excessive and unreasonable to the extent that they exceeded 21 cents for the transportation to Fort Worth, Tex., and those of the latter company excessive and unreasonable to the extent that they exceeded 15 cents for the transportation from Fort Worth to the destinations named, and that complainant is entitled to reparation from the A., T. & S. F. R. Co. in the sum of $196.84, and from the T. & P. Co. in the sum of $51.95, with interest from August 1, 1903.

2. Neither the International & Great Northern Railroad Company nor the Missouri, Kansas & Texas Railway Company was a party to the transportation here in question, and as to those carriers the complaint is dismissed.

W. L. Pitts for complainant.

Hiram Glass for Texas & Pacific Railway Company.

REPORT AND OPINION OF THE COMMISSION.

PROUTY, Commissioner:

The complainants are H. B. Pitts and W. L. Pitts, engaged

in the business of handling hay and grain at Marshall, Texas, under the firm style of H. B. Pitts & Son. The defendants are the Atchison, Topeka & Santa Fe Railway Company, the Texas & Pacific Railway Company, the International & Great Northern Railroad Company and the Missouri, Kansas & Texas Railway Company. The two last-named carriers in no way participated in the transactions involved in this proceeding.

The complainants claim to recover certain overcharges upon seven carloads of hay. The date of shipment, point of origin, destination, weight, and amount paid in case of each carload are given below:

These shipments were in all cases received by the Atchison, Topeka & Santa Fe Company, billed to destination, transported by that company to Ft. Worth, Texas, and there delivered to the Texas & Pacific, by which they were carried to destination.

The Atchison, Topeka & Santa Fe Company was not represented upon the hearing and while permission was given that company to file with the Commission any statement it might desire, that privilege has not been availed of. We have therefore only the answer of that defendant. The General Freight Agent of the Texas & Pacific Railway Company appeared and testified upon the hearing. The tariffs of these defendants are in such confusion that no one connected with this office can determine from them with any degree of certainty what the published rate on hay between these points has been or is. One of the complainants testified that up to about January 1, 1903, there was in effect by the line of these defendants a joint through rate of 36 cents per 100 pounds, which would have applied to the movement of these carloads of hay, and he produced expense bills which showed apparently that he had made

shipments from corresponding points by those lines at that rate as late as January 1, 1903. The testimony of the Texas & Pacific tended to show that such a rate had formerly been in effect, but that it was withdrawn about November, 1902. The answer of the Atchison, Topeka & Santa Fe states that on September 11, 1903, a joint through rate of 36 cents was established which would be applicable to shipments like those in question and it is the opinion of our Auditor that the tariffs so indicate. Upon this testimony we find that for some time previous to December, 1902, the Atchison, Topeka & Santa Fe and the Texas & Pacific had in effect a joint through rate of 36 cents per 100 pounds from the points of origin to the points of destination embraced in this case upon hay, and that a similar rate has been in effect since September 11, 1903, and is now in effect.

The agent of the Texas & Pacific testified that owing to some disagreement between the Santa Fe Company and his company, the former had in the latter part of the year 1902 canceled its joint rates on grain and grain products and hay; that thereupon the Texas & Pacific put in effect a rate of 1834 cents upon hay from Ft. Worth to Marshall, Kildare and Jefferson applicable to traffic received from the Atchison, Topeka & Santa Fe at Ft. Worth. Upon the shipments in question it added this rate of 1834 cents to whatever rate had been charged by the Atchison up to Ft. Worth; collected the entire amount at destination of the complainants; retained 1834 cents, and paid over the balance to the Atchison Company. The rate on hay established by the Texas Commission from Ft. Worth to these destinations is 15 cents, but the General Freight Agent of the Texas & Pacific was of the opinion that this rate was unreasonably low.

The claim of the complainants is that they should have been accorded a rate of 36 cents and that any charge above that rate is unjust and unreasonable. Plainly this record presents no facts from which we can determine as an independent proposition the inherent reasonableness of these rates. It is about 775 miles from Robinson and La Junta to Ft. Worth; 575 miles from Dodge City; from Ft. Worth to the points of destination

by the Texas & Pacific it is approximately 200 miles. Thirtysix cents for a haul of that length upon this commodity is a low rate upon the lines in question. But it appears that these defendants have maintained that rate for years with the exception of a short interval of some seven or eight months during which these shipments were made, and that the reason for not maintaining it during that period was not because the rate was too low, but because the defendants had fallen into some disagreement as to the right of milling in transit. We are inclined to hold entirely upon the unexplained admission arising from the act of these defendants in maintaining for years a rate of 36 cents, that this is a reasonable rate; that anything higher is unreasonable and that the defendants should have applied that rate to the shipments in question.

This shipment was moved in the contemplation of both parties as a through shipment from the points of origin to destination. There was, however, in effect at the time no joint rate. The shipments were carried upon two separate interstate rates, one over the Santa Fe from the points of origin to Ft. Worth, and the other by the Texas & Pacific from Ft. Worth to destination. We must determine, therefore, what sum each defendant might reasonably have charged for its service. Here, again, we are without any facts upon which to base an intelligent conclusion. The General Freight Agent of the Texas & Pacific testified that while he did not remember the divisions of the joint rate of 36 cents, it was probable his company received as its share 1834 cents, or the sum named by it as a proportional interstate rate when the joint rate was canceled by the Santa Fe. The distance by the Santa Fe, as already seen, is 775 miles from two stations, and 575 miles from the other, while the haul of the Texas & Pacific is only about 200 miles. There is evidently, however, some competitive condition which has induced the Santa Fe to accept for its division much less than would result from the adoption of a mileage basis. Did not the facts justify the allowance of what seems to be a disproportionate division to the Texas & Pacific we may assume that the Santa Fe, having knowledge of the situation would have placed the actual conditions before the Commission. We do not think,

however, that the Texas & Pacific should be allowed to charge more than its local rate from Ft. Worth upon these shipments. Even if this rate is unreasonably low as applied to a local shipment, and we express no opinion to that effect, it is certainly sufficiently high when considered as a part of a haul of nearly 1,000 miles. We have, therefore, allowed the Texas & Pacific 15 cents per 100 pounds, and the Atchison, Topeka & Santa Fe 21 cents per 100 pounds, for the transportation of this hay. On this basis the Texas & Pacific has collected $51.95 and the Atchison, Topeka & Santa Fe $196.84 more than a reasonable compensation, and should repay those sums to the complainants.

CONCLUSIONS.

Upon the foregoing findings of fact the International & Great Northern Railroad Company and the Missouri, Kansas & Texas Railway Company should be dismissed. The Atchison, Topeka & Santa Fe Railway Company should be ordered to pay to the complainants $196.84, and the Texas & Pacific Railway Company $51.95, with interest from August 1, 1903, that being approximately the date of the last payment of freight by the complainants.

10 I. C. C. REP.