scribed for that purpose; and (2) that in all other cases the rates to be used for reparation purposes should be 10 percent higher than those hereinafter found reasonable for those purposes in cases embraced by conclusion 1.

On tank material we prescribed for reparation purposes 35 percent of the corresponding first-class rates approved in the southwestern revision, minimum 36,000 pounds.

Complainant United Iron Works submitted rule V statements to the carriers, but they declined to certify such statements and a further hearing was held for the purpose of determining the amounts of reparation due complainant under the previous findings.

At the further hearing complainant placed in evidence the rule V statements, supported by original receipted freight bills, or copies thereof. These statements identify each shipment upon which reparation is claimed and show date of shipment from Iola, the fabricating point; date balance of outbound freight charges were paid; car initials and number; origin; destination; routing, insofar as that information was ascertainable from defendants' freight bills; weight; through rate assessed; through rate found reasonable for reparation purposes; outbound charges collected, and those which would have accrued at the balance of the through rate found reasonable; the charges assessed and collected at the joint through rates on shipments which were not accorded transit service; and the amount of repararation due on each shipment. Complainant states that in all instances where the shipments did not come within the circuitytolerance provisions, the penalty provision was invoked.

Defendants oppose an award of reparation to complainant in any amount because it, as a corporation, is in the hands of a trustee in bankruptcy who has not been made a party to this proceeding. We perceive no such legal obstacle. The receivership from which the bankruptcy evolved commenced more than three years after the complaint was filed. These claims were then and now are choses in action within the reach of the receiver or trustee without the necessity of formally making the trustee a party complainant hereto.

Defendants did not present any evidence; nor did they either affirm or deny the truth of the described representations made by complainant. On brief they assert that complainant's proof is defective in that it fails to show (1) complete routes; (2) whether shipments were routed by either shipper or consignee, or were unrouted; (3) the short-line routes that formed the basis for the distances used and rates claimed; (4) the distances over the routes of movement; (5) the percentage of circuity by which the used routes exceeded the short-line distances; (6) such shipments as were purchased on the so-called base-point system; and (7) payment of the charges inbound to the transit points by complainant.

On brief and in their exception defendants argue that complainant, with the burden of proof upon it, has failed to make out even a prima facie case; and this chiefly because of the missing details described above. The original receipted freight bills in evidence here are, with two exceptions,1 "balance due" bills, covering balances of the joint through rates assessed for the movements outbound from the transit point but acknowledge upon their face that the inbound charges, in the amount there shown, also were paid. Complainant, in making the shipments outbound, was compelled to surrender the inbound receipted freight bills before it could procure the outbound movements at the unpaid balance of the applicable through rates. At the first hearing complainant's cashier testified that the inbound and outbound freight charges were paid by complainant. We deem these original receipted freight bills prima facie proof of the paying and bearing of the charges by the complainant in the amounts there shown and sufficient to support an award of reparation. However, in a number of instances purported copies of freight bills were submitted with the explanation that the originals either were lost or destroyed, or had been submitted to a defendant in connection with overcharge claims. Copies of freight bills not receipted do not establish a prima facie showing of payment. Shale Hill Brick & Tile Co. v. Chicago, B. & Q. R. Co., 195 I.C.C. 303. In the absence of other evidence which might establish that fact, shipments not supported by the original receipted freight bills have been eliminated.

A number of shipments moved from Indiana Harbor, Gary, and Grasselli, Ind., through Iola, to destinations in Oklahoma over the line of the Atchison, Topeka & Santa Fe Railway Company. While the statement covering these shipments does not show the distances over the route of movement and the short-line distances, complainant's witness testified that such shipments came within the circuitytolerance rule. A check of the distances establishes the accuracy of this statement. In other instances complainant has added the 10percent penalty to the rates used for reparation purposes.

In some instances the statements fail to show complete routing. A number of carriers participated, at joint through rates, in the transportation of many of the shipments covered by the claims and in exacting the rates found unreasonable they were jointly and severally liable for any damages resulting therefrom. The lack

1 The exceptions relate to two shipments represented by exhibit 3, which were transported through from origins to destinations without being accorded transit privileges enroute. No complete routes or distances are shown with respect to these shipments. Marietta, Ohio, shown as an origin on one shipment is not named in the complaint; and the complainant is not shown as a party to the original receipted freight bills. These shipments have been eliminated.

of proof of the complete list of carriers actually participating in the transportation does not preclude the issuance of an order against those known.

Defendants interpret footnote 2,2 appearing at page 500 of the original report as redundant, unless it means that the basis of the reparation award was not to be the freight charges actually paid, as such, by complainant, but only that portion of such charges which the complainant was not credited with in its settlement of the bills of sale with the vendor-consignors. They therefore urge that in reference to each shipment the basis of sale, especially credits allowed for freight charges, should be proved before the amount of reparation due under our findings accurately can be established. The rule there laid down was merely to put the parties upon notice that the rates applicable from the actual points of origin, rather than the base points used in fixing the selling prices, would establish the basis for reparation. Complainant has shown that it paid the inbound freight charges from actual points of origin as well as the outbound freight charges from the transit point. In the circumstances, in the absence of any adverse claim, it is entitled to damages for the difference between the charges paid and those which would have accrued at the through rates found reasonable. See Adams v. Mills, 286 U.S. 397, and cases there referred to.

Shipments from Midland, Coatesville, Economy, Fallston, and Bethlehem, Pa., and from Lackawanna, N.Y., have been eliminated for the reason that those points are not named in the complaint as origins from which shipments were made at the rates alleged to have been unreasonable. We have eliminated also shipments destined to points in Kansas, not within the complaint and concerning which no findings were made.

We find that complainant, United Iron Works, has been damaged and is entitled to reparation, with interest, from the defendants named in the accompanying order, in the amounts set opposite their respective names.

CHAIRMAN LEE did not participate in the disposition of this case.

Shipments purchased on the so-called base-point system, and the evidence shows that the shipments may or may not have been shipped from the base point. In no instance shall the reparation awarded exceed the amount of freight charges paid by the complainant, which latter information is to be shown on the rule V statements. 200 I.C.C.

No. 23434

W. A. L. THOMPSON HARDWARE COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL.

Submitted November 23, 1933. Decided February 21, 1984

On further hearing, amount of reparation due complainant on shipments of iron and steel pipe, in carloads, from Chicago, Ill., to Dodge City, Kans., under findings in original report herein, 183 I.C.C. 232, determined and ordered paid.

C. F. Real for complainant.

C. J. Putt and R. E. Brandt for defendants.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 3, COMMISSIONERS MCMANAMY, LEE, AND MILLER BY DIVISION 3:

The parties have waived the service of a proposed report.

In the original report herein, 183 I.C.C. 232, we found that the rates on wrought-iron and steel pipe, in carloads, from Chicago, Ill., to Dodge City, Kans., prior to December 3, 1931, were unreasonable to the extent that they exceeded 75 cents per 100 pounds, minimum 36,000 pounds, on (a) all shipments routed by the shipper over routes less than 15 percent longer than the shortest then existing route over which carload traffic could be moved without transfer of lading, (b) all shipments routed by the shipper over the shortest route over which the tariff rate applied, provided that the initial carrier therein was also the initial carrier in a route not more than 15 percent longer than such shortest existing route, and (c) all unrouted shipments where the initial carrier was a party to the tariff rate via any route not more than 15 percent longer than such shortest existing route; and that on any shipments not embraced in (a), (b), and (c) above, they were unreasonable to the extent that they exceeded 82.5 cents, minimum 36,000 pounds. We further found that complainant had made shipments from and to the points in question, had paid and borne the charges thereon, and was entitled to reparation, with interest. Complainant was directed to comply with rule V of our Rules of Practice.

Defendants declined to certify the rule V statement submitted by complainant and, upon the latter's request, the case was assigned for

further hearing for the purpose of affording complainant an opportunity to offer proof in respect of shipments made, and the paying and bearing of the charges thereon, and to determine the amount of reparation due it under the findings in the original report. At the further hearing complainant introduced an exhibit covering 22 carload shipments of wrought-iron and steel pipe upon which reparation is claimed, some of which moved subsequent to the original hearing, together with the paid freight bills for 21 shipments. The paid freight bill for the remaining shipment had been misplaced and complainant's canceled check covering the freight charges on the car P.R.R. 859450, delivered February 17, 1930, was offered in evidence. An officer of the complaining company, who had knowledge of the shipments and of the payment of the charges thereon, testified to the correctness of the statement and as to the paying and bearing of the freight charges. With the consent of defendants, the original paid freight bills and the canceled check were retained by complainant.

Defendants offered no testimony at the further hearing and did not question the accuracy of the amount claimed as reparation. However, the question of whether or not all of the shipments moved by routes not more than 15 percent longer than the shortest existing route was raised and complainant was given permission to file a statement showing the actual route of movement of each shipment and the degree of circuity. Such statement has been filed and made a part of the record. It shows that complainant is entitled to reparation to the basis of a rate of 75 cents on 21 shipments and to 82.5 cents on the remaining shipment.

We find that complainant made the shipments described, paid and bore the charges thereon, was damaged thereby, and is entitled to reparation in the sum of $981.55, with interest. An order awarding reparation will be entered.

200 I.C.C.