No. 24909 GROVIER-STARR PRODUCE COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY ET AL. Submitted July 15, 1932. Decided November 28, 1932 Carload rates charged on fresh peaches from Nashville and Russellville, Ark., to Shattuck, Okla., and Perryton and Dalhart, Tex., found inapplicable. Applicable rates found unreasonable in certain instances. Reparation awarded. F. L. Partridge for complainant. A. B. Enoch, F. L. Wallace, R. S. Outlaw, E. A. Boyd, Thomas F. King, and H. C. Barron for defendants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3: Exceptions were filed by the parties to the proposed report. Complainant, a corporation in the produce business, alleges by complaint filed December 5, 1931, as amended, that the carload rates on fresh peaches from Arkansas origins to Shattuck, Okla., and Perryton and Dalhart, Tex., were and are unreasonable. Reparation and the establishment of rates and routes for the future are sought. Rates will be stated in amounts per 100 pounds. A basis not exceeding column 42 of the southwestern first-class rates is sought by complainant for both past and future application. Column 40, minimum 20,000 pounds, is now effective on this traffic over reasonably direct routes between the points here considered, that basis having been voluntarily established effective October 1, 1932. As the prayer for future rates has been satisfied, and as the record does not warrant the establishment of any different routes than are now available, we shall consider only the reparation issue herein. While the complaint assails rates from Arkansas origins generally, complainant stated at the hearing that reparation is sought only on shipments from Nashville and Russellville, Ark. Our findings will be limited accordingly. Fresh peaches, in baskets, boxes, or crates, in carloads, minimum 20,000 pounds, are rated third class in western classification. Third class is column 70 in the Southwest. They move in refrigerator cars, generally at commodity rates materially lower than the class basis. Loss and damage claims are generally substantial. In the southwestern revision, column 50 was prescribed on this commodity from, to, and between points in the Southwest, including those here considered, but on protest of certain shippers the operation of schedules publishing such rates was suspended in Investigation and Suspension Docket No. 3130. The portion of that proceeding pertaining to peaches has not been heard. The movement shown of record was five carloads, four of which moved during July, 1931, from Nashville to Shattuck, Perryton, and Dalhart, and the other the following month from Russellville to Dalhart. The routing was that specified by the shipper. The average weight was 20,600 pounds. The shipment from Nashville to Shattuck was first billed to Kansas City, Mo., but was thereafter diverted in transit via Wichita, Kans. The distance over the route of movement was 828 miles and the short-line distance 534 miles. A rate of 91 cents was charged. The applicable rate, third class, was $1.27. Column 50 rates over the route of movement and short-line route were $1.17 and 91 cents, respectively. The shipment from Nashville to Perryton, route of movement 886 miles, was also diverted in transit via Wichita. A rate of $1.44 was charged, being the third-class rate for the short-line route of 592 miles. The corresponding column 50 rates were $1.27 and $1.03 for distances of 886 and 592 miles, respectively. Defendants contend that the applicable rate on this shipment was $1.615, composed of commodity rates of 74.5 cents to Independence, Kans., and 87 cents beyond. The applicable rate was $1.31, composed of commodity rates to and from Sallisaw, Okla., 47 cents to that point and 84 cents beyond. A commodity rate of 82 cents was applicable contemporaneously from Nashville to Perryton over the lines of the Missouri Pacific Railroad Company, the Texas and Pacific Railway Company, and the Atchison, Topeka and Santa Fe Railway Company via Texarkana and Sweetwater, Tex., 888 miles, but this was not the route of movement. Two shipments moved from Nashville to Dalhart, one via Kansas City, 1,168 miles, and the other via Hutchinson and Liberal, Kans., 969 miles. A rate of 88 cents was charged, but that rate was applicable over routes other than those of movement. Defendants contend that the applicable rate was $1.515. The applicable rate, however, was $1.34, composed of commodity rates to and beyond Sallisaw. The short-line distance from Nashville to Dalhart is 619 miles and the corresponding column 50 rate is $1.05. The column 50 rates over the routes of movement were $1.46 and $1.33, respectively. The shipment from Russellville to Dalhart was diverted via Hutchinson and Liberal and charges were collected at a rate of 88 cents. The applicable rate was $1.15, composed of commodity rates of 28 cents to Greenwood Junction, Okla., and 87 cents beyond. Distances over the route of movement and the short-line route are 754 and 628 miles, respectively, and the corresponding column 30 rates are $1.18 and $1.07, respectively. Complainant compares the assailed rates with rates contemporaneously in effect on peaches from Nashville and other producing points to destinations in Kansas, Oklahoma, and Texas. The compared rates were materially lower than the corresponding column 50 rates. Complainant also compares the assailed rates with rates on pears between the same points. Pears, in carloads, are rated fifth class, minimum 24,000 pounds, in western classification, and column. 38 rates were prescribed thereon in the southwestern revision. The present rates on pears from Nashville are 69 cents to Shattuck, 78 cents to Perryton, and 80 cents to Dalhart. Defendants' testimony was confined mainly to a showing that over certain routes from Nashville and Russellville to Dalhart and Perryton there were in effect at the time of movement commodity rates materially lower than the corresponding third-class rates; that such routes could have been used for complainant's shipments; that no justification exists for establishing rates based on short-line distances for application over the circuitous routes specified by complainant; and that the then existing rates should not be disturbed pending final determination of reasonable rates on peaches in I. and S. No. 3130. In several recent cases, including Grovier-Starr Produce Co. v. Arkansas V. I. Ry. Co., 172 I. C. C. 123, 176 I. C. C. 287, Topeka Chamber of Commerce v. Atchison, T. & S. F. Ry. Co., 176 I. C. C. 437, and Clark Fruit Co. v. Arkansas V. I. Ry. Co., 177 I. C. C. 251, we prescribed rates not exceeding column 50 on peaches from and to various points in the Southwest, Kansas, and Missouri. Reparation was awarded on that basis where rates charged were found unreasonable under any adjustment, but where such a finding could not be made, reparation was denied. The evidence in the instant proceeding proves that the applicable rates over the routes of movement, as compared with reasonable rates on peaches over other routes between the same points and with rates on like traffic contemporaneously in effect in the same general territory, were unreasonable under any equitable adjustment. We are not inclined to the view, however, that the present column 40 rates on peaches are a proper basis for reparation. While we conclude that rates in excess of column 50 were unreasonable for application to complainant's shipments, we think that distances over the routes the shipments moved rather than short-line distances should govern in determining the reparation basis. The average percentage of circuity was in excess of 50 per cent. We find that the rates charged were inapplicable; that the applicable rates were unreasonable in those instances where they exceeded the corresponding column 50 rates of the southwestern scale, minimum 20,000 pounds, distances computed over the respective routes of movement; that complainant made shipments as described and paid and bore the charges thereon; that it was damaged in those instances where the charges paid, or at the applicable rates exceeded those which would have accrued at the rates herein found reasonable and in the amount of the difference between such charges; and that it is entitled to reparation, with interest. Defendants are authorized to waive outstanding undercharges to the extent necessary to adjust the charges in accordance with the foregoing findings. Complainants should comply with Rule V of the Rules of Practice, and may include shipments which have moved since the hearing, accompanied by proof in affidavit form that it paid or bore the charges thereon. If defendants object to this method of proof a further hearing may be requested. 190 I. C. C. No. 25026 ASH GROVE LIME & PORTLAND CEMENT COMPANY OF NEBRASKA v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL. Submitted September 8, 1932. Decided November 28, 1932 Carload rates on Portland cement from Louisville, Nebr., to points in extended cement-scale Territory III in Minnesota, North Dakota, and South Dakota, and to extended cement-scale Territory IV in North Dakota, found unreasonable and unduly prejudicial. Lawful future rates prescribed. C. E. Childe and W. S. Barton for complainant. J. P. Plunkett, E. Rigg, G. A. Hoffelder, A. H. Lossow, M. L. Countryman, jr., Merrill Shepard, John P. Dennis, W. D. O'Brien, and A. R. Hayward for defendants. F. E. Paulson and E. S. Gubernator for Lehigh Portland Cement Company. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MCMANAMY, BRAINERD, AND LEE BY DIVISION 3: Exceptions were filed by the parties to the report proposed by the examiner. Our conclusions differ somewhat from those recommended by him. Complainant, a corporation manufacturing Portland cement at Louisville, Nebr., alleges that the carload rates on Portland cement from Louisville to points in extended cement-scale Territory III in Minnesota, North Dakota, and South Dakota, and to extended cement-scale Territory IV in North Dakota violate sections 1, 3, and 13 of the interstate commerce act. Lawful future rates are sought. The Northwestern States Portland Cement Company and the Lehigh Portland Cement Company, with cement mills at Mason City, Iowa, intervened. The section 13 allegation refers only to the intrastate rates on cement from Duluth and Steelton, Minn., to Minnesota destinations. The Governor of Minnesota and the Minnesota Railroad and Warehouse Commission were notified but no appearance was made on their behalf. Rates and differences in rates will be stated in amounts per 100 pounds and do not include the present authorized emergency charges. In Western Cement Rates, 48 I. C. C. 201, 52 I. C. C. 225, there were prescribed four scales of distance rates to apply in certain |