to warehouse or compresses at East St. Louis; and from East St. Louis to Sherbrooke, 71.5 cents on compressed and 89.5 cents on uncompressed cotton, to Drummondville, 65.5 cents on compressed and 85.5 cents on uncompressed cotton, and to Hochelaga, 65.5 cents on compressed cotton. Reparation is sought to the basis of rates of $1.295, $1.215, and $1.295, plus 3.5 cents transit charge, from Searcy to Drummondville, Hochelaga, and Sherbrooke, respectively. No storage in transit was provided at East St. Louis over the route of movement under joint through any-quantity rates. However, storage of compressed cotton at East St. Louis was permitted in connection with the Missouri and North Arkansas and Missouri Pacific Railroad Company to East St. Louis and routes of movement beyond at joint rates from Searcy of $1.295 to Drummondville and Sherbrooke and $1.215 to Hochelaga, plus 3.5 cents for transit. Complainant contends that it was the duty of the agent of the Missouri & North Arkansas to advise it that storage in transit was not permitted at East St. Louis in connection with the Cotton Belt, and that the shipments were misrouted. The evidence does not support a finding of misrouting. For example, it does not show that the shipments to East St. Louis were not routed by the shipper. Furthermore, it is not clear that the Missouri & North Arkansas was advised on all shipments that storage in transit at East St. Louis was desired. Some of the shipments out of East St. Louis consisted of uncompressed cotton and they evidently are not covered by this complaint. Complainant also, in effect, seeks retroactive application of the transit arrangement at East St. Louis. It relies on the transit arrangement over the Missouri Pacific, above mentioned, and on transit arrangements at East St. Louis under through rates from points on the Cotton Belt in the vicinity of Searcy to the considered destinations. Storage in transit at East St. Louis over the routes of movement under the joint rates sought, plus 3.5 cents, was established on August 19, 1931. The evidence does not establish that the shipments were misrouted or that the rates assailed were unreasonable or otherwise unlawful. The complaint will be dismissed. 190 I. C. C. No. 25106 GLESSNER COMPANY v. NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY ET AL. Submitted September 27, 1932. Decided December 30, 1932 Rate charged on electric vaporizers and medicine combined in packages, in carloads, and in mixed carloads with medicine in packages, from Findlay, Ohio, to San Francisco and Los Angeles, Calif., found applicable and not unreasonable. Complaint dismissed. John Andrew Ronan for complainant. J. R. Bell, G. H. Muckley, James E. Lyons, and H. H. McElroy for defendants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, PORTER, AND TATE BY DIVISION 2: This case was presented under the shortened procedure. Exceptions were filed by complainant to the report proposed by the examiner. Complainant alleges that the rate charged on three shipments of vaporizers and medicine combined in packages, in carloads, and in mixed carloads with medicine in packages, shipped between December 9, 1929, and January 16, 1930, inclusive, from Findlay, Ohio, to San Francisco and Los Angeles, Calif., was unreasonable. Reparation is sought. Each of the vaporizers consisted of a small jar with a metallic cover and a length of electric cord with a plug at each end. A metallic prong, fastened to the cover and containing a heating element, extended down into the jar. A small jar of ointment was included in the package with the vaporizer. The ointment and vaporizer are used in the treatment of head colds and kindred ailments. In using them, water and a small amount of the ointment are placed in the jar of the vaporizer; and one plug of the electric cord is attached to the jar cover and the other plug is inserted in an electric socket. The heat generated by the electricity passing into the prong heats the water and the ointment, causing the latter to vaporize. The vapor escapes through an aperture in the jar cover and is inhaled by the user. When the ointment is exhausted, additional jars thereof may be purchased. The jar of ointment the vaporizer, and the container weigh 8, 10, and 2 ounces, respectively, making a total of 20 ounces. The wholesale price of the package is 57 cents, and the value of the vaporizer is twice that of the jar of ointment. The considered shipments consisted of packages of the vaporizers and ointment just described, except that two shipments also include packages containing a cough remedy. Charges were collected under the mixed-carload rule at the third-class rate of $3.78 per 100 pounds, minimum 30,000 pounds applicable on both medicines and electrical appliances. Reparation is sought to the basis of a commodity rate of $1.84, contemporaneously applicable from and to the considered points on medicines, and subsequently made applicable on complainant's combined packages of vaporizers and ointment. Complainant says that the rate charged was inapplicable. It contends that the vaporizers were not complete electrical appliances, and that the applicable ratings thereon were those claimed to have been applicable on their component parts. As the vaporizers were clearly complete electrical appliances, this contention is untenable. Furthermore, assuming that complainant's contention is correct, ointment takes the third-class rating applicable on medicines, and, as the mixed-carload rule provided in the governing western classification excludes the use of commodity rates in connection therewith, the considered mixed carloads were still subject to the third-class rate charged. To show unreasonableness, complainant relies solely on the subsequent reduction of the rate. That of itself does not show that the prior rate was unreasonable, and defendants' evidence indicates that the $1.84 rate on medicines is depressed by rail-water competition, and that its subsequent application on the combined packages of vaporizers and ointment was influenced by rail-water competition. We find that the assailed rate was applicable and was not unreasonable. The complaint will be dismissed. 190 I. C. C. No. 25152 CENTRAL INDIANA GAS COMPANY v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY COMPANY ET AL. Submitted October 3, 1932. Decided December 30, 1932 Applicable rates on coal-tar pipe coating, in carloads, from Ensley, Ala., to Irving L. Artes for defendants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEWIS, FARRELL, AND TATE BY DIVISION 5: The shortened procedure was followed herein. No exceptions were filed to the proposed report. Our conclusions differ from those there recommended. Complainant, a corporation, alleges by complaint filed March 17, 1932, that the rates charged from Ensley, Ala., on six carloads of coal-tar pipe coating, five to Muncie, Ind., and one to Marion, Ind., shipped over defendants' lines between July 28 and November 12, 1930, were unreasonable. Pipe coating is used to prevent or arrest the rusting and corroding of iron pipe. This pipe coating, a liquid of the consistency of molasses, was in barrels or drums. Its value was about $38.50 per net ton at Ensley. The fifth-class rates governed by the southern classification of 76 cents per 100 pounds to Marion and 73 cents to Muncie, minimum 30,000 pounds, were applicable. The applicable rate was charged on the shipment to Marion and, although the record is not clear, it appears that the applicable rate was ultimately charged on three shipments to Muncie, while a sixth-class rate of 65 cents was charged on the others. The last-mentioned shipments were undercharged. The distances to Muncie and Marion are 534 and 564 miles, respectively. Rates of 45 cents to Muncie and 46 cents to Marion, minimum 50,000 pounds, which are 27.5 per cent of the contemporaneous first-class rates were established on December 9, 1930. Complainant seeks reparation to these rates. Defendants instance contemporaneous rates on this commodity, among which are the following: Ensley to Chicago, Ill., 683 miles, 80 cents; Ensley to Cleveland, Ohio, 764 miles, 86 cents; Atlanta, Ga., to Marion, 548 miles, 75 cents; Birmingham, Ala., to Radford, Va., 561 miles, 71 cents; Memphis, Tenn., to Pelham, Ga., 537 miles, 72 cents; Little Rock, Ark., to Indianapolis, Ind., 562 miles, 81 cents; Alexandria, La., to Aurora, Mo., 532 miles, 72 cents. The movement under the compared rates is not shown. The applicable rates of 73 cents to Muncie, and 76 cents to Marion, yielded 27.3 and 26.9 mills per ton-mile and 59.7 and 55.6 cents per car-mile, respectively, based on the average loading of 43,720 pounds to Muncie and the actual loading of 41,300 pounds to Marion. The rates of 45 and 46 cents would yield ton-mile earnings of 16.8 and 16.3 mills and car-mile earnings of 42 and 40 cents, respectively, based on a loading of 50,000 pounds. The per car charges at the rates sought based on a minimum of 50,000 pounds exceed the per car charges at the assailed rates based on a minimum of 30,000 pounds. In Hill, Hubbell & Co. v. Abilene & Southern Ry. Co., 159 I. C. C. 361, the applicable fifth-class rates on pipe coating from Tulsa and Hale station, Okla., to destinations in various States, including Illinois, Indiana, Mississippi, Tennessee, Alabama, and Georgia were found unreasonable to the extent that they exceeded 27.5 per cent of the consolidated southwestern scale of first-class rates, and reparation was awarded. We find that the applicable rates were unreasonable to the extent that they exceeded rates of 45 cents to Muncie and 46 cents to Marion, minimum 50,000 pounds; that complainant made the shipments as described and paid and bore the charges thereon and was damaged in the amount of the difference between the charges paid and those which would have accrued at the rates herein found reasonable; and that it is entitled to reparation, with interest. Complainant should comply with Rule V of the Rules of Practice. Collection of the outstanding undercharges may be waived. 190 I. C. C. |