No. 22083 W. I. ANDERSON & COMPANY ET AL. v. SOUTHERN RAILWAY COMPANY ET AL. Submitted July 12, 1932. Decided December 30, 1932 Upon further hearing, amounts of reparation under findings in 172 I. C. C. 167, determined. Additional appearances: John T. Money for complainants; and Charles Clark and W. N. McGehee for defendants. REPORT OF THE COMMISSION ON FURTHER HEARING DIVISION 5, COMMISSIONERS LEWIS, FARRELL, AND TATE BY DIVISION 5: In the prior report, 172 I. C. C. 167, we found that the rates charged on vegetables, in straight or mixed carloads, shipped between February 15, 1927, and July 13, 1928, from certain points in Texas to destinations in the Carolinas were unreasonable, and that certain complainants had paid and borne charges and were entitled to reparation. Upon defendants' failure to certify statements under Rule V of our Rules of Practice a further hearing "to afford parties an opportunity to submit proof of shipments made and of the payment and bearing of the charges thereon and for the purpose of determining the amount of reparation due parties under the findings in this case" was held. The parties waived a proposed report. In the complaint Ned Wheeler is shown as operating under the trade name of Ned Wheeler Brokerage Company. One Edward E. Wheeler testified, no objection being made, that he paid and bore the charges on the shipments received by that company and was and is the sole owner thereof. The variance is not fatal. Compare Wausau Southern Lumber Co. v. Alabama G. S. R. Co., 182 I. C. C. 731, 734. Complainant Atlantic Produce Company, Incorporated, was dissolved subsequent to the movement of the shipments under consideration, but such dissolution does not prevent a reparation award to the corporation for disposition to the party or parties entitled to receive its assets. Boyle American Potato Co. v. Atchison, T. & S. F. Ry. Co., 176 I. C. C. 391, 395. In the complaint the partnership of Moffat B. DuPre & Company is shown as being composed of Moffat B. DuPre and Albert G. Fisher. DuPre testified that he is the sole owner of the firm but it is not clear that he has succeeded to the rights of Albert G. Fisher. Our reparation order, therefore, will be entered in the joint favor of the copartners named in the complaint. One of the complainants is described in the complaint as Foster & Canveness, Incorporated. At the hearing the correct title was shown as FosterCaveness, Incorporated. In the complaint one of the complainants is described as Cozby-Templeton, Incorporated, while in the evidence, without explanation, the name appears as Cozby-Templeton & Company, Incorporated. Apparently the first description is proper. Between pleading and proof there also are unexplained spelling variations in the names of the members of the partnership of C. C. Pearce & Company, but apparently the correct spellings are J. F. Grogans, T. B. Pearce, and C. C. Pearce, sr. In the complaint J. K. Manos is shown as trading as the Southern Fruit Company, but in the record the trade name appears, without any explanation, as the Southern Fruit and Produce Company. Apparently the former is correct. The partnership of McConnell Brothers is described in the complaint as being composed of W. C. and J. H. McConnell. Without explanation at the hearing the first initial of the last-named copartner is shown as "G" instead of "J." Apparently "J" is correct. There also is an unexplained spelling variation between the complaint and evidence with respect to the surname in the title of one of the complainants, i. e., whether the name should end with a single or a double "s." It appears, however, that the correct designation of such complainant is P. P. Leventiss & Company, Incorporated. Prior to the further hearing at least two destination lines made a check of the accuracy of the charges indicated on many of the freight bills. The latter were not introduced but were offered for inspection. Exhibits covering details of all shipments upon which reparation is claimed were introduced, and competent witnesses testified to the paying and bearing of charges and to the truth of the statements contained in the exhibits. Defendants having offered no evidence, we are justified, after correcting obvious errors and eliminating barred claims, in assuming the accuracy of the facts and figures stated in the exhibits. Compare Globe Superior Corp. v. Southern Ry. Co., 186 I. C. C. 231, 233. Upon further hearing, we find that B. L. Hine, H. S. Gore, Edward E. Wheeler, and F. J., J. D., and T. H. Strader, individuals, and P. P. Leventiss & Company, Incorporated, a corporation, received shipments as described; that they paid and bore the charges thereon; that they were damaged thereby in the amount of the difference between the charges paid and those which would have accrued under the rates found reasonable in the prior report; and that all the corporations and individuals named, including those shown in the appendix to the prior report but excepting therefrom Charles M. Britt and Ned Wheeler, are entitled to reparation, with interest, as set out in the accompanying order and in the amounts therein shown. No. 25004 PIONEER COAL & COKE COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL. Submitted September 6, 1932. Decided December 30, 1932 Rates charged on one carload of blacksmithing coal from Lilly, Pa., to Chicago, Ill., and reforwarded to Cody, Wyo., found applicable. Complaint dismissed. W. R. Stobie for complainant. Walter McFarland for defendants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MEYER, EASTMAN, AND MAHAFFIE BY DIVISION 4: Exceptions to the report proposed by the examiner were filed by complainant, who alleges by complaint filed January 18, 1932, handled under shortened procedure, that the rates charged on one carload of blacksmithing coal shipped June 11, 1928, from Lilly, Pa., to the Forty-fourth Street yard of the Chicago, Rock Island and Pacific Railway Company, Chicago, Ill., and reforwarded to Cody, Wyo., were in violation of the aggregate-of-intermediates provision of section 4 of the interstate commerce act and unreasonable. Reparation only is sought. An informal complaint alleging only that the rate charged was inapplicable was filed by complainant on May 10, 1930, and closed on August 22, 1931. The issues of unreasonableness and section 4 violation are, therefore, barred by the statute. On June 12, 1928, complainant, by an order in writing, directed the Chicago, Rock Island and Pacific Railway Company to reconsign the shipment to Cody, over the Chicago, Burlington & Quincy Railroad, after allowing it to be sacked. This order contained a Fisher. DuPre testified that he is the sole owner of the firm but it is not clear that he has succeeded to the rights of Albert G. Fisher. Our reparation order, therefore, will be entered in the joint favor of the copartners named in the complaint. One of the complainants is described in the complaint as Foster & Canveness, Incorporated. At the hearing the correct title was shown as FosterCaveness, Incorporated. In the complaint one of the complainants is described as Cozby-Templeton, Incorporated, while in the evidence, without explanation, the name appears as Cozby-Templeton & Company, Incorporated. Apparently the first description is proper. Between pleading and proof there also are unexplained spelling variations in the names of the members of the partnership of C. C. Pearce & Company, but apparently the correct spellings are J. F. Grogans, T. B. Pearce, and C. C. Pearce, sr. In the complaint J. K. Manos is shown as trading as the Southern Fruit Company, but in the record the trade name appears, without any explanation, as the Southern Fruit and Produce Company. Apparently the former is correct. The partnership of McConnell Brothers is described in the complaint as being composed of W. C. and J. H. McConnell. Without explanation at the hearing the first initial of the last-named copartner is shown as "G" instead of "J." Apparently "J" is correct. There also is an unexplained spelling variation between the complaint and evidence with respect to the surname in the title of one of the complainants, i. e., whether the name should end with a single or a double "s." It appears, however, that the correct designation of such complainant is P. P. Leventiss & Company, Incorporated. Prior to the further hearing at least two destination lines made a check of the accuracy of the charges indicated on many of the freight bills. The latter were not introduced but were offered for inspection. Exhibits covering details of all shipments upon which reparation is claimed were introduced, and competent witnesses testified to the paying and bearing of charges and to the truth of the statements contained in the exhibits. Defendants having offered no evidence, we are justified, after correcting obvious errors and eliminating barred ims, in assuming the accuracy of the facts and figures stated in hibits. Compare Globe Superior Corp. v. Southern Ry. Co., Y. C. 231, 233. further hearing, we find that B. L. Hine, H. S. Gore, Edward ler, and F. J., J. D., and T. H. Strader, individuals, and rentiss & Company, Incorporated, a corporation, received as described; that they paid and bore the charges thereon; were damaged thereby in the amount of the difference becharges paid and those which would have accrued under L the rates found reasonable in the prior report: and thai al, the 202porations and individuals named, including these shown, in the a? pendix to the prior report but excepting therefrom. Charles M. Brig and Ned Wheeler, are entitled to reparation, with interest, & sÅ ONL in the accompanying order and in the amounts therein shown. No. 25004 PIONEER COAL & COKE COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY ET AL. Submitted September 6, 1932. Decided December 30, 1932 Retes used of one cariood of blacksmithing coal from Lilly, Pa., to Chicago, H. ani survei u Cody, Wyo., found applicable. Complaint dis |