Interstate Commerce Commission and Southern Pacific Company, a Corporation v. The Martin Brothers Box Company, a Corporation

HEALY, Bеfore POPE and CHAM- BERS, Judges. Circuit HEALY, Judge. Circuit appellee, October of 1947 hereafter generally Martin, called filed a with the Interstate Commerce Commis- alleging sion Jan- uary September 30, 1947, 1 to the South- Company duty ern Pacific failed in its provide and furnish with an adequate supply cars for box the trans- portation products of its manufactured Oregon Oakland, plant from its to inter- destinations, 1(4) in violation state of § (11) and 3(1) § Interstate Act, 1(4) Commerce § U.S.C.A. engaged complaint period (11) S(l).1 was The relief asked and § any order com- unreasonable or unlawful enter an otherwise that the Commission manding provide practice, alleged, to of sec- Pacific violation Southern equal furnishing adequate not and tion furnishing of the act in or Martin with * * * Oregon, complainant, Oakland, to various1 cars to service from subjected destinations, pay in or sum Martin a [Southern and to Pacific] plainant by way any prejudice in viola- million dollars undue excess of two damages. complaint tion intervened of section 3.” was Pacific The Southern petitioned material al- ordered denied the dismissed.3 Martin and in its answer petition legations complaint. for reconsideration and its denied Commission the entire assigned formal for matter was The membership. unanimous vote hearings for the an examiner before hearings Following Martin such then filed a Commission. report naming proposed court and below the Commission the examiner recommending find the United Commission States as defendants. that the duty complaint in its failed asked that the Commission’s Pacific that Southern variety adequate to Mar- order for a car service be set aside as invalid furnish damages awarded the of One of be reasons. these was tin and approximately order lacks a rational because the basis in the amount latter findings Exceptions support $135,000 do not the Commission’s failure.2 report were taken conclusions. Another was that the Com- the examiner’s Pacific, Mar- and after mission’s of fact show that Martin and Southern argument damaged repa- and is entitled Division 3 of tin was findings supрort ration, report under no order here and that such and made the assigned Commission, conclusion. Other reasons In its attack. “Conclusions,” made, heading misapplied were that under the among others, following arbitrary ultimate action was and law and that its capricious. finding: has The court was asked to en- find that “We join Pacific] set aside the order and to re- and failed to establish [Southern provides: part 1(4) recommended material No Section subjected every duty common railroad be the “It shall provide part prejudice subject in contravention to undue carrier transportation reason- Act. 3 of the Section furnish and ** therefor, request able may note here that the examiner’s We binding 1(11) provides: “It shall were not on the recommendations Section every duty sub- Radio carrier railroad Commission. See Co., 266, 285-286, part ject furnish safe and ade- Nelson Bros. to this establish, quate L.Ed. ob- where and to car service “Complaint just serve, said: is also made and reasonable the Court and enforce adopt practices regulations, rules, with re- the commission not every unjust service; But spect recommendations of its examiner. to car responsibility regulation, rule, had the the commission unreasonable liberty respect not practice to car service decision and was required prohibited be unlawful.” to reach own conclusions declared to was upon any holding 3(1) evidence.” While this makes it unlawful Section give any action of the Radio undue or un- had to do with mission, Com make or carrier advantage preference have found in the authorities we or reasonable any particular principle locality, firm, person, indication that the same re- subject applicable holdings territory; district, of the Inter gion, or to or territories, Inter- any Commerce Commission. See state City concerns of such any Transp. D.C., States, description any particular Co. v. United of trafile to F.Supp. prejudice the same or dis- where or unreasonable undue applied respеct principle advantage to a decision of the whatsoever. Commission, Commerce Interstate finding proposed the examiner supra. citing Co., Nelson court Bros. response violation to the claim of inwas requiring Bros. Box rail 3. Martin Co. v. Southern Pa- carriers statute cific, request.” 280 I.C.C. 395. “on furnish rates, process mand the the Commission with “The stuff fluid case to damages changing the and directions to award such resultant of factors —the weighed. shall find to be entitled to. court Martin must be valued as aswell again Congress delegated Southern intervened. On Pacific has therefore transportation policy the basis of the before the Com- record enforcement of findings permanent expert body charged mission the fact a court and has duty being responsive and conclusions of law to the effect that it with the report dynamic transportation the Commission’s and order the problems.” are character of supported by not Judgment substantial evidence. Board of Trade of Kansas vacating City, Statеs, 534, was entered the order Mo. v. United 314 U.S. remanding 546, 366, 372, the cause to the Commis- 62 S.Ct. 86 L.Ed. 432. sion with directions take further ac- appears from the court’s tion not inconsistent with court’s regarded decision that it the conclusions decision. The matter before us on Commission, quoted above, as con appeal judgment. from the findings clusions of law rather than as Preliminary approach to discussion ultimate fact.4 Such is er the case it is well to notice repeatedly the narrow roneous. The courts have scope judicial pointed review of the Commis out that whether rates or long-established practices sion’s orders. It is a “unduly are “reasonable” or principle prejudicial” that such orders are not to be are factual determinations Congress set judgment aside a court if are within confided to the statutory power Commission’s are discretion of the Commission. That supported by substantial evidence. In this must be so is manifest since the terstate Commerce Commission v. Union sections of the Act involved contаin no Co., 541, 547, Pacific R. R. 222 U.S. 32 definition of what is reasonable or un 108, S.Ct. 56 L.Ed. 308. To consider or what constitutes undue weight prejudice. quote of the evidence before the Com We from or summarize mission, Virginian or the soundness of the a Ry. reason few of the decisions. In ing by which States, its conclusions Co. v. supra, United 272 U.S. at reached, beyond province page 665, page 225, 47 S.Ct. it was Virginian Ry. courts. Co. v. held: reasonableness, United “The States, 658, 663, 222, 272 U.S. prejudice, 47 like that S.Ct. of undue is a deter- 71 L.Ed. 463. The courts have historical mination of a fact a tribunal ‘informed ” ly findings ascribed to the by experience.’ the Com In Nashville C. & St. strength judg Ry. “the due Tennessee, 318, to the 322, L. v. U.S. appointed by ments of a tribunal 583, 585, law 67 L.Ed. it was said: by experience.” and informed preference Illinois “Whether discrimination Central R. R. Co.v. undue, unjust Interstate Commerce unreasonable or is narily is ordi- Commission, 441, ‍‌​‌​‌‌‌​‌​​​​‌​‌​​​​‌‌‌​​‌‌​‌​​​​​‌​‌‌‌​​​​‌‌‌​‌‍454, 206 U.S. 27 S.Ct. left Commission for deci- 700, 704, 51 sion; L.Ed. 1128. It must not be and the determination is forgotten reviewing made, fact, question court was on the mat- transportation proved particular here confronted with in the And ters case.” involving problems Hoyt many Swayne States, factors and v. & United calling the exercise of informed ad 57 S.Ct. L.Ed. judgment. ministrative As was that whether observed the Court said a discrimina- Supreme involving Court a case or services is undue tion rates or un- * * previ- considering record, 4. In its said: “I the whole court ously charged heading indicated that the court While it is true that under the duty determining report in its whether denominated “Conclusions” law, there is a rational basis for the Gommis- stated conclusions of Or, sion’s conclusions. stated different- also made factual conclusions and ulti- ly, heading, whether the Commission’s conclusions mate under the same supported evidence, substantial regarded 80,675 always increased from in 1939 to been reasonable has 162,418 peculiarly committed ap- body, upon an based administrative affecting “Another factor de- preciation circum- facts and of all the supply fendant’s car was a affecting Cf. also the traffic. stances reversal of flow over the main traffic States, 10 Co. United Johnston Seed During its lines aftеr the war. Cir., 191 F.2d westward, war the flow main with the close of hostilities Commissiontook In its theater, Pacific the main flowbecame background prevail notice of conditions During eastward. defend- ing during complaint period, saying: the originated ant connecting and to its delivered II, “After close of World War many carriers more load- experienced a the Nation great a whole ed cars than it from such received development, and industrial During connections. and war during railroads 1947 the Nation’s postwar periods it exerted extensive experienced since for the first time efforts to conserve increase and its 1920, except period, in an the war facilities. facts On these the de- shortage average daily * cars. fendant cannot be held accountable ** During 1947 the national general shortages for on its lines shortage 18,672 cars, daily and by period within the covered individually faced the defendant was complaint.” shortage average daily with an support This resume of conditions has types for 583 cars of the used record, indeed, many in the in and its transportation products. of forest knowledge. aspects, in common In such surplus sizeable ex- Because of the circumstances it was inevitable that car- II, perienced prior to World War complaints by riers would faced with including be railroads, the Nation’s shippers, and the record shows that dur- anticipate defendant, the un- did not ing period in Southern usual demand for cars that arose Pacific received thousands com- plaints. “In to the increases addition impartially general The Commission and at traffic on the defendant’s length during great summarized evidence and after War World lines by party complaining II, experienced adduced both also a tremendous by particular products do the carrier. In in forest traffic. increase * * * qijjg summary prin- distortion we discover a defendant is the cipal Oregcn, the record made before examiner.5 carrier summary much recites evi- number of cars loaded with forest While part sup- which products dence on Martin’s would its Portland division on testimony road in the that did not re- is substantial rier’s witnesses 5. There during quire com- written orders be cars to the effect that record period placed, plaint oral orders honored to South- were information employees as to when clear and definite Martin’s Martin’s ern Pacific daily conflicting, need. Evidence for the carrier dis- cars the need for shippers representative submitted oral told Mar- closes that when the road’s by telephone otherwise, representative orders, it was it was es- tin’s sales practice agents place shipper of the carrier’s to re- definite for the sential writing printed duce them order so as remove the confusion car orders testimony sup- Pads these forms forms. were con- as to needs. shippers. Also, required plied all there was sub- number of cars flict as showing during day day. the emer- was shown stantial gency Martin from It pro practice carrier endeavored to rate of Southern Pacific to be shippers of lumber so cars between furnish cars to the of lumber equitable might including Martin, Oregon, when clear and distribution placing supply. orders for available definite were received. appears testimony of the car- from ruling favor, port its conclusions the resume in its substantially showing points stated: “The evidence establishes the carrier’s January 30, 1947, example, from opposite to June For direction. plainant practically report: all of the quote portion received we specific car orders cars written support “In of its contention placed; in the com- were plaint period that thereafter aon were distributed furnished cars were more basis, showed the defendant orders, requested than were though written concerned that complainant delays experienced; some than it received more cars required, complainant desired, that attempted orders,6 requested by whereas written car to secure additional cars including lines, on its defendant; em- that defendant and its division, on the Portland were furnished ployees reasonable, and sometimes average per the cars cent of successful, efforts to furnish additional January 1 to ordered them. From complainant; cars to reason June cars were furnished inability secure cars at all times complete practically when needed was unable to compliance orders, and with written car it; placed fill some orders with period in the remainder more cars of the during daily defendant suffered a 1947 furnished, then ordered some were but shortage freight cars; 583 that such delay latter was encountered. In the shortage general was a one for which no period, ship- the distribution of responsibility placed upon direct can be including pers division, on the Portland defendant; and that it is not shown that complainant, per- was made on a unduly shippers other defendant favored centage-of-quota basis; is, if the complainant.” [Emphasis than ours.] supply day particular available car on a disрosing shipper’s aggregate complaint In only per of the was 50 cent of the “Complainant capacity the leges said: al- district, shipper Commission of the each 1(4), violations of section assigned section only per quota, 50 cent 1(11) 3(1) and section of the Interstate assigned except that no cars would be Commerce Act. Under those sections shipper a which had no file. orders on required, part, pro- defendant in is During com- the first months of the transportation upon vide and furnish shortage plaint period, the car request; reasonable adequate to furnish safe and during period; severe as the later but establish, car service ob- shortage exist, some and cars were serve, just and enforce and reasonable allegedly shipper distributed to each rules, regulations, practices with re- proportion empty the number of cars spect service; make, to car and not to available.” give, any or cause undue or unreasonable summary attention Later was preference advantage any particu- or record called to evidence person, company, locality, lar ry. or territo- kept upon right were on hand shipper number of cars cars, The of a how- siding days complainant’s ever, right for several not an absolute and the during complaint period. of the much carrier is not liable if its failure to fur- days, on hand two were One car was nish cars was the result of sudden and days, great eleven were on hand on 5 on hand demands which it had no reason days, twenty-two days, apprehend hand on on and to would be made and which days. reasonably fifty-six hand on 3 Com- The it could not on have been ex- thought pected these facts were to meet full. The law exacts in consideration the com- what is reasonable from relevant such car- ability riers, requires plainant’s load cars in addi- at the same time they equally furnished. which were should be reasonable tion those See footnote judgment district court The patrons. case of treatment thеir unexpected shortage reversed. occasioned ship- demands, treat bound to Judge CHAMBERS, (concur- Circuit identically. [Citing pers fairly, if not ring). Considering above, in authorities.] record, light we of this the facts Interstate Com- examiner hearings failed to has conclude that merce Commission who held 1 and complaint violation sections Box establish Martin Brothers alleged.” Company found an unfair discrimination Company. Pacific He rec- Southern analyzed in detail damages repa- ommended substantial showing respect shipper’s to dam- thought I district court ration. If ages to have been sustained claimed and this court had the same latitude with shipper’s shortage of cars at reason of a reviewing respect order of In- Oregon, plant. Oakland, observed terstate Commerce Commission computations shipper’s following reject- Commission has year, “no entire made for the ing examiner, recommendation arriving at a method indicated uphold I would the examiner. vote to estimate They great period. ground extent are based But on under the rec- operation clearly ord the was not corrugated-box Aurora, wrong plant there was undue dis- way in no affected crimination under the circumstances plaint case, Oak- the situation I in the result reached concur Further, Judge Healy. held the Commission land.” If the Commission had comparisons inapposite certain found there was undue discrimination years. prior shipper con- In its with the under the evidence it could not point join Judge damages, this the clusions on fix then I would presented Pope. falls found that “the evidence requirements pro- in a far of the short of There is evidence here substantial ceeding support an of this character damage shortage. caused the If special reparation. award of Where legally responsible, Southern Pacific is damages sought, proof the thereof up then the should come would and certain as must as definite be figure damage, with a reasonable for this necessary principles under established be intelligent and an estimate would be judgment support a in court.” law to satisfactory. [Citing previous decisions.] POPE, Judge (dissenting). Circuit majority opinion of the court are of A Judge Healy’s damages many proof shipper’s cites the leading Supreme sufficiently supported the specific the to have decisions noting scope judicial Court had the narrow amount the Commis- in some award shipper review of the Commission’s the orders. in favor of the on sion held length According- quotes statutory at considerable the author- violation. issue of referring predicated grounds ities ly to the deference due the decision is our findings developed preced- of a tribunal “informed ex- other than unfortunately perience”. ing But paragraph. argu- argument 7. An afford no basis is advanced Com- misinterpreted requirements ment. mission significant 3(1) In of the Com- this connection Interstate of section Act, much it is recall that even the relied re- in that said to have be- merce port of examiner did not could be no violation of the recommend there lieved preference subjected finding ex- the carrier unless undue section competitors complain- prejudice undue tended (cid:127) ing shipper. of section 3 of the The Commission’s contravention Act. See footnote above. agent impecca- the Oakland here, this is admitted right those of the matter Among application the conclu- of the defendant.” have ble authorities sions of “Complainant desired, required that: not the one This is facts of this case. language quot- and at- of case to which kind tempted to additional cars from Supreme secure is addressed. Court from the ed any question defendant.” Nor is contrary, in which is a case this On the evidence, here made “rea- but that both all of the request” carrier, sonable meaning within the shows therefor plainant that of 1(4) Act, certainty unlaw- was an § that there with 1(4). preju- C.A. There is no preference § unreasonable ful request complain- disadvantage was not made. to the dice and meaning of Act. ant within the my view the heart of this case re- evidence whatever There was no agency arbitrary, lates to action which is contrary. Furthermore, Commis- capricious and an abuse of discretion be- this, account of failure to take sion’s disregard undisputed cause it is in ignored it, explained the fact that it by indisputable evidence; because it mis- demonstrable the Commission’s basis; has no rational and because it disregarding wholly stat- of law in take proceeds upon misapprehension beyond utory standards. But above and applicable sections of the Act and hence disregards fact decision here that the it is not in I accordance law. If am rights involved, shipper I right in these views as to where Com- demonstrated, pro- I think it can be disregarded facts, and as pose do, if decision stands misinterpreted law, how it there can wholly proceed, the railroads can without authority no doubt as to the be Commission, hindrance from so to reviewing agency court to set the action among shippеrs pick and choose 1009(e). aside. U.S.C.A. § exercising will, many instances, opinion discloses, prevailing As the power say which industries shall live part upon an al- was based happened which shall die. What has leged 3(1) violation of of the Act which § appears here abnegation to me be an unthinkable shall unlawful for a car- recites that it be duties the its Commis- make, give, any rier or cause undue “to sion. advantage preference or or unreasonable important I think it is to note here any person, company, firm, particular to allegations that of the certain * * * any respect whatsoever; in disputed before the Commissionwere not subject any particular person, com- to company upon the and that defendant * * * any pany, firm to undue or un- findings issues the of the those Commis- disadvantage prejudice or support complaint. sion the Thus there any respect I think that whatsoever.” complainant is no here that the complainant only evidence the not the desired, required attеmpted pro- and to well, an carrier as shows got. that of the report but cure more cars than it preference and unreasonable unlawful of the Commission recites: “The com- plainant disadvantage prejudice the within generally that indicated it want- meaning true Act.1 It is that in ed more cars than were furnished and during Judge pe- same the Healy’s plant, complainant’s 2 and 7 1. Footnotes suggest amount “a considerable did not encountered riod, examiner that large lumber He cited delay”. the railroad recommend a preju subjected ordered cars Portland at company to undue complainant difficulty no experienced “and Exactly by phone of section dice violation obtaining pointed out, Ho cars.” The examiner is the case. contrary (note infra), showing hereafter six I do the tabulations recited Eugene complainant distribution and carrier’s Portland, Salem shippers percentage carriers) orders competing of written (served “encoun the basis receiving undеr circurn- irrational filed was cars”, while delay little tered freight-car complainant’s quota was fixed recited: Commission its conclusions day, un- 5 cars a or the same as that as that defendant not shown “That it is signed of the Oak duly to the former owner than other favored land told that plainant;” mill. He was later I think changed quota day, 10 cars a correctly would be found that and court held shortage there reaching but that of the car conclusion because ‘unduly’ could upon and doubt that the word rode too hard quota.” any per upon than cent of its find- more based such conclusion misreading ings and of fact but recited The Commission’s statutory pro- misinterpretation complainant’s length history just alluded to. vision purchase mill and of how of the Oakland enlarged mill were the facilities of that recited at considera- output multiplied. improved testimony given and its length by one of ble findings show that stopped The Commission’s complainant’s who salesmen enlarging plans mill and for taking these intervals and at different orders freight require go increase permitted Oakland to aid day per discussed ments to 13 cars were attempt more cars to obtain com with its there before the officers complainant. that the Com- It is obvious options buy testimony plainant exercised its fully credited his of the Commission mill. The part said a what this witness it made quotas quotation last made in findings: Medford, trips “He recog to, necessarily a are referred Oreg., divi- on the defendant’s and called day, “quota” of five cars agent nition that freight passenger who sion n assigned former same as that agreed do all he could to afford relief. mill, owner of the would have relation freight the defendant’s He also called on requirements whatever the reasonable manager at Portland discussed traffic complainant.2 At rate it must be In one discussion with the situation. requirements taken that informed that official he was also: stated discriminate, these letters stances, and calculated quick secure relief from we can “complainant “Unless lie concluded company, required your good we will be fair share of the not receive plant something * * * until to shut down the and that defendant available twenty out for us. Some be worked can furnished have should about percentage twenty-five manufactured carloads of requirements, to material, including percent of its perishables shook for figure it admits fur- housing lumber, are on our dock at and Oakland, average nished on awaiting cars, Oregon, lit- period.” It was lines on its produc- erally have choked off additional resulting complain- discrimination, this get August 6, we cars.” On tion until getting share,” upon fair “its ant not al- the carrier was advised that examiner’s recommendation of which long pull though more for the would be reparation was based. requirements, required: “Our minimum properly makes no allu- 2. The Commission keep plant running our at in order to a to a claim the carrier that sion require minimum, we not less than 150 complainant’s requests for cars were con- per The same file contains cars month.” (This flicting mat- or uncertain. is the telegrаms copies and from letters to in the court’s footnote 5 referred ter early August 30, plainant from as later.) I shall refer The record to which September 26, as late as to no- that the carrier had written requesting desperation discloses in terms of that it requirements. complainant’s De- tice more ears. In view of these be furnished requests, a Exhibit 12 is file of letters fendant’s of which was written neither telegrams complied with, from cannot received the com- ever the defendant including July plainant two letters dated been in doubt as to what was re- have quested. 30,1946, sent to defendant at No doubt if the calculation were one San Angeles, points Los 4 decimal there Francisco and the other at out to or carried difference 36 cars in which the carrier was advised that the complainant would be some between requirement per month, per had minimum week and 150 cars so that a empty per microscopically viewed thus these two cars week. one day; is nor nished at cars a least seven this is аdmitted the Oak- finding agent appears land therewith. inconsistent the defendant. It blanks, that the written car order which my opinion mis- majority view were filled out to defend- report. Thus interprets commission’s agent complainant ant’s after the knew through way than half little more a opinion assigned what cars had been it example, we “For it stated: particular day, large * * were to a ex- portion report: quote of the nothing tent more than written con- copied paragraph follows Then firmation, records, for the defendant’s report. The quoted from the complainant wanted the cars paragraph gives impression that this assigned that had been it for that quoted what out context was thus day.” It no found. Commission thing. found, recital the Com- Thus the It was a mere Commission as did the argued. judge, This trial of what defendant the written car orders placed by only plain complainant use of the from the is not with the de- appears “allegedly” in the word fendant were no indication the num- line, clearly required. try evi- ber of last but it cars next To to read the report. paragraph quoted majority opin- dent the text representing finding ion as some its own The Commissionmade Commission, would be to convict the respect car orders to these written meaningless play Commission of a on argument. quoted Aft- referred quoted par- words. The statement in the explaining orders were how those er agraph “during period up, concerned em- made ployee —that go received more the carrier’s local cars than would requested by agent telephoning orders”, the defend- it written car and after wholly Eugene how find out at irrelevant view of ant’s office many the Commis- assigned had to com- the written cars been sion’s car orders plainant day, then he would make were made the manner out described thus orders for the cars and had no the written relation out proceeds: assigned, complainant’s request require- the Commission generally indicated ments.3 There is evidence “The whatever accepted were fur- it wanted morе cars than this ir- requests day. per could called 8.4 written carloads sets “conflicting”. days per throughout week or At 5 found that here be, per month, “complainant days whichever orders day. Nelson, plus per operation is 7 were sufficient for Oak- amount manager freight capacity during plant period.” land defendant’s traffic testify proceeded lengths an effort conflict- then to recite who made go ing orders, demonstrated his in- to which had to reason simple inability operate ability capacity, make this mathematical of its its testimony resorting by truck, his based as to to deliveries can- calculation orders, divergent celling having some orders what to turn employee products. him. This defendant told to other simple hearsay relating to conversations There can be no doubt but that the Com- company employees was not with other language quoted mission understood this only disregarded by the Commission but majority opinion being in the as re- but a obviously no it furnished excuse for a argued cital of what the defendant and complainant to determine that failure copied nothing paragraph more for it that requesting per less than was 7 cars report from the of the examiner whose day. general findings were in favor the com- report sufficiently plainant. The Commission’s The Commission must un- have complainant’s framing that needs discloses derstood examiner in this requests. equal report paragraph making least The its to be a mere recital of complainant’s party’s refers to the estimate contention and must have in- president production capacity that its in was cluded it like with intent. suggesting suggestion important rational was cars available.” it But without capacity more than this and received cars witness of whose extensive those listed in the written orders. research speaks highly, so whom was one the Com- There is much more evidence obliged credit, mission was and believe accepted the Commission credited and yet apparent it is statistics and testimony whom it describ- of a witness records furnished it- defendant person trans- ed considerable as “a compelled self a conclusion that the facts summary portation experience”. Its were in accord this with what witness this of the records witness’ tabulations discovered. of car and his orders and deliveries testimony judge generally copied in the re- in his shows port greatest period from re- that even verbatim the recommended before the shortage port July, August, September, in of the examiner. The Commission and plaintiff person’s testimony already receiving to this to the refers filling delay Taking fig- car orders short end of effect that the stick. his noncompetitive points exhibits, ures occurred from the defendant’s he Oakland, Oregon, complainant’s April, 1947, shows where the month of slight when mill was refers located. was “a box car short- age” shortage his from tabulation taken the defend- for one week and no relating weeks, general- ant’s ear two order records to orders and when users ly and deliveries to three at Eu- the Portland division were fur- gene, Portland, Salem, ordered, two at and one at nished of the box cars 92% during plaintiff July, August September, received 40 such cars. As- delay suming greatest period day require- when the month and a respect request ment occurred in per day, car of seven cars respect this April orders. It is recited with means complain- to the that even in July Septem- receiving only ant that “from of its needs 40/147 ber, slightly inclusive, against a considerable amount of more than 27% receiving delay aggre- cars was furnished encountered. users 92% They (the gate. tabulations) also indicat- The trial court showed from the ed that six encountered lit- same exhibits of the defendant delay receiving during pe- May, tle cars the month of when there was no * * During shortage prior cars, riod plaintiff covered *. of box received complaint period, witness was cars or of its assumed 54/147 36% manager large requirements. traffic of a lumber com- pany plant with its main at Portland. question, however, The real is how did company by phone That ordered its cars August plaintiff July, Sep- fare experienced difficulty in obtain- tember? Defendant’s exhibit 31 shows ing from the defendant upon its Portland division taken as 1947.” supplied whole of the cars or- 77% plain It is that the examiner who July. heard dered in the month of Its exhibit person, this and the other witnesses 41 shows that in that month testimony fully credited that cars,4 for he received a total of 62 or less than “during requested found that requirements. Jan- In 50% uary September inclusive, August complain- the month of the same exhibits showing ant not receive its fair share of the make an overall of all 65% referring cars, 4. refrigerator to the number of cars were counted as the equivalent depending upon the trial court and in of one box car Commission, that of the numbers the size of the box car ordered. This was “adjusted” are the totals. Some of the in accordance with a service order of the refrigerator recognized cars furnished were cars in Commission which this ratio. place of box cars. As these cars lacked The totals arrived at in this manner were capacity cars, “adjusted” the of box two or three referred to as the totals. generally, quoted Com- sentence is the The last were furnished cars ordered mission’s-finding. significance got in the complainant 58 or Its by a total while require- position slightly clear taken its case is made the than less 40% figures by September filed are the Commission in its brief For the ments. al- 58 cars or this court which “The record overall and states: furnished 58% supplied complainant. appellee so show was sub- to the fails to that 40% jected competition produced since it I do not think the en- wirebound and was not boxes discrepancies. this overlooked evidence of gaged in sale of as such. In the lumber Nor witness was the evidence of the proof competition the absence allegation an challenged mentioned, or his tabulations prejudice prefer- undue by re the carrier.5 The Commission’s ence cannot be I think that sustained.” port ig simply on its shows face that it this is clue to otherwise unex- the disregarded undisputed nored and thеse ig- plained action facts because of a error on fundamental noring undisputed dis- evidence of part the meaning of the as to the respect crimination. With this the of the Act. states: judge “Nothing said: in the Act “In rebuttal of evidence in behalf of the and no decision I able to have been complainant purporting to indicate that permits find discrimination as between shippers Portland, Eugene, and other shippers merely not in because are general terminals in serv received better type the same of business and therefore complainant, ice than defend against compete do not each other.” points ant out that has upon competition that it is clear and au- not shown both reason with right thority judge any shipper the trial was points, at such and that ‍‌​‌​‌‌‌​‌​​​​‌​‌​​​​‌‌‌​​‌‌​‌​​​​​‌​‌‌‌​​​​‌‌‌​‌‍con law, in this statement of and because affecting ditions and circumstances compels the record the conclusion promptness supply of car at terminals proceeded upon the Commission here give shippers necessarily are such as misapprehension same law and the advantage there located a over natural meaning quoted Act which points. at nonterminal At ter brief, from the I above Commission’s yard engines usually minals em judge opinion am of the that the trial ployed on a 24 hour basis and there is right setting Commis- was aside the generally an influx of loads to the ter order. sion’s produce empty minals which cars. The pro- has not established under the doctrine Of course competitors cases, unduly preferred its which are was in the some of nounced majority relating by practices opinion the defendant here cited judicial (Emphasis supplied.) scope of the Com- review assailed.” by part by pointed judge quoted would the trial court: “We 5. As out the trial findings, orders consideration the car No. VI of his into take attempt also filed mill.” lie for the a witness you carrier, mill furnish to the chief su- Would “Q. clerk of its division said: pe- perintendent, on file? if there were car orders to show indicated, put As аbove effect No sir.” riod carrier into A. up- rationing presence car orders or or absence of written distribution rule based significance respect production capacity ship- on the of its were without requirements whereby pers industry re- or in the lumber each the quests. sys- rationing proportionate get distribution A or would share of kind witness described total cars available. as the court But tem theory system notes, completely proceeded al- up- must be based nullified because the distribution witness disclosed location theory proceeding upon number of orders measured carrier naturally obligation in this case result with re- on file would was limited spect defend- discrimination which the and the other records disclose. number of written ant’s orders on file. This testified as witness 822 finding States, orders, Com Ass’n v. 321 U.S. Carriers United

mission’s 194, 668; 210, 499, upon L.Ed. of whether S.Ct. Chicago, M., “undue United v. P. case States St. & in a not there exists Co., 462, preference P. R. or advan U.S. S.Ct. or unreasonable tage” upon 79 L.Ed. 1023. court re will not be disturbed long is “warrant so as therе view Notwithstanding judge, in the lan “rational basis record” and a guage quoted, challenged appellants But conclusions”. Commission’s something here to find Act and applied has where there rule cannot be some decision which he said he had not disregard statutory standards. been a of permits been able to find which discrimi Jersey v. United Central R. Co. of New shippers nation as between because 80, 247, States, 66 L. 257 U.S. compete, appellants do not have not where, case, or as Ed. 217. such a undertaken here to cite the decision of here, without was rendered the order any court to such effect.6 it, support “the evidence whatever According position taken question involves of consideration such a pro Commission the carrier could with law, fact, of but one an not issue priety say to Martin Brothers: “You duty ex the courts to it is the only are the manufacturer of wire bound Florida East Coast amine and decide.” shipping boxes over our line and since States, 167, 234 U.S. R. Co. v. United you competitors give yоu have no will we 872, 867, 185, 58 L.Ed. 1267. 34 S.Ct. just many please;” or, cars as we elementary upon a I think (as complainant’s president testified it this, the Commission’s review such say) expect “You cannot us to take supported sufficient must be decision shippers good cars from pay- with a adequate record. Even give bottom load you them to to whether doubt as if were wire bound boxes.” upon proceeding Of course It is theory well must be de- established involving certain proof transportation cases relief in the absence nied charges, competitive service and yet very competition, existence condi may justify diversity tions and without more alone service or the doubt would Barringer States, require order because rates. & of its Co. v. United reversal 7, clarity inadequacy and lack of 63 S.Ct. 87 L.Ed. Examples ship Eastern-Central Motor of such cases See are where the record. support competitive authority present only cited conditions were not 6. The Lynchburg. quoted from the Com statement The case was above therefore applied decisions one brief three covered rule in Bar- mission’s Pennsyl ringer States, & v. & Americus Co. Co. v. United infra. The Commission: R, 5, 10; thing Co., Cali 181 I.C.C. same is true of R. the other two vania cases Corp. Atchison, T. cited. Oil fornia Cotton Co., 97, 105; Ry. Traf 218 I.C.C. & F.S. 7. Whether this conversation did or did not Bureau, Lynchburg Cham. of ‍‌​‌​‌‌‌​‌​​​​‌​‌​​​​‌‌‌​​‌‌​‌​​​​​‌​‌‌‌​​​​‌‌‌​‌‍Com. v. fic place, possibility take that a carrier Ry. Co., 234 I.C.C. & O. C. might be moved such considerations any bear the cases cited has None why discloses a reason the Commission’s point upon ing here discussed. The necessity complain- attitude toward the case involved last cited showing competitor ant favoritism to a shipments sugar from on carload rates wholly unacceptable. surely It was not Lynchburg, Va., Maryland, Baltimore, purpose Congress put it within compared unreasonable when with power of a carrier to determine what commodity from Balti same rates on the sort of commerce shall move and what and Charlottesville. more to Richmond by furnishing not move shall unjust allegation of dis Not was the lucrative traffic more hearing withdrawn at crimination refusing cars to with less complaint was based dismissal of the paying justifying traffic and the discrimi- of motor truck and water ground competition nation on the the latter are the rates which affected competition Richmond and Charlottesville but which with the former.

823 competitors. competition favored treatment are his one line meet ments over higher & R. Co. v. an Thus in Baltimore Ohio over demand rates than 507, States, 59 competition S.Ct. United 305 U.S. exists.8 where other line 284, Barringer case, 318, the held that 83 L.Ed. the court pointed out But as properly car- ordered 9, supra, page at at S.Ct. 319 U.S. furnishing storage applica from riers to refrain page 972, principle has no preferred warehousing group of to a kind here to a tion whatever present. case large shippers. is true that While it have re “We The court said: practices was finding result of the railroad’s the peatedly Com the sustained a competition on the difference, railroads between the such based mission that hand and the of other ware- identity shippers one owners or in a difference yet other, goods houses on the vice of the ownership shipped, the the arrangement held the court to irrelevant on other circumstances unjust rise from the discrimination between shippers. rendered, carrier is an service page 524, (Emphasis The said at shippers.” court discrimination page 290, U.S., of 305 at S.Ct. added.) Thus Interstate Commerce rates, R., carrier as U. “Since warehouse v. R. Balt. & Ohio 1107, Commission, 326, found the Court and 56 L.Ed. S. 32 S.Ct. open alleged not all alike there is vio- re unlawful discrimination prohibiting transpor 3(1) lation sections 2 and to a different rate for the lated preju- discrimination point and unreasonable of coal to a for the use tation dice.” than for coal to the same of railroads shippers. There,

point for other Obviously it did not occur to court course, shipping rail the railroads make its statement read: “are not competition road fuel-coal were not open competing shippers to all alike”. argued: shippers. other It was with the among appears per- case it shipped fuel coal thus was not The sons favored were distributors flour. competition with commercial coal my To mind it would be unthinkable that Alluding shipped point. same the discriminations involved could court “But such features this the said: upheld permitted if the carriers all carriage, qualify al not do affect flour, exception distributors of without get service, the essential ter special warehousing services, have the place to another. an article one just privilege so those denied this were greater or inducement to seek less not distributors of flour. In Louisville com service not service. Such States, & N. R. Co. United U.S. therefore, petition, is as extraneous prac- 51 S.Ct. L.Ed. transportation as the instances in hauling by tice condemned was free added.) (Emphasis cited.” the cases belonging private carriers to oth- belonging er carriers. Private cars court was unable rеason persons charg- and concerns were permits discrimi- find a decision that Although like services. ed the own- shippers merely be- between nation as charged ers of cars thus not type in the same are not cause competition with the carriers who had compete against do each business service, argued free was not even my opinion primarily other, due competition justi- the lack would urged rule here the fact fy discrimination. has never occurred to unlaw- The fact court. Decisions here point exclusively 3(1) violation of located at reached ful discrimination § suggested line, shipper defendant’s and the that a must favored have not were, persons receiving prove above men- witness supra, States, are collected riers Ass’n v. United Sowe of these cases page 202, page Motor Car- to Eastern-Central footnote 824 testified, points frequently

tioned at about this reference to retention of carriers, by competing judge reached cannot as cars is irrefutablе. As the pointed justify a matter of law a discrimination out the Commission based itself against complainant. finding upon Seaboard Air no ultimate these isolated Ry. States, Line Co. v. United 254 U.S. circumstances of detained cars and said 57, 24, holding As 65 L.Ed. 129. the that the of them was “relevant” “ principle complain- court said in ‘a that case: “The consideration of the ability established these is that the ant’s to cases load cars addition to ” equality statute aims establish of those furnished.’ But this rights carriage among shippers un mere comment of the Commission be- significance substantially of der comes no similar circumstances view conditions, exigencies conclusion that and that desired competition required justify cars in do not discrimina addition to those against shippers substantially Obviously tion which it received. the Com- 62, ability no page like doubt of the services.” S. page Unquestionably load the cars. Ct. at 25.9 this com- plainant lay had to off entire shifts of majority opinion, 5, The in its footnote employees suspend and had to the ac- tеstimony refers to certain in the record yards tivities its salesmen when its given by to the effect that information became stacked with finished material carrier as to ears for which it had no cars. In that sort required conflicting. 2, See note picture, might evidence that be rele- supra. supply If this be an effort complainant’s vant to a consideration of something which the Commission chose ability to load additional cars becomes or, report, to omit if be it de- too trivial merit reference. signed supplement the Commission’s Admittedly part it is of the func- findings, only say I have is it findings tion of the court below to make part of the functions of this court to disagreement of fact which would be in ‍‌​‌​‌‌‌​‌​​​​‌​‌​​​​‌‌‌​​‌‌​‌​​​​​‌​‌‌‌​​​​‌‌‌​‌‍findings make such of fact. For reasons the Commission satisfactory to the Commission it con- based substantial evidence. But cluded, shown, complain- as I have findings by here the trial court made its attempted ant needed and to secure more simple process adding a column of suggest- cars than it As I received. have figures carrier, figures furnished — above, ed is there no issue here with re- testimony which confirmed the spect complainant having made a witnesses. The request meaning within the was that the received an ad- designed Act. If footnote is justed total of 593 cars the com- request, show some lack of a reasonable plaint period average or an of 3.1 cars simply out of order here unless it working day. for each For the reasons interpreted suggestion is to as a pointed out, which I have heretofore I if be made to the Commission the mat- simply think for further ter is be remanded hear- thought unimportant this calculation body. ing by that irrelevant, making and refrained from place any computation out of Likewise for itself because of its interpretation requirements the reference some evidence that a of the Act’s days kept on number cars were certain shipper as to the treatment due a who happens on for an extended shipper hand of time. to be the on the shipping specified what trial cоurt product. I think that said line 1(9), unreasonableness discrimina- eral branch § lines Title against 1(9). tion non-competitive intermediate § Cf. United States ex rel. Pitcairn stations, Co., Cir., in favor Coal Co. v. Baltimore & O. R. competitive points, those at manifest, terminal 165 F. reversed on other expressly grounds. for discrimination is 215 U.S. 30 S.Ct. prohibited against lat- even L.Ed. 292. opin- Judge Chambers’ As noted agreed ion, I and are both he damage. evidence substantial strikingly- damage reality fully equipped box- A demonstrated. making backlog orders plant, with a product, was choked 242 carloads of for a one-shift down a three-shift cars, operation orders want inability make de-

were canceled

livery, its salesmen off the it had to take compelled road, to resort and even so was by truck and to unsuitable deliveries large adapt expend the mill for sums to products. production loss, when scaled

amount of the claimed examiner, was not down it was uncertain, speculative or as the trial points dam- If there was

court out. age duty of the Commission to it was Story reparation. Parchment Co. order Co., Patterson

v. 544; Valley 248, L.Ed. Midland Co., Cir., R. v. Excelsior Coal Co.

F.2d 183. judgment my view of the trial should be affirmed.

court

UNION PACIFIC RAILROAD COM- PANY, ‍‌​‌​‌‌‌​‌​​​​‌​‌​​​​‌‌‌​​‌‌​‌​​​​​‌​‌‌‌​​​​‌‌‌​‌‍corporation, Appellant, COMPANY,

BRIDAL VEIL LUMBER corporation, Appellee.

No. 13879. Appeals,

United States Court of

Ninth Circuit.

Jan.

Rehearing Denied March

Case Details

Case Name: Interstate Commerce Commission and Southern Pacific Company, a Corporation v. The Martin Brothers Box Company, a Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 1, 1955

Citation: 219 F.2d 811

Docket Number: 14077_1

Court Abbreviation: 9th Cir.