No. 1079. J. H. LEONARD v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY AND MIDLAND VALLEY RAILROAD COMPANY. Submitted October 25, 1907. Decided November 18, 1907. Complainant is entitled to recover from defendants the sum of $17.50 as reparation for unjust and unreasonable charges on specified shipments of coal caused by error in weighing made under circumstances described in the case. Burney & Sutton and C. W. Durbin for complainant. REPORT OF THE COMMISSION. PROUTY, Commissioner: The complainant seeks to recover an alleged overcharge upon two carloads of coal from Midland Valley, Ark., to Kansas City, Mo. The shipments were made, one in September and the other in October, of the year 1904. Each was billed at 88,000 pounds, and in each case the complainant paid freight at the rate of $2 per ton for that quantity. Midland Valley is located upon the Midland Valley Railroad, and the shipments originated with that company, being delivered by it to the Missouri, Kansas & Texas at Muskogee, Ind. T. So far as the record discloses, neither car was weighed by the Midland Valley, the billing weight given by the mine being accepted' in both cases by that company. Both cars were weighed by the Missouri, Kansas & Texas at Muskogee, the first shipment weighing 81,500 pounds and the second 77,000 pounds. These weights were stated upon the waybill of the Missouri; Kansas & Texas, which accompanied the shipment from Muskogee to Kansas City. The expense bill received by the complainant showed the weight of each shipment to be 88,000 pounds. There was also upon each expense bill a nota tion indicating the actual weight, but in such form as not to fairly advise the shipper that the track weights of the defendant were different from those stated in the expense bill. At the present tme the tariffs of the defendants state that mine weights will be accepted, but when these shipments moved no such provision was contained in the schedules, which named a rate of $2 per net ton, actual weights. The only question for our determination is, therefore, what was the actual weight of the contents of these cars. The defendants insist that the complainant paid the mine operator for 88,000 pounds of coal in each case, and that he ought therefore to pay the railroad for freighting the same quantity. The defendants stated that they would allow the overcharge if the complainant would testify that the cars in question only contained the quantity of coal shown by their track weights. This the complainant declined to do, upon the following statement of the method in which his business was conducted. He operates in Kansas City several coal yards. It occasionally happens that an entire carload of coal is delivered by him directly to a customer in the car in which it is received, but ordinarily his deliveries are in less than carload lots. Sometimes the coal is taken directly from the car to the customer, in which event each load is weighed and the weight of the entire carload thus determined. When not so delivered from the car, it is thrown into bins, and in this event there is no check upon the weight of the carload, since while the records of the complainant show the amount of coal put into a bin and the amount taken out, it is impossible to identify a particular car. The complainant testified after an examination of his records that both these cars were unloaded into his bins, so that he was unable to state what quantity of coal they actually contained. He testified that when a shortage of more than 1,000 or 2,000 pounds was developed, he made claim on the mine operator and obtained a deduction. In the present case he paid, in each instance, for the full 88,000 pounds. The Western Weighing Association is a branch of the inspection bureau, and its purpose is to check the weights upon carload shipments. Theoretically, all carloads which move at the carload rate should be weighed at some point during their transit; but arrangement is often made with the shipper by which the shipper becomes, as it was said, a member of the weighing bureau, in which event he is provided with a stamp which he can place upon the shipping ticket, and which entitles the traffic to go forward in the first instance at the shipper's weight. The shipper agrees, upon becoming a member of the association, that his books and papers shall be at all times open to the inspection of the agents of the weighing bureau, and the bureau relies upon its ability to detect fraud from such inspection. At the time of these shipments, if a mine belonged to the weighing bureau its cars were not supposed to be weighed en route, but mine weights were accepted. If, however, the mine was not a member of the weighing association, all cars were supposed to be weighed, and should have been weighed, at some point in transit. It was therefore the duty of these defendants, both upon their tariffs and upon the method of procedure then in vogue, to weigh these two cars at some point. The defendants claim that notwithstanding this it was their custom even then to accept, in actual practice, mine weights, and that they only weighed occasional cars for the purpose of ascertaining, in a general way, whether these mine weights were substantially correct; that in case of variance between the mine weight and the track weight the mine weight was accepted. Upon the other hand, complainant testified that mine weights were frequently raised so that he paid freight upon a greater quantity of coal than his bill from the mine called for. The defendants were asked to produce instances where the track weights were greater than mine weights, but where, nevertheless, mine weights had been accepted for the purpose of assessing their freight charges, but furnished no such cases. The complainant was also asked to produce instances in which mine weights had been increased by track weighing, and furnished, after some examination of his papers, three expense bills showing such increase. There is no testimony in the case to show how the mine weights were reached, but the testimony of the complainant did show that such weights were often wrong. We think that the track weights of the defendants should determine the actual weight of these shipments, and that complainant is entitled to a refund upon that basis. The difference between the actual weight of the two shipments and the weight upon which the complainant has paid is 17,500 pounds, amounting to an overcharge of $17.50, for the repayment of which an order will issue. 12 I. C. C. Rep. No. 1110. RAILROAD COMMISSION OF OREGON v. CHICAGO & ALTON RAILROAD COMPANY; CHICAGO & NORTHWESTERN RAILWAY COMPANY; CHICAGO GREAT WESTERN RAILWAY COMPANY; CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY; CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY; MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY; WABASH RAILROAD COMPANY; WISCONSIN CENTRAL RAILWAY COMPANY; CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY; DENVER & RIO GRANDE RAILROAD COMPANY; GREAT NORTHERN RAILWAY COMPANY; NORTHERN PACIFIC RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY; OREGON RAILROAD & NAVIGATION COMPANY; OREGON SHORT LINE RAILROAD COMPANY, AND ASTORIA & COLUMBIA RIVER RAILROAD COMPANY. Submitted November 5, 1907. Decided December 9, 1907. 1. Rates on alcohol, all kinds, from Chicago and from Missouri River common points to north Pacific coast terminals and to certain points in Oregon, are 85 cents per 100 pounds in carload lots and $1.25 per 100 pounds in less than carload lots. These rates are less than the rates from same points of origin on petroleum products, whisky, or paint. 2. Complainant asks for reduction in the rates on denatured alcohol. The record shows that denatured alcohol is manufactured in California and is sold in the north Pacific coast cities at a price which could be met by the eastern product only by reducing the transportation charges to nothing. An effort to place denatured alcohol upon a parity with proof spirits would lead either to a large increase in the charges on the proof spirits or a practical wiping out of the charges on the denatured article. Such increase in the charges on the proof spirits would probably render futile all effort to compete with the California product. 3. Rates complained of are not shown to be unreasonable per se, unduly discriminatory, or unjustly prejudicial. Complaint dismissed. Clyde B. Aitchison for complainant. W. W. Cotton for Chicago & Alton Railroad Company, Union Pacific Railroad Company, Oregon Railroad & Navigation Company, and Oregon Short Line Railroad Company. Carey & Kerr for Northern Pacific Railway Company, Great Northern Railway Company, and Astoria & Columbia River Railroad Company. REPORT OF THE COMMISSION. CLARK, Commissioner: This action is brought under section 13 of the Act to Regulate Commerce, in behalf of the dealers in and shippers of denatured alcohol, transported by defendants from Chicago, Illinois, and Missouri River common points to north Pacific coast terminals, including Portland, Astoria, Albina, and other points in the State of Oregon. Defendants are engaged in the transportation of property between the points named by continuous carriage as their various routes or lines may run. The complaint is that the rates on denatured alcohol from the points of origin to the destinations mentioned are generally and relatively unreasonable and unjust in consideration of the transportation services performed; are unduly prejudicial to said dealers and shippers of denatured alcohol, and that by maintenance of the same the defendants give to the traffic in proof alcohol, and to dealers and shippers thereof, undue and unreasonable preference and advantage. The Commission is asked to fix a reasonable maximum joint rate for the transportation of denatured alcohol from Chicago and Missouri River common points to said north Pacific coast terminals, including the Oregon cities mentioned. The joint commodity rate on alcohol of all kinds, including denatured and wood alcohol, in wooden barrels and iron drums, from Chicago and said Missouri River common points to said north Pacific coast terminals and to other points in the State of Oregon, is 85 cents per 100 pounds in carloads and $1.25 per 100 pounds in less than carloads. (Supp. 31, to Transcontinental Westbound Tariff 4C, I. C. C., 376, effective August 27, 1906.) The same rate applies from same - points of origin to San Francisco and other Pacific coast terminals. Supplement 3A to Western Classification No. 42, effective October 1, 1907, classifies denatured alcohol in iron drums or wooden barrels, car lots, as fifth class. If shipped under class rate the charge would be $1.65 per 100 pounds in carloads. The rate on benzine, gasoline, coal oil, and naphtha from said points of origin to said Pacific coast terminals is 90 cents per 100 pounds in carloads and $2.20 per 100 pounds in less than f |