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

219 F.2d 811 INTERSTATE COMMERCE COMMISSION and Southern Pacific Company, a Corporation, Appellants, v. The MARTIN BROTHERS BOX COMPANY, a Corporation, Appellee. No. 14077. United States Court of Appeals, Ninth Circuit. January 10, 1955. Rehearing Denied March 1, 1955. Edward M. Reidy, Chief Counsel, Samuel R. Howell, Asst. Chief Counsel, I.C.C., Washington, D. C., William L. Harrison, Atty., I.C.C., San Francisco, Cal., for appellant Interstate Commerce Commission. James C. Dezendorf, George B. Campbell, Portland, Or., James E. Lyons, Charles W. Burkett, Jr., San Francisco, Cal., Stanfield Johnson, Washington, D. C., for appellant Southern Pac. Co. George L. Quinn, Jr., Washington, D. C., Irving Rand, Donald A. Schafer, Portland, Or., for appellee. Before HEALY, POPE and CHAMBERS, Circuit Judges. HEALY, Circuit Judge. 1 In October of 1947 appellee, hereafter generally called Martin, filed a complaint with the Interstate Commerce Commission alleging that during the period January 1 to September 30, 1947, the Southern Pacific Company failed in its duty to provide and furnish complainant with an adequate supply of box cars for the transportation of its manufactured products from its…

In October of 1947 appellee, hereafter generally called Martin, filed a complaint with the Interstate Commerce Commission alleging that during the period January 1 to September 30, 1947, the Southern Pacific Company failed in its duty to provide and furnish complainant with an adequate supply of box cars for the transportation of its manufactured products from its Oakland, Oregon plant to interstate destinations, in violation of § 1(4) and (11) and § 3(1) of the Interstate Commerce Act, 49 U.S.C.A. § 1 (4) and *812 (11) and § S(l). 1 The relief asked was that the Commission enter an order commanding Southern Pacific to provide Martin with adequate and equal car service from Oakland, Oregon, to various 1 destinations, and to pay Martin a sum in excess of two million dollars by way of damages. Southern Pacific intervened and in its answer denied the material allegations of the complaint.

The matter was assigned for formal hearings before an examiner for the Commission. Following such hearings the examiner made a proposed report recommending that the Commission find that Southern Pacific failed in its duty to furnish adequate car service to Martin and that damages be awarded the…

(concurring).

The examiner of the Interstate Commerce Commission who held hearings on the complaint of Martin Brothers Box Company found an unfair discrimination by Southern Pacific Company. He recommended substantial damages or reparation. If I thought the district court and this court had the same latitude with respect to reviewing an order of the Interstate Commerce Commission that the Commission has in following or rejecting a recommendation of the examiner, I would vote to uphold the examiner.

But on the ground that under the record the Commission was not clearly wrong in finding there was no undue discrimination under the circumstances of the case, I concur in the result reached by Judge Healy. If the Commission had found there was undue discrimination but that under the evidence it could not fix damages, then I would join Judge Pope.

There is evidence here of substantial damage caused by the car shortage. If Southern Pacific is legally responsible, then the Commission should come up with a reasonable figure for this damage, and an intelligent estimate would be satisfactory.

(dissenting).

Judge Healy’s opinion cites many of the leading decisions of the Supreme Court noting the narrow scope of judicial review of the Commission’s orders. It quotes at considerable length the authorities referring to the deference due the findings of a tribunal “informed by experience”. But unfortunately for the *817 right of the matter here, those impeccable authorities have no application to the facts of this case. This is not the kind of case to which the language quoted from the Supreme Court is addressed. On the contrary, this is a case in which all of the evidence, both that of the complainant and that of the carrier, shows with certainty that there was an unlawful preference and unreasonable prejudice and disadvantage to the complainant within the meaning of the Act. There was no evidence whatever to the contrary. Furthermore, the Commission’s failure to take account of this, the fact that it ignored it, is explained by the Commission’s demonstrable mistake of law in wholly disregarding statutory standards. But above and beyond the fact that the decision here disregards the rights of the shipper involved, I think it can be demonstrated, as I propose to do, that if…