
    ATLANTIC COAST LINE R. CO. et al. v. SMITH BROS., Inc.
    No. 6608.
    Cireuit Court of Appeals, Fifth Circuit.
    March 6, 1933.
    Rehearing Denied April 4, 1933.
    Robert B. Holland, of Dallas, Tex., for appellants.
    A. L. Reed, of Dallas, Tex., for appellee.
    Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.
   HUTCHESON, Circuit Judge.

ah . .t, u i,- , . , Appellee made through shipments into Florida over the lines of the carrier appellants. No joint through rate having been established, the shipments moved under a three-factor combination through rate, made up 0f the class A rates to New Orleans or Memphis, or fifth class to Evansville (2) and (3) the sixth class rate to and beyond Jaeksonville, Fla. Claiming that the through rate was excessive to the extent that the third factor, the sixth class rate beyond Jaeksonville, exceeded the contemporaneous class N ’ r mt(7 aPPfee filed reParatlon p/oe°?dmgS a^ail\st a11. °f oi“s’ and obtalned awds a^amst them alL

This appeal is from a judgment on an instrueted verdict for plaintiff in a suit brought f° compel the payment of those awards. All carriers assort error in the finding that ttei'e was w overcharge. The initial and connecting earners claim m addition that the overcharge was not their act, hut the act of ^le. terminal earner which collected^ the freight, and that since they neither published nor exacted the improper rate they cannot , n he held liable. They assert that the cause of action is. of statutory origin, and i that the effect of section 8, Comp. Stat. § 8572 [40 USCA § 8], for the violation of which this suit was brought, is not to make earners partners in responsibility, each for the acts of the others, hut to make each responsible for what it does.” They argue that just , , .. . . . ,. . . as only carriers who participate m discnmiJ . „ 1 , .... nations are liable for such discriminations even under a through contract of carriage, Central R. Co. v. United States, 257 U. S. 247, 42 S. Ct. 80, 66 L. Ed. 217, so carriers arc’ no£ res,p0,nsible for illegal rate exactions unjesg have j0ined in promulgating incorre0£ raj.eg; or jn exaeting them. Louisville & N. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217, 46 S. Ct. 73, 70 L. Ed. 242. That since in this case no joint rate was pro-i l j i. l .m nmlgated but the through rate was made up * , • , i • i i i n of a combination of locals, which had they v v , ^ . /* v been applied as the Commission now finds they ought to have been, would have resulted in no overcharge, the other carriers cannot be held liable for the act of the terminal carrier in collecting more than it should have done.

?he general assignment that there was er-ran" in the finding that an unlawful rate had been exacted is overruled on the authority of Atl. Coast Line R. Co. v. Atlantic Bridge Co. (C. C. A.) 57 F.(2d) 654. The other assignment that there was error in condemning the initial and the connecting, as well as the terminal carrier, to pay the award, must, we think, also be overruled, for the record is without any evidence that the terminal carriers, in collecting the through rate, acted on their own initiative, or collected more or other than the rate consented to by the initial .and intermediate carriers.

Tbe entire evidence consists of the findings of the Commission that the carriers exacted an unlawful through rate, the orders of reparation, the freight bills showing the collection of that rate, proof of the costs which plaintiff had been put to, and that a fee of $250 was reasonable for bringing and carrying tbe suit to conclusion. The connecting carriers, the Mobile & Ohio, and the Louisville & Nashville, though duly served, did not appear. The initial and the terminal carriers appeared, and stipulated that “the total freight charges for the entire transportation were collected at their destination by the delivering carrier.” One only of the carriers, the T. & P., offered to prove that it got only the rate which it would have been entitled to under the tariff. Neither the bills of lading, nor any of tbe documents under which the •shipments moved, nor any correspondence with the carriers relating to them> was offered, nor was there any evidence rebutting ■or tending to rebut the findings of the Commission that the collection of the freight by tbe terminal carrier was tbe joint act of them all.

On the part of appellee it is claimed that the findings and orders of the Commission establish that each shipment had been undertaken as a through shipment, and for a through rate, a combination of the locals, that the carriers jointly exacted an improper and illegal rate, and that the prima facie case thus made was met by no countervailing proof.

Appellants insist that the stipulation that the charges for the entire transportation were ■collected at destination' by tbe- delivering carrier rebuts this ease as to all the carriers, and that, if it does not, the offered proof on the part of the T, & P. that it received only its legal part of the rate rebuts it as to the T. & P.

We think appellee is right, that the findings and orders of the Commission made an nnrebutted ease for it. The prima facie effect which the statute accords to the findings and orders of the Commission (Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 35 S. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691; Pennsylvania R. Co. v. Weber, 257 U. S. 85, 42 S. Ct. 18, 66 L. Ed. 141; Blair v. Cleveland, C., C. & St. L. R. Co. (D. C.) 45 F.(2d) 792; Florida v. U. S., 282 U. S. 194, 51 S. Ct. 119, 75 L. Ed. 291) is of course rebuttable [So. R. Co. v. Eichler (C. C. A.) 56 F.(2d) 1010, 1018; Kanawha Black Band Coal Co. v. Chesapeake, O. R. Co., 107 W. Va. 469, 148 S. E. 855], but until rebutted it does make out a cáse. Tbe findings and order in this case did not, as they did in Midwest Ref. Co. v. Gt. Northern R. Co., 122 I. C. C. 205; Burns & Knapp v. Big Sandy & K. R. R. Co., 126 I. C. C. 410; Gulf Coal Co. v. Virginian R. Co., 1401. C. C. 657, condemn only the part of the rate for the short haul and not the through rate from origin to destination. In those cases the Commission expressly found that the fault was entirely with the terminal carrier in making an unjust exaction as to the rate on its line, and that the other carriers did not contribute to tbe injury. Here, on tbe contrary, tbe effect of the finding is as it was in the Kanawha Black Band Coal Co. Case supra, Nelson Fuel Co. v. Chesapeake & Ohio R. Co., 120 I. C. C. 726, Mason City Brick & Tile Co. v. A., T. & S. F. R. Co., 148 I. C. C. 266, to condemn the through rate made up of the combination as unjust, and to find that all the carriers had participated in that injustice.

It is the settled rule of the Commission that, “if a through rate, joint or combination, is found unreasonable and reparation is awarded the order entered runs against the carriers, collectively, that participated in the transportation.” Pinson Brokerage Co. v. C. & G. R. R. Co., 89 I. C. C. 126; Hansen-Peterson Co. v. A., T. & S. F. R. Co., 113 I. C. C. 575; Illinois Powder Co. v. Chicago, P. & St. L. R. Co., 165 I. C. C. 127. This rule has the approval of the courts. Louisville & N. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217, 46 S. Ct. 73, 70 L. Ed. 242; News Syndicate Co. v. N. Y. Central R. Co., 275 U. S. 187, 48 S. Ct. 39, 72 L. Ed. 225; Lewis-Simas-Jones Co. v. So. Pac. Co., 283 U. S. 654, 51 S. Ct. 592, 75 L. Ed. 1333; Kanawha Black Band Coal Co. v. Chesapeake & O. R. Co., 107 W. Va. 469; 148 S. E. 855.

Appellants also contest the allowance against them in solido of attorney’s fees-, in view of the fact that the suit and the orders involved different shipments, and different carriers.

We think this objection well taken. The judgment should have fixed the attorney’s fees separately as to the carriers involved in each of the reparation awards, and iio doubt it would have done so if the request .had been made in the lower court. Since, however, the awards as to the separate carriers involve the same questions and differ only in amounts, and no objection was made in the court below to their taxing in solido, the judgment will be here reformed without costs to appellee, awarding one-half of the -attorney’s fees against tho C. & A., M. & C., and tho Seaboard Air Line, and the other one-half JA against the T. & P., L. & N., and Atlantic Coast Line, and tho other % against the T. & P., L. & N., and Seaboard Air Line.

As reformed, the judgment is affirmed.  