
    ATCHISON, T. & S. F. RY. CO. et al. v. SPILLER.
    (Circuit Court of Appeals, Eighth Circuit.
    March 11, 1918.)
    No. 4819, with Nos. 4820-4827.
    Carriers <5=3202 — Unreasonable Rates — Damages.
    Where a shipper has paid a rate afterwards declared by the Interstate Commerce Commission to be excessive, he may recover as damages the difference between the excessive rate and the rate declared to be just and reasonable by the Commission, without proof of actual injury.
    ®=»Fot other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes
    On motion for rehearing. Dormer opinion modified, but motion for rehearing denied.
    P'or former opinion, see 246 Ded. 1, 158 C. C. A. 227.
    Before SANBORN and GARLAND, Circuit Judges, and BOOTH, District Judge.
   CARLAND, Circuit Judge.

Since the opinion of this court in the above case was filed, the Supreme Court has decided in Southern Pacific Company et al. v. Darnell-Taenzer Lumber Company et al., 245 U. S. 531, 38 Sup. Ct. 186, 62 L. Ed.-(January 21, 1918), that, where a shipper has paid a rate afterwards declared to he excessive by the Interstate Commerce Commission, he may recover as damages the difference between the excessive rate and the rate declared to be just and reasonable by the Commission, without proof of actual injury. It results that anything said in the opinion of this court contrary to the above decision is overruled. Our judgment, however, was not based alone upon our opinion as to what was the lawful measure of damages, but on other grounds mentioned in the opinion to which we still adhere.

The motion for a rehearing is therefore denied.  