correct rate even though he suffer severe loss thereby.136 Nor does the fact that there was no rate on file change the rule.137 Discussing this subject, the Commission, in its twentysecond Annual Report, pp. 16, 17, showed the hardship of the rule and said: "The Commission feels that to require the shipper to ascertain for himself at his peril the rate imposes upon him an undue burden. The railway should know what its established charges are, and may be fairly required to state in writing, when a written request is made by the shipper, the rate which it has published and maintains in force. We call special attention to this matter as one of immediate and general concern, which discloses the need of an appropriate remedy, and urgently request that a suitable measure be promptly enacted." In the first edition hereof, referring to the quotation above, it was said: "It is undoubtedly true that shippers ordinarily do not know, and it would sometimes take an expert to find out, what a particular rate is, and, therefore, reliance must be had on the information furnished by the agents of the carriers. The Commission points out the evil, but suggests no remedy. It would probably be an effective remedy to allow the Commission to award reparation in such cases as it might find were based upon an honest mistake of the carrier. The Commission would be able to prevent the evils which Mr. Commis 136 Poor v. Chicago, B. & Q. R. Co., 12 I. C. C. 418, 421, 422; Tex. & Pac. Ry. Co. v. Mugg, 202 U. S. 242, 50 L. Ed. 1011, 26 Sup. Ct. 628; Gulf C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. 802; Suffern Hunt & Co. v. Indiana, D. & W. Ry. Co., 7 I. C. C. 255, 278; Houston & T. C. R. Co. v. Dumas, 43 S. W. 609; Chicago, R. I. & P. Ry. Co. v. Hubbell, 54 Kans. 232, 38 Pac. 266, 5 I. C. R. 241; Pond-Decker Lumber Co. Spencer, 86 Fed. 846, 30 C. C. A. 430; Mobile & O. R. Co. v. Dismukes, 94 Ala. 131, 10 So. 289, 4 I. C. R. 200; V. Atchison, T. & S. F. Ry, Co. V. Holmes, 18 Okla. 92, 90 Pac. 22, New York C. & H. R. R. Co. v. United States, 212 U. S. 500, 53 L. Ed. 624, 29 Sup. Ct. 309; Illinois Cent. R. Co. v. Henderson Elevator Co., 226 U. S. 441, 57 L. Ed. 290, 33 Sup. Ct. 176, reversing same-styled case, 138 Ky. 220, 127 S. W. 779. 137 Kansas City S. R. Co. v. Albers Com. Co., 223 U. S. 573, 56 L. Ed. 556, 32 Sup. Ct. 316, reversing same-styled case, 79 Kan. 59, 99 Pac. 819. sioner Harlan points out in the Poor case, supra, and, if necessary to prevent discrimination, the rate mistakenly given might be open to all who ship contemporaneously with the shipper who relied on the misquoted rate. By the Amendment of 1910,138 it was made the duty of the carrier, "after written request," to give a statement of "to the correct rate, and should there be a refusal to comply with a request properly made, or should there be given a wrong rate, and "if the person or company making such request suffer damage in consequence of such refusal or omission, or in consequence of the misstatement of the rate," the carrier is made liable by the statute to pay a penalty of two hundred and fifty dollars, which penalty shall accrue to the United States. As such refusal, omission or misstatement would come within the provisions of Section 8 of the Act, the shipper could recover and the Commission or a court could award "the full amount of damages sustained in consequence of any such violations." This statement is not in conflict with the decisions of the Supreme Court in the Albers Commission case and the Henderson Elevator case, cited note, supra. In the Albers Commission Co. case, the court was careful to limit its opinion to the law in effect prior to 1910, and at page 598 of the opinion it was said: "To avoid any misapprehension in respect to the character of the liability sought to be enforced in this case, we deem it well to repeat that there was no claim of any right to reparation or damages under the Interstate Commerce Act, but only an attempt to enforce a supposed liability for a breach of the special agreement." A like limitation could be stated as to the Henderson Elevator case. The Commission, in a case decided in 1913, refused reparation, but in that case there was no application made and refused, and no misstatement under the amended law 139 * * § 261. Damages, to Whom Paid. Reparation is paid to 138 Act. June 8, 1910; Sec. 459, porting the principle announced in post. the text, see St. Louis S. W. Ry. Co. v. Lewellen, 192 Fed. 540. 139 Franke Grain Co. v. Illinois Cent. R. Co., 27 I. C. C. 625. As sup him who pays the unlawful advance or exaction. For the wrong of being required to pay that which is unlawful under the Act, he who makes such payment has suffered legal damage to the extent of the amount paid in excess of the lawful rate or to the extent that he is damaged by an unlawful preference to another. It is the person who sustains damages who is given the right to an award by way of reparation, and the fact that the injured owner may add to the price of his commodity the amount of his damages does not relieve the carrier causing the damage or justify its keeping the unlawful exaction of an excessive rate. For, as said by Mr. Commissioner Prouty:140 "If complainants were obliged to follow every transaction to its ultimate result and to trace out the exact commercial effect of the freight rate paid, it would never be possible to show damages with sufficient accuracy to justify giving them. Certainly these defendants are not entitled to this money which they have taken from the complainants, and they ought not to be heard to say that they should not be required to refund this amount because the complainants themselves may have obtained some portion of this sum from the consumer of the commodity transported." This statement of the Commission applies with more force to cases where the rate is unreasonable than to discrimination cases where there must be proof of damages by the shipper who suffers the loss.141 The manufacturer who sells his product f. o. b. his plant pays no freight thereon, although the value of his product may be affected by the rate of carriage from his plant to the market. His damage, if any, however, is not subject to ascertainment. When he sells free on board cars at his place of business, the title passes from him upon delivery of the commodity to the carrier. The purchaser then owns the commodity and must pay the transportation charges thereon to whatever place he may direct shipment. Should there be loss or injury, 140 Burgess V. Transcontinental Freight Bureau, 13 I. C. C. 668, 679, 141 Sec. 256, ante. the manufacturer would not suffer, but such loss or injury must be adjusted between the owner and the carrier. It may be that the higher rate affects the selling price at the point of manufacture, but to what extent cannot be definitely ascertained. Besides, the manufacturer does not fix his selling price according to the final destination of the commodity. He frequently does not know where the purchaser will send the goods when the purchase is made. The purchaser may decide to use the commodity at the point of manufacture, or ship to some place where the illegal rate does not apply. These and other considerations make it manifest that the legal injury is suffered by the person who pays for the carriage. This does not mean the man who actually hands the money or check to the carrier. It means the one who owns the commodity while in transit and who has undertaken to deliver it at a point requiring its shipment over the lines of the carrier who collects the unlawful charge. Frequently, a manufacturer will sell his goods delivered at a particular point, but allow the consignee to advance the freight thereto, deducting the amount advanced from the purchase price of the goods. In such a case, the manufacturer has paid the freight and is entitled to recover the overcharge. The manufacturer may add the freight charges to the manufacturing cost, the jobber and the retailer may add not only such charges but a profit thereon when they sell, and in the end the consumer "pays the freight," but it would be impracticable to trace an overcharge to the consumer who never could make proof entitling him to a recovery. The law will not attempt to follow these speculations, but will let the carrier repay to the man who pays for the transportation of his property all charges above what such shipper is legally bound to pay.142 Cases of un 142 Commercial Club of Omaha v. Anderson & S. R. R. Co., 27 I. C. C. 302, 323; Nicola, Stone & Meyers Co. v. Louisville & N. R. Co., 14 I. C. C. 199, 208; Sunnyside Coal Mining Co. v. Denver & R. G. R. Co., 19 I. C. C. 20; Mountain Ice Co. v. Delaware, L. & W. R. Co., 21 I. C. C. 596; Baker Mufg. Co. v. Chicago & N. W. R. Co., 21 I. C. C. 605; Carolina Portland Ce ment Co. v. Chesapeake & O. Ry. Co., lawful discrimination may present a different issue and one where a manufacturer could show loss of business because a competitor had a less rate. The Commission declined to award reparation before a complainant had paid the lawful rate.143 The right to recover damages under the Act may be assigned,144 but by conference ruling 362 the Commission said: "In awarding reparation the Commission will recognize an assignment by a consignor to a consignee or by a consignee to a consignor, but will not recognize an assignment to a stranger to the transportation records." In a case where a complainant paid the freight charges and deducted them from the invoices and then sought reparation for unreasonable rates,145 the Commission said: "In the absence of objection by the party bearing the freight charges or the beginning of action by such party, complainant is entitled to bring the action and to any award of reparation that may be found warranted.-Missouri Portland Cement Co. v. Director General, 88 I. C. C. 492." § 262. Damages, by Whom Paid.-Where the illegal rate is a joint rate over a through route consisting of several carriers, the question arises as to what carrier or carriers must pay the reparation, and as to whether the liability is joint or several; that is, is each carrier jointly and severally liable for all the illegal rate, or is each carrier liable for only the proportion of the illegal charge received by it? The charging 143 Rosenblatt v. Chicago & N. W. Ry. Co., 18 I. C. C. 261. an 144 Edmunds v. Illinois Cent. R. Co., 80 Fed. 78; Jubitz, Assignee, v. Southern Pac. Co., 27 I. C. C. 44. The Commission declined to express opinion on this point, O'Brien Com. Co. v. Chicago & N. W. Ry. Co., 20 I. C. C. 68. The Commission has adhered to its conference ruling but the assignability of the right to recover has been recognized by the courts, A. T. & S. F. Ry. Co. v. Spiller, 246 Fed. 1, 19, 158 C. C. A. 227; St. L. & S. F. R. R. Co. v. Spiller, 274 U. S. 304, 71 145 Creomulsion Co. v. So. Ry. Co., 157 I. C. C. 95. See also, as to the doctrine of assignment of claims, Mississippi Railroad Commission v. A. & V. Ry. Co., 120 I. C. C. 569; Hudson & Thompson v. New Iberia & Northern R. Co., 136 I. C. C. 435; Spiller v. A. T. & S. F. R. R. Co., 253 U. S. 117, 64 L. Ed. 810, 40 Sup. Ct. 466; Sinclair Oil & Gas Co. v. C., R. I. & P. R. Co., 147 I. C. C. 561. |