SOUTHERN RY. CO. v. ST. LOUIS HAY & GRAIN CO., 153 F. 728

BAKER, Circuit Judge, after stating the facts, delivered the opinion of the court. Of the 10 assignments of error the majority present nothing for our consideration. Many of them are addressed to the refusal of the court to “hold” certain “propositions of law” which were submitted to the court in writing by plaintiff in error, as though the court as judge were required to give instructions to the court as jury. Streeter v. Sanitary District, 133 Fed. 124, 66 C. C. A. 190. Other assignments are based on the court’s declining to entertain certain proposed findings of fact submitted in writing.

Parties have no right to require a federal court, in hearing a law case without a jury, to make a special finding. If the-finding is general, a writ of error reaches only “the rulings of the court in the progress of the trial”; “and when the finding is special, the review may extend to> the determination of the sufficiency of the facts found to support the judgment.”

Section 700, Rev. St. U. S. [U. S. Comp. St. 1901, p. 570]. Exception was taken to receiving the Commission’s report in evidence.

Section 14 provides: “That whenever an investigation shall be made by said Commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the Commission are based, together with its representation as to what reparation, if any, should be made by the common carrier to any party or parties who may be found to have been injured, and such findings so made shall thereafter in all judicial proceedings bo deemed prima facie evidence as to each and every fact found.” The findings and the conclusions of the Commission were embraced in an opinion prepared by one of the members.

If this case had been tried before a jury, it might have been the court’s duty to separate the findings of fact from matters of opinion and to instruct the jury to disregard the latter (Western N. Y. & P. Rld. Co. v. Penn. Refining Co., 137 Fed. 343, 70 C. C. A. 23), but such a rule is inapplicable to a trial before the court alone. Over plaintiff in error’s objection, evidence was received that at markets other than East St. Louis the “reconsigning” privilege was granted without charge. If it be conceded that this evidence was not within the issues, the ruling would not necessarily afford a ground for reversal.

To constitute prejudicial error when an action at law is tried by the court without a jury, the evidence improperly admitted must have entered into the result at which the trial court arrived. Streeter v. Sanitary District, 133 Fed. 124, 66 C. C. A. 190. Here the record affirmatively shows that neither the Commission nor the Circuit Court based any part of the judgment on the objectionable evidence. The finding that the just and reasonable charge for the reconsigning privilege at East St.

Eouis was one cent a hundredweight is challenged as being unsupported by evidence on the part of defendant in error and contrary to uncontradicted evidence on the part of plaintiff in error. Plaintiff in error’s evidence was not uncontradicted, for in the Circuit Court the finding of the Commission was prima facie evidence of its own truth. But, going beyond that, the shipper had evidence in the way of car rentals and switching charges made by railroads against each other at East St. Eouis, which supported the finding that anything in excess of one cent a hundredweight was unjust and unreasonable.

It is not our function to balance this against the carrier’s method of figuring that two cents a hundredweight was a just and reasonable charge. The remaining question presented by any proper assignment of error is whether the finding supports the judgment. Play that comes into East St. Louis by boat or by wagon has to pay plaintiff in error, whose northwestern terminus is East St.

Louis, a local rate of five cents a hundredweight to the' Ohio river. ' Plaintiff in error is not obliged to do business beyond its own tracks; but if it does it cannot make its voluntary undertakings the ground for unreasonable rates and unjust discriminations and undue disadvantages. Shipments that originate at East St. Louis cannot avoid the southeastern railroads that begin there; but shipments that originate in northwestern territory may go by other' routes.

To increase its traffic plaintiff in error offers to take hay of northwestern origin from connecting roads and carry it at cheaper rates, with or without the reconsigning privilege, than it carries hay of East St. Louis origin. The rates on through business do not prove that the local rate is unreasonable; and, on the other hand, the local rate can throw no light on the justice or injustice of discriminations between shipments of northwestern hay of the same origin and destination. The local rate has nothing to do with the case as we view it.

The comparison is between the through rate without the reconsigning privilege and the through rate with the reconsigning privilege. The complaint concedes, by not denying, that the through rate, aside from the reconsigning privilege, is just and reasonable. The attack is upon the charge exacted for the reconsigning privilege and upon that alone. As we have already indicated, plaintiff in error is engaging in a business which it could not have been compelled to undertake; but, undertaking it, it brings itself within the requirements of the act to regulate commerce.

The finding, in our opinion, supports the conclusion that the exaction is in violation of

section 1 as being excessive, and thereby produces unjust discriminations and undue disadvantages, in violation of sections 2 and 3. The judgment is affirmed.