FITZHENRY, District Judge
(after stating the facts as above). Plaintiff in error seeks to set aside the judgment of the District Court against him in his action for damages against the defendants under section 7 of the Sherman Anti-Trust Act (Comp. St. § 8829), upon the ground that the trial court erred in holding the fact that the freight rates charged and collected by the defendants had been found to be reasonable by the Interstate Commerce Commission was a defense to the action, and overruled plaintiff’s demurrers to the defendants’ pleas setting out the proceedings had before the Commission.
j 1 ] If the plaintiff had a remedy in the premises it was by virtue of section 7, supra, which provides:
“Any person who shall he injured in his business or property by any other person or corporation by reason of anything forbidden or declared by this act, may sue therefor * * * and shall recover threefold the damages by Mm sustained. * * * ” (Italics ours.)
Under this statute those who may sue for threefold damages by virtue of its terms are limited to those “who shall be injured in his business or property,” and if a recovery is permitted it must be limited to the damages “by him sustained.” Pennsylvania Ry. Co. v. International Coal Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315. The mere fact that the defendants might have been subject to a criminal prosecution by the government, or io corrective or coercive proceedings at the instance of the Interstate Commerce Commission is of no avail to a litigant unless it is established that he sustained pecuniary damage. Pennsylvania Ry. Co. v. International Coal Co., supra; Knudsen v. Michigan Central R. R. Co., 148 Fed. 968, 79 C. C. A. 46; Meeker v. Lehigh Valley R. R., 183 Fed. 548, 106 C. C. A. 94; Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244; Motion Picture Patents Co. v. F. Clair Film Co. (D. C.) 208 Fed. 426; Imperial Film Co. v. General Film Co. (D. C.) 244 Fed. 985.
[2] To recover under this statute plaintiff must show, as a result of the defendants’ acts, actual damages were sustained. These damages must be proved by facts from which their existence is logically and legally inferable, not by conjecture nor estimates. American Sea-green Slate Co. v. O’Halloran, 229 Fed. 77, 143 C. C. A. 353; Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244.
[448]*448[3] Plaintiff in the first count of his declaration very clearly limits his damages due to the alleged conspiracy or combination in restraint of trade to the difference between the rates that were charged by reason thereof and what the rates might have been had the alleged^ conspiracy not intervened, but described in the second count as having had the effect of reducing plaintiff’s profits on his products from $1 to 30 cents per ton. No other element of damage is suggested by the pleadings. The question is squarely presented as to whether or not railroads are culpable in damages for charging and collecting rates which have been found to be reasonable by th'e Interstate Commerce Commission.
A similar question was before this court in National Pole Co. v. Chicago & North Western Ry. Co., 211 Fed. 65, 127 C. C. A. 561._ In that case, upon the authority of Texas & Pacific Ry. Co. v. Abilene Cotton Oil.Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, we held that the question of the reasonableness of a freight tariff was one which was addressed originally and exclusively under the Act to regulate commerce to the Interstate Commerce Commission; that this must necessarily be true from the nature of the enterprise involved. The fixing of a just rate for a common carrier for the transportation of persons and property in interstate commerce involves the exercise of a legislative discretion. In the National Pole Co. Case, supra, this court said:
“Congress directly and in the first instance might have inquired into the character and value of the particular transportation service now under investigation by the Commission and have named the rate therefor in a statute. But, with the increasing complexities of human activities, it was impossible ’ to cover the details of rate-making (and the same is true of many other subjects) by specific statutes, and so the board or commission form of legislation was used; that is, Congress declared the public policy and-fixed the legal principles that were to control, and charged an administrative body with the duty of ascertaining within particular fields from time to time the facts on which the legal principles established by Congress would be brought into play. * * * But since the congressional prohibition of unjust rates cannot, by the terms of the act, be effective against a particular published rate, although unjust, until the Commission has investigated the service in question and has established the standard of justness for all shippers who use that service, the action of the Commission in the regulation of rates is quasi legislative—it converts the actual legislation from a static into a dynamic condition.”
And this view has found lodgment in numerous expressions of the Supreme Court upon this same proposition many times since. When plaintiff first felt aggrieved he sought his relief by the proper procedure—by filing his complaint with the Interstate Commerce Commission. Skinner & Eddy Corporation v. United States, 249 U. S. 557, 39 Sup. Ct. 375, 63 L. Ed. 772, and cases cited. And the finding of the Commission upon this subject was conclusive. Skinner & Eddy Corporation v. United States, supra.
Had the schedules filed in 1912 been found by the Commission to carry unreasonable and oppressive rates in violation of law, and the amount of damages sustained by reason of defendants charging and collecting the rates provided in the schedules, a different case would [449]*449be presented. In such case a judicial question would be involved which might be adjudicated in a court as well as before the Commission ; but inasmuch as the Commission took the contrary view, holding that the rates provided in the schedules and charged by the defendants and collected from the plaintiff for the shipments complained of were reasonable, a different situation arises.
' Congress in the passage of the Act to regulate commerce (Comp. St. § 8563 et seq.) having provided the rules of law applicable to freight charges and the administrative board—Interstate Commerce Commission—having determined the rates fixed by the schedules complained of were within the statute, the plaintiff has no other alternative than to regard the rates as reasonable and as having been well established. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280; Proctor & Gamble v. United States, 225 U. S. 282, 36 Sup. Ct. 761, 56 L. Ed. 1091; Kansas City Southern Ry. Co. v. United States,
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FITZHENRY, District Judge
(after stating the facts as above). Plaintiff in error seeks to set aside the judgment of the District Court against him in his action for damages against the defendants under section 7 of the Sherman Anti-Trust Act (Comp. St. § 8829), upon the ground that the trial court erred in holding the fact that the freight rates charged and collected by the defendants had been found to be reasonable by the Interstate Commerce Commission was a defense to the action, and overruled plaintiff’s demurrers to the defendants’ pleas setting out the proceedings had before the Commission.
j 1 ] If the plaintiff had a remedy in the premises it was by virtue of section 7, supra, which provides:
“Any person who shall he injured in his business or property by any other person or corporation by reason of anything forbidden or declared by this act, may sue therefor * * * and shall recover threefold the damages by Mm sustained. * * * ” (Italics ours.)
Under this statute those who may sue for threefold damages by virtue of its terms are limited to those “who shall be injured in his business or property,” and if a recovery is permitted it must be limited to the damages “by him sustained.” Pennsylvania Ry. Co. v. International Coal Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315. The mere fact that the defendants might have been subject to a criminal prosecution by the government, or io corrective or coercive proceedings at the instance of the Interstate Commerce Commission is of no avail to a litigant unless it is established that he sustained pecuniary damage. Pennsylvania Ry. Co. v. International Coal Co., supra; Knudsen v. Michigan Central R. R. Co., 148 Fed. 968, 79 C. C. A. 46; Meeker v. Lehigh Valley R. R., 183 Fed. 548, 106 C. C. A. 94; Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244; Motion Picture Patents Co. v. F. Clair Film Co. (D. C.) 208 Fed. 426; Imperial Film Co. v. General Film Co. (D. C.) 244 Fed. 985.
[2] To recover under this statute plaintiff must show, as a result of the defendants’ acts, actual damages were sustained. These damages must be proved by facts from which their existence is logically and legally inferable, not by conjecture nor estimates. American Sea-green Slate Co. v. O’Halloran, 229 Fed. 77, 143 C. C. A. 353; Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244.
[448]*448[3] Plaintiff in the first count of his declaration very clearly limits his damages due to the alleged conspiracy or combination in restraint of trade to the difference between the rates that were charged by reason thereof and what the rates might have been had the alleged^ conspiracy not intervened, but described in the second count as having had the effect of reducing plaintiff’s profits on his products from $1 to 30 cents per ton. No other element of damage is suggested by the pleadings. The question is squarely presented as to whether or not railroads are culpable in damages for charging and collecting rates which have been found to be reasonable by th'e Interstate Commerce Commission.
A similar question was before this court in National Pole Co. v. Chicago & North Western Ry. Co., 211 Fed. 65, 127 C. C. A. 561._ In that case, upon the authority of Texas & Pacific Ry. Co. v. Abilene Cotton Oil.Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, we held that the question of the reasonableness of a freight tariff was one which was addressed originally and exclusively under the Act to regulate commerce to the Interstate Commerce Commission; that this must necessarily be true from the nature of the enterprise involved. The fixing of a just rate for a common carrier for the transportation of persons and property in interstate commerce involves the exercise of a legislative discretion. In the National Pole Co. Case, supra, this court said:
“Congress directly and in the first instance might have inquired into the character and value of the particular transportation service now under investigation by the Commission and have named the rate therefor in a statute. But, with the increasing complexities of human activities, it was impossible ’ to cover the details of rate-making (and the same is true of many other subjects) by specific statutes, and so the board or commission form of legislation was used; that is, Congress declared the public policy and-fixed the legal principles that were to control, and charged an administrative body with the duty of ascertaining within particular fields from time to time the facts on which the legal principles established by Congress would be brought into play. * * * But since the congressional prohibition of unjust rates cannot, by the terms of the act, be effective against a particular published rate, although unjust, until the Commission has investigated the service in question and has established the standard of justness for all shippers who use that service, the action of the Commission in the regulation of rates is quasi legislative—it converts the actual legislation from a static into a dynamic condition.”
And this view has found lodgment in numerous expressions of the Supreme Court upon this same proposition many times since. When plaintiff first felt aggrieved he sought his relief by the proper procedure—by filing his complaint with the Interstate Commerce Commission. Skinner & Eddy Corporation v. United States, 249 U. S. 557, 39 Sup. Ct. 375, 63 L. Ed. 772, and cases cited. And the finding of the Commission upon this subject was conclusive. Skinner & Eddy Corporation v. United States, supra.
Had the schedules filed in 1912 been found by the Commission to carry unreasonable and oppressive rates in violation of law, and the amount of damages sustained by reason of defendants charging and collecting the rates provided in the schedules, a different case would [449]*449be presented. In such case a judicial question would be involved which might be adjudicated in a court as well as before the Commission ; but inasmuch as the Commission took the contrary view, holding that the rates provided in the schedules and charged by the defendants and collected from the plaintiff for the shipments complained of were reasonable, a different situation arises.
' Congress in the passage of the Act to regulate commerce (Comp. St. § 8563 et seq.) having provided the rules of law applicable to freight charges and the administrative board—Interstate Commerce Commission—having determined the rates fixed by the schedules complained of were within the statute, the plaintiff has no other alternative than to regard the rates as reasonable and as having been well established. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280; Proctor & Gamble v. United States, 225 U. S. 282, 36 Sup. Ct. 761, 56 L. Ed. 1091; Kansas City Southern Ry. Co. v. United States, 231 U. S. 423, 34 Sup. Ct. 125, 58 L. Ed. 296, 52 L. R. A. (N. S.) 1; Interstate Commerce Commission v. Atchison, Topeka & Santa Fé R. R. Co., 234 U. S. 294, 34 Sup. Ct. 814, 58 L. Ed. 1319.
[4] The rates in defendants’ tariff schedules complained of in plaintiff’s declaration having been found, by the Interstate Commerce Commission, to be reasonable, are to be treated as though they were embodied in a statute, binding as such upon both defendants and plaintiff alike. Pennsylvania Ry. Co. v. International Coal Co., 230 U. S. 184-196, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315.
The only element of damage alleged in plaintiff’s declaration being predicated upon the payment of freight rates which the plaintiff was required by law to pay and the defendants were required by law to collect, it is apparent that the special matter set out in the several pleas did present a complete defense to the action. It was therefore unnecessary to adjudicate the question as to whether or not the defendants were guilty of the crime of conspiracy under the Anti-Trust Law. If no provable damages were sustained by the plaintiff, there can be no recovery.
The demurrers were properly overruled, and the judgment of the District Court will accordingly be affirmed.