Kinsley v. Buffalo, N. Y. & P. R.

37 F. 181, 1888 U.S. App. LEXIS 2735

• Court: U.S. Circuit Court for the District of Western Pennsylvania
• Decided: November 20, 1888
• Status: Published

Opinion

Per Curiam.

The petitioner seeks to obtain reimbursement from the receiver of the sum of $478.44, with interest from April 3, 1887, which he alleges was unlawfully exacted from him as and for freights for the transportation of oil upon the railroad in the custody of the receiver. The exaction of this sum is admitted, as is also the tact that a less rate was charged to another shipper of oil upon the railroad. This charge is justified by the master upon the ground that the quantity of oil shipped by another shipper was much larger than that shipped by the petitioner, and hence that the larger proportionate expense attending the handling and transportation of the smaller shipment warranted a higher rate than was charged for the larger shipment. In this conclusion we do not agree with the learned master. It does not differentiate the service performed for the several shippers, nor the conditions or circumstances under which it was performed. The only difference is that in one case the quantity shipped was larger,.and in the other case it was smaller. This has been repeatedly held to be an insufficient and unwarrantable reason for discriminating rates of charge. See Hays v. Pennsylvania Co., 12 Fed. Rep. 309. In the statement of the law by Judge Baxter Ave concur, and for this reason we cannot approve the master’s finding that the petition ought to be dismissed. We agree with the master that the petitioner’s claim for hire of cars ought to be disallowed. We therefore direct that a decree be entered in favor of the petitioner for the sum of $478.44, with interest from April 3, 1887, and costs against the Buffalo, New York & Philadelphia Railroad Company.