WISDOM, Circuit Judge.
The Court has considered carefully the appellants’ application for a rehearing.
I.
The appellant warehouse companies argue that there is a direct conflict in statutory construction between this Court’s opinion in the instant case, 288 F.2d 759, and the opinion of the three-judge court in Southern Railway Co. v. United States, D.C., 186 F.Supp. 29. The latter decision affirmed the ruling of the Interstate Commerce Commission that Southern’s rental practices at the Birmingham Food Terminal were unlawful under Sections 2, 3(1) and 6(7) of the Commerce Act, 49 U.S.C.A. §§ 2, 3(1), 6(7). While the Commission’s decision was not reached until after the trial below, both the Commission’s decision and the appeal taken by Southern became final before this appeal was decided. Appellants contend that the three-judge court, speaking through Judge Seybourn Lynne, decided the major issues in this appeal and that this Court’s decision creates irreconcilable conflicts in the law applicable to the Birmingham Food Terminal.
The Commission stated in its opinion in Shaw Warehouse Co. v. Southern Railway Co., 308 I.C.C. 602, 611 (1959): “The Commission is the guardian of the general public interest, and proceedings before it are not in the nature of private litigation, but are matters of public concern in which the whole body of .shippers and carriers is interested.” In the three-judge case Southern Railway contended that the judgments entered in the instant suit, then pending on appeal, were res judicata of the Commission’s order. Judge Lynne, for the court, held: “[Rjegardless of the outcome of such appeals, the appropriate conditions for application of the doctrine of res judicata are not present. The parties are not even the same. The success or failure of private litigation cannot have the effect to bar or stay the power of the Commission to act in a public proceeding such as that before the Commission under the Shaw Company complaint. See Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.” Southern Railway Company v. United States, 1960, 186 F.Supp. 29, 41.
Judge Lynne was thoroughly familiar with the litigation and any possible conflicts. He was the district judge who presided at the trial of this case below. At that time he had the full benefit of the Commission’s lengthy opinion. Proceedings before a public agency and proceedings in a private suit for damages are different in objectives, breadth of approach, and issues. Not the construction of the Commerce Act but the application of the Act is different. Once over the hurdle of the motions to dismiss, this case was a factual one for the jury to decide. The jury had before it considerable evidence not contained in record of the Commission’s proceedings. And, the important questions of causation and in[852]*852jury, which may have been crucial in the minds of the jurors, were not present in the I.C.C. proceedings.
Shaw Warehouse Company initiated the proceeding before the Commission; Boggs Cold Storage Company and Birmingham Ice and Cold Storage Company intervened. Under the Act, the warehouse companies could seek damages and other relief from the Commission. Instead, they elected to sue for damages in the district court. The jury held against them in that forum. We are still unimpressed with the argument that we should reverse the verdict in the forum below on the strength of a finding in a different kind of proceeding in another forum.
In the original briefs appellants argued that “the regulatory agency decision should be given special weight in these appeals.” At that time the three-judge case had not been decided. We have given “great weight” to the opinions of the Commission and Judge Lynne. Still we must decide this case on the record before us and in the light of the law as we read it.
II.
Judge Lynne, the hero of appellants first argument, is, along with this Court, the villian of their second argument: that the trial judge erred in allowing counsel for the Southern Railway to engage in prejudicial remarks and cross-examination allegedly picturing Southern Railway as the friend and champion of the poor and defenseless against the warehouse companies, rich and powerful exploiters of the less fortunate. This argument, first made with some moderation on behalf of all the appellants in the original hearing, is now urged only by counsel for Shaw Warehouse Company and Boggs Cold Storage Company in a supplemental petition and brief on rehearing.
Another reading of the record confirms our view that Judge Lynne did not abuse his discretion as a trial judge in controlling the attorneys’ argument and cross-examination. Judge Lynne is an able, experienced district judge whose record is beyond criticism. After the trial below, when he attempted to rescue himself from serving on the three-judge court, by agreement of all of the parties he consented to serve.
As stated in our original opinion, we do not endorse improper arguments, such as the allusions to Marie Antoinette, but we find no reversible error. It is hard to say which litigant is the pot and when it started calling the kettle black. Southern says, for example, that counsel for Boggs and Birmingham Cold Storage was the first to make the housewife an issue. Considering the length of the trial and the intensity of the feelings engendered by the trial and events preceding it, we think that the lapses were relatively few; their probable effect must be weighed against the total effect of the case on the jury. The record as a whole reflects great credit on the ability and judgment of the district court in keeping the lawyers within the bounds of propriety.
III.
The application for rehearing raises points of law the Court considered in the writing of the original opinion. One of these points, however, should be clarified.
Appellants contend that the Court makes a warehouseman’s status as a shipper an issue of fact when it is an issue of law. Appellants over-simplify the question in stating it in terms of a warehouse company being a “person” within the meaning of Sections 2, 3(1) and 6(7) of the Commerce Act and of a warehouseman being a “shipper” as a matter of law. As pointed out in the opinion, there is no doubt that warehouse companies are persons within the Act and that they have standing before the Commission as shippers. What they must prove in an action to recover damages is a different matter. The Commerce Act has reached the ripe old age of seventy-five years. During that time there has been only one action for damages comparable to the instant case. Pittwood v. Northern Pacific Ry. Co., [853]*8531918, 51 I.C.C. 535. In Pittwood the Commission held: “A warehouse owner, a landlord seeking to rent his property, as such, has no relation with a common carrier which could result in a discrimination against him in violation of the act to regulate commerce. The discrimination there forbidden is in respect of transportation.”
We said in our opinion that Pittwood might be distinguished on the ground: “In Pittwood the injury was to a landowner whose real estate investment depreciated in value; the injury was not the result of discrimination with relation to transportation.” Judge Lynne made the same distinction in Southern Railway v. United States, 1960, 186 F.Supp.
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WISDOM, Circuit Judge.
The Court has considered carefully the appellants’ application for a rehearing.
I.
The appellant warehouse companies argue that there is a direct conflict in statutory construction between this Court’s opinion in the instant case, 288 F.2d 759, and the opinion of the three-judge court in Southern Railway Co. v. United States, D.C., 186 F.Supp. 29. The latter decision affirmed the ruling of the Interstate Commerce Commission that Southern’s rental practices at the Birmingham Food Terminal were unlawful under Sections 2, 3(1) and 6(7) of the Commerce Act, 49 U.S.C.A. §§ 2, 3(1), 6(7). While the Commission’s decision was not reached until after the trial below, both the Commission’s decision and the appeal taken by Southern became final before this appeal was decided. Appellants contend that the three-judge court, speaking through Judge Seybourn Lynne, decided the major issues in this appeal and that this Court’s decision creates irreconcilable conflicts in the law applicable to the Birmingham Food Terminal.
The Commission stated in its opinion in Shaw Warehouse Co. v. Southern Railway Co., 308 I.C.C. 602, 611 (1959): “The Commission is the guardian of the general public interest, and proceedings before it are not in the nature of private litigation, but are matters of public concern in which the whole body of .shippers and carriers is interested.” In the three-judge case Southern Railway contended that the judgments entered in the instant suit, then pending on appeal, were res judicata of the Commission’s order. Judge Lynne, for the court, held: “[Rjegardless of the outcome of such appeals, the appropriate conditions for application of the doctrine of res judicata are not present. The parties are not even the same. The success or failure of private litigation cannot have the effect to bar or stay the power of the Commission to act in a public proceeding such as that before the Commission under the Shaw Company complaint. See Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.” Southern Railway Company v. United States, 1960, 186 F.Supp. 29, 41.
Judge Lynne was thoroughly familiar with the litigation and any possible conflicts. He was the district judge who presided at the trial of this case below. At that time he had the full benefit of the Commission’s lengthy opinion. Proceedings before a public agency and proceedings in a private suit for damages are different in objectives, breadth of approach, and issues. Not the construction of the Commerce Act but the application of the Act is different. Once over the hurdle of the motions to dismiss, this case was a factual one for the jury to decide. The jury had before it considerable evidence not contained in record of the Commission’s proceedings. And, the important questions of causation and in[852]*852jury, which may have been crucial in the minds of the jurors, were not present in the I.C.C. proceedings.
Shaw Warehouse Company initiated the proceeding before the Commission; Boggs Cold Storage Company and Birmingham Ice and Cold Storage Company intervened. Under the Act, the warehouse companies could seek damages and other relief from the Commission. Instead, they elected to sue for damages in the district court. The jury held against them in that forum. We are still unimpressed with the argument that we should reverse the verdict in the forum below on the strength of a finding in a different kind of proceeding in another forum.
In the original briefs appellants argued that “the regulatory agency decision should be given special weight in these appeals.” At that time the three-judge case had not been decided. We have given “great weight” to the opinions of the Commission and Judge Lynne. Still we must decide this case on the record before us and in the light of the law as we read it.
II.
Judge Lynne, the hero of appellants first argument, is, along with this Court, the villian of their second argument: that the trial judge erred in allowing counsel for the Southern Railway to engage in prejudicial remarks and cross-examination allegedly picturing Southern Railway as the friend and champion of the poor and defenseless against the warehouse companies, rich and powerful exploiters of the less fortunate. This argument, first made with some moderation on behalf of all the appellants in the original hearing, is now urged only by counsel for Shaw Warehouse Company and Boggs Cold Storage Company in a supplemental petition and brief on rehearing.
Another reading of the record confirms our view that Judge Lynne did not abuse his discretion as a trial judge in controlling the attorneys’ argument and cross-examination. Judge Lynne is an able, experienced district judge whose record is beyond criticism. After the trial below, when he attempted to rescue himself from serving on the three-judge court, by agreement of all of the parties he consented to serve.
As stated in our original opinion, we do not endorse improper arguments, such as the allusions to Marie Antoinette, but we find no reversible error. It is hard to say which litigant is the pot and when it started calling the kettle black. Southern says, for example, that counsel for Boggs and Birmingham Cold Storage was the first to make the housewife an issue. Considering the length of the trial and the intensity of the feelings engendered by the trial and events preceding it, we think that the lapses were relatively few; their probable effect must be weighed against the total effect of the case on the jury. The record as a whole reflects great credit on the ability and judgment of the district court in keeping the lawyers within the bounds of propriety.
III.
The application for rehearing raises points of law the Court considered in the writing of the original opinion. One of these points, however, should be clarified.
Appellants contend that the Court makes a warehouseman’s status as a shipper an issue of fact when it is an issue of law. Appellants over-simplify the question in stating it in terms of a warehouse company being a “person” within the meaning of Sections 2, 3(1) and 6(7) of the Commerce Act and of a warehouseman being a “shipper” as a matter of law. As pointed out in the opinion, there is no doubt that warehouse companies are persons within the Act and that they have standing before the Commission as shippers. What they must prove in an action to recover damages is a different matter. The Commerce Act has reached the ripe old age of seventy-five years. During that time there has been only one action for damages comparable to the instant case. Pittwood v. Northern Pacific Ry. Co., [853]*8531918, 51 I.C.C. 535. In Pittwood the Commission held: “A warehouse owner, a landlord seeking to rent his property, as such, has no relation with a common carrier which could result in a discrimination against him in violation of the act to regulate commerce. The discrimination there forbidden is in respect of transportation.”
We said in our opinion that Pittwood might be distinguished on the ground: “In Pittwood the injury was to a landowner whose real estate investment depreciated in value; the injury was not the result of discrimination with relation to transportation.” Judge Lynne made the same distinction in Southern Railway v. United States, 1960, 186 F.Supp. 29, 42, indicating thereby that he too considered that not every warehouseman must be treated as a shipper. The discrimination must relate to transportation. Here, if the evidence had shown beyond a reasonable doubt that the appellants were in fact complaining only because the advent of a competitor had produced a decline in rental value of warehousing property in downtown Birmingham, and not because of a discrimination relating to transportation, we would have held that the court erred in not directing a verdict for Southern.
The trial judge did not present this issue to the jury, perhaps because, as appellants suggest, he considered that the matter was settled as one of law. We consider the question essentially a factual one or a mixed question of fact and law. In any event, the trial judge properly overruled appellee’s motions to dismiss and for a directed verdict and appellants have no cause for complaint.
We have considered all of the other points raised in the briefs on rehearing. We find it unnecessary to discuss these points. The petition for rehearing is
Denied.