The defendants contend that consideration should be limited to shipments which moved 2 years prior to April 28, 1947, embracing a total of 13 cars. They rely on the provisions of rule 25(b) of the Commission's Rules of Practice, which require that where damages are sought the complaint should contain such data as will serve to identify with reasonable definiteness the shipments in respect of which recovery is sought.

In the informal complaint as originally filed October 7, 1946, it was stated that the complainant was in the general contracting business and, in the conduct of its business, had shipped numerous carloads of second-hand used machinery, implements, tools, and large roadgrading implements over the lines of the defendants. The following was alleged:

Beginning in September 1944, complainant moved between points in Tennessee, on the one hand, and Etowah, W. Va., on the other hand, numerous shipments of its equipment, and the rates demanded and collected, or demanded by Defendants, on such shipments were, are and continue to be, unjust and unreasonable, and in violation of Section 1 of the Interstate Commerce Act, Part I, also discriminatory in violation of Section 2, and unduly prejudicial to complainant, in violation of Section 3 of the Interstate Commerce Act, Part 1.

The complainant sets forth as its reason in support of the alleged violations that the rates and charges from or to Etowah, which is 2 miles north of Charleston, W. Va., are substantially higher than the rates and charges contemporaneously maintained from or to Charleston. In paragraph IV of the informal complaint it is further stated that the complaint was filed for the purpose of staying the statute in conjunction with such shipments, and that the complainant would assemble, compile, and present documents and statements for the purpose of making the complaint more specific and definite with respect to the shipments and rates and charges as collected versus the rates and charges which it believed were just and reasonable and otherwise lawful.

Upon receipt of this informal complaint, a letter was addressed by the Commission to complainant stating that no further action would be taken pending compliance with the statement in the aforementioned paragraph IV. In response to additional letters by the Commission, complainant submitted additional data on January 14, 1947, which it requested be considered as an appendix to the original informal complaint. This letter showed the shipments as consisting of road machinery, tractors, and contractors' outfits. The rates, origins, and destinations were specifically named, although not in respect to any particular shipments. In addition, the appendix consisted of rate comparisons. In the accompanying letter the complain

ant stated that it would submit a list of the shipments to be considered within a short time. The Commission's letter of acknowledgment, dated January 24, 1947, to the complainant stated that it should submit a list of the shipments and show origins, dates of origination, commodity descriptions, weights, routes of movements, destination, and dates of delivery or tenders of delivery. In response, the complainant on February 14, 1947, submitted a list of shipments from or to Etowah showing dates of movement, car initials and numbers, waybill numbers, and the freight charges thereon. On February 27, 1947, the Commission submitted the informal complaint, together with the additional information supplied by the complainant, to the defendants for their views with respect to informal adjustment on the basis sought. On April 28, 1947, the Commission received from the complainant its letter of April 25, 1947, together with a list of shipments, which list was also sent to the defendants, showing shipments to and from Etowah, dates of movement, commodity descriptions for each shipment, waybill numbers, car initials and numbers, routes of movement, weights, and origin points. This statement was not correct in all details. In addition, the accompanying letter from the complainant stated that The New York Central Railroad Company participated in the movement of some of the shipments, and that the complaint should be amended to include that carrier as a defendant. During this period of correspondence between the Commission and the complainant, the Commission did not indicate at any time that the informal complaint was insufficient to toll the statute.

In support of their position, defendants aver that the informal complaint as originally filed contained the following deficiencies:

(a) An exact description was not given of the articles embraced in the complaint that would enable the carriers to ascertain the rates alleged to be unlawful.

(b) The rates and charges alleged to be unlawful were not specified, and none of the transportation papers, such as bills of lading, paid freight bills, et cetera, were submitted by the complainant.

(c) Specific points of origin, destinations, and weights of shipments, references, and routes of movement were not specified.

Defendants say that they could not identify with reasonable definiteness the shipments to be considered from the meager information in the informal complaint and additions thereto, until April 28, 1947, when the shipments were specifically identified for the first time.

Weinberg & Gilbert v. Atlantic Coast Line R. Co., 208 I. C. C. 749, is relied on by the defendants. There the Commission found that the informal complaint therein failed to describe with reasonable particu

larity the shipments on which damages were claimed, and, therefore, it did not toll the statute as set forth in section 16 (3) of the Interstate Commerce Act. The Commission said that while strict compliance with the rules of pleading is not required by it, nevertheless, when the question of damages is raised and reparation is sought, defendants have the right to be informed with reasonable definiteness of the grounds on which the claim is based, and that the purpose of its rules is to require the allegation of such facts as will put defendants on notice of the issues that they are called upon to meet.

Later, in Cicardi Bros. Fruit & Produce Co. v. Atlantic C. L. R. Co., 227 I. C. C. 67, the Commission, considering an informal complaint essentially similar to the one considered in Weinberg & Gilbert v. Atlantic Coast Line R. Co., supra, found such informal complaint sufficient in substance to toll the statute. The Commission stated that prior to the decision in the latter proceeding, the rule had long been that a complaint which appraised a defendant of the nature of a claim, though couched in general terms and lacking in specific details, was sufficient to stop the running of the statute, and cited Anderson Oil Co. v. Atchison, T. & S. F. Ry. Co., 198 I. C. C. 525. There the informal complaint merely designated the names under which the complaining parties were doing business, the commodities shipped, the origin territory, and the destinations. In that proceeding division 3 cited Coakley v. Director General, 59 I. C. C. 141, in which it was stated that complaints containing a general description of the shipments upon which the reparation is sought are sufficient to meet the requirements of the statute. This principle was reiterated in Susskind v. Florida East Coast Ry. Co., 270 I. C. C. 239. It is clear that. no hard and fast rule may be established, and each controversy must be decided upon the facts of record. As indicated, our rules of practice provide that complaints shall contain such data as will serve to identify with reasonable definiteness the shipments in respect of which reparation is sought. What is or is not reasonable definiteness must be left to our considered judgment.

Paragraph II of the instant informal complaint, read in conjunction with paragraph III thereof, indicates that the "numerous shipments of its equipment" refers to second-hand machinery, implements, tools, and large road-grading implements. Generally, the points of origin and destination are shown. Also, the sections of the act alleged to be violated are set forth, with a showing of the rates the complainantdeems reasonable and not unjustly discriminatory or unduly prejudicial.

We find that this informal complaint is sufficient in substance to stay the statute. It contained the essential elements specified in the

rules of practice, and sufficiently informed the defendants of the nature of the claim against them.

On March 22, 1948, the Baltimore & Ohio and other carriers, and on March 27, 1948, The Cincinnati, New Orleans and Texas Pacific Railway Company and the Southern Railway filed motions requesting that the allegations in the formal complaint be made more definite. However, the defendants in their memorandum of facts and argument dated July 26, 1948, reply to the complainant's memorandum of facts and argument dated June 7, 1948. The defendants in their reply do not refer again to their motions, and in view of our findings the motions will not be further considered.

The New York Central was not named a defendant until receipt of the complainant's letter of April 25, 1947. We find that the New York Central is properly made a party defendant as of April 28, 1947. See Peter J. Schweitzer, Inc., v. Canadian National Rys., 208 I. C. C. 598, 600.

Some of the shipments herein moved during the pendency of the informal complaint, and that complaint did not contain a prayer for reparation thereon. However, reparation may be awarded on shipments moving during the pendency of a complaint, even though the complaint does not contain a specific prayer to that effect. Cicardi Bros., Fruit & Produce Co. v. Atlantic C. L. R. Co., supra, page 71.

With respect to the allegations of unjust discrimination and undue prejudice and preference, no evidence having been introduced in support thereof, they will not be further considered.

These shipments moved from Knoxville, Maryville, Alcoa, and Oliver Springs, Tenn., to Etowah and from Etowah to Maryville between 1944 and 1947. According to the waybills, the traffic consisted of mixed shipments of tractors, bulldozer blades, roofers, scoops, pusher frames and bells, angle blades, power control units, auto patrol, cable, track, bulldozers and harness, springs, air compressors, light plants, draw bars, hydraulic press, conveyor, gantry extensions, power shovels of various descriptions, et cetera. In the southern classification, under the heading of "Outfits, bridge builders, contractors' or graders, noibn [not otherwise indexed by name and not more specifically provided for in the classification], without livestock loose or in packages," a carload rating of sixth class was in effect when these shipments originated. For convenience these shipments, in some instances, are referred to herein as contractors' outfits. As to the shipments from Knoxville to Etowah, one consisted of two tractors weighing 77,900 pounds and the other of Letourneau wagons weighing

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30,300 pounds. One shipment from Etowah to Maryville consisted of only a scraper weighing 24,300 pounds. The average weight of the shipments, other than those just referred to, approximated 68,400 pounds. Routes of movement of these shipments will be referred to hereinafter as routes 1, 2, 3, 4, 5, and 6.2 Forty-one shipments moved from Knoxville to Etowah via 6 different routes. Two of these shipments moved via route 1, 2 moved via route 2, 24 moved via route 3, 6 moved via route 4, 4 moved via route 5, and 3 moved via route 6.

The one shipment from Alcoa to Etowah moved via route 5. The two shipments from Maryville to Etowah moved via route 3. The two shipments from Oliver Springs to Etowah moved via route 3. Of the three shipments from Etowah to Maryville, two moved via route 5, and the other via 3.

A sixth-class rate of 73 cents was charged on the shipments originating at Knoxville, Alcoa, and Maryville. On the shipments originating at Oliver Springs, a sixth-class rate of 74 cents was charged. A sixth-class rate of 73 cents was charged on two of the three shipments from Etowah to Maryville via route 5; on the remaining shipment, which moved via route 3, a combination rate of 76 cents was charged.

In Agent Curlett's tariff I. C. C. No. A-800, there were published the joint through class rates charged on these shipments. In item No. 10 thereof there was provided the following alternative application of combination rates:

If the charge based on the aggregate of intermediates local, joint or proportional rates named in tariffs lawfully on file with the Interstate Commerce Commission over any route via which the through rates named in this tariff, as amended, apply, is lower than the charge accruing under the through rates published in this tariff, from origin to destination, such lower charge will be the legal charge to apply via the route over which said lower aggregate of intermediate rates is applicable.

Route 1. Southern Railway Company to Cincinnati, Ohio, thence the Baltimore & Ohio Railroad Company to Groveton (this appears to be in error, it apparently should be Grosvenor, Ohio, which is the function point between the Baltimore & Ohio and the New York Central), thence the New York Central to destination.

Route 2. Southern Railway to Cincinnati, thence The Chesapeake and Ohio Railway Company to Charleston, W. Va., thence the Baltimore & Ohio to destination.

Route 3. Complainant shows this route as being the Southern Railway to Johnson City, Tenn., thence the "Clinch-C. & O." to Charleston, thence the Baltimore & Ohio to destination. Such a route would necessitate the shipment passing through St. Paul, Va. The point of interchange between the Clinchfield Railroad Company and the Chesapeake & Ohio is Elkhorn City, Ky., and the Clinchfield Railroad from Johnson City to Elkhorn City passes through St. Paul.

Route 4. Louisville and Nashville Railroad Company to Winchester, Ky., thence the Chesapeake & Ohio to Charleston, thence the Baltimore & Ohio to destination.

Route 5. Southern Railway to Cincinnati, thence the Baltimore & Ohio to destination. Route 6. Southern Railway to Cincinnati, thence the New York Central to Charleston, thence the Baltimore & Ohio to destination.