ORDER H. RECALLING JUDGE BENJAMIN LITTLETON, RETIRED, FOR ACTIVE SERVICE ON THE COURT OF CLAIMS The Chief Judge having decided that it is necessary to recall Judge Benjamin H. Littleton, retired, to serve with the Court, and Judge Benjamin H. Littleton having assented, IT IS HEREBY ORDERED this ninth day of January 1959, that Judge Benjamin H. Littleton be, and is, hereby made an active member of the Court to sit, hear, and determine all questions which may arise in cases in which he may have heretofore participated and in any further cases which may be assigned to him. BY THE COURT [S] MARVIN JONES, Chief Judge. DESIGNATIONS OF JUDGES FOR SERVICE ON THE UNITED STATES COURT OF CLAIMS The Chief Justice of the United States, the Honorable Earl Warren, pursuant to the authority vested in him by Title 28, United States Code, designated and assigned the following judges to perform the duties of judges of the United States Court of Claims on the dates indicated below: December 1-5, 1958, Honorable Charles Fahy, Judge, December 1-5, 1958, Honorable Walter M. Bastian, 554378-61-2 XVII TRIBUTE TO JUDGE BENJAMIN H. LITTLETON NOVEMBER 3, 1958 At the opening of the November term of court, Chief Judge Jones announced the retirement, effective October 31, 1958, of Judge Benjamin H. Littleton, who had completed 29 years of service as judge of the United States Court of Claims. On that occasion the Chief Judge paid Judge Littleton the following tribute: "I know of no judge anywhere who has worked harder or been more thorough in his research. He has always been a diligent, thorough and brilliant student. In fact, I am told that during the days when he was practicing his profession in Tennessee one of his admirers commented that he should change his sign from attorney at law to eternally at law. "The judge has never sought the limelight, but has been content to let his work reflect its quality. That quality is like a star and dwells apart. It reflects the very nature of the man whose life and character are the image of justice and fair play, which are a part of the warp and woof of his being. "His disposition is as gentle as the perfume of a flower, but his convictions are as deep and strong as any man's. I don't think he ever harmed anybody and I am sure he never wronged anybody. He has all those fine qualities that make an ideal judge." Prior to his appointment to the United States Court of Claims in 1929, Judge Littleton had served as assistant United States attorney for the Middle District of Tennessee, and as special attorney for the Treasury Department, and as a member of the United States Board of Tax Appeals (now the Tax Court of the United States) from July 1924 until his appointment to the United States Court of Claims. CASES DECIDED IN THE UNITED STATES COURT OF CLAIMS November 1, 1958, to January 31, 1959, and other cases not heretofore published. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions. THE WESTERN PACIFIC RAILROAD COMPANY v. THE UNITED STATES [No. 533-52. Decided November 5, 1958] ON THE PROOFS Carriers; carriage of goods; action for charges; applicable tariff.In an action by a common carrier by rail to recover additional transportation costs on the ground that the local domestic rate charged was the lowest applicable rate, and that the through export rate resulting in a lower cost was not applicable, it is held that the defendant was not entitled to the lower through export rate since the Interstate Commerce Commission on April 21, 1958, ruled that the defendant was not entitled to the rates provided for in that tariff and accordingly plaintiff is entitled to judgment on the basis of the local domestic rate, with land-grant deductions. Carriers 192 Carriers; carriage of goods; applicable tariff; determination by Interstate Commerce Commission.-Where the Interstate Commerce Commission determined that Freight Tariff T-1-A relied on by defendant was not applicable to the shipment in question, the plaintiff was entitled to recover the higher rates required by another tariff. Mr. Raymond A. Negus for the plaintiff. Mr. Lawrence Cake was on the briefs. Mr. Paris T. Houston with whom was Mr. Assistant Attorney General George Cochran Doub for the defendant. Mr. Lewis A. Dille was on the briefs. 1 Findings of Fact 144 C. Cls. Opinion per curiam: On February 6, 1957, following submission of this case to the court on the basis of a report by the trial commissioner of this court, Roald A. Hogenson, and the briefs and arguments of counsel, the court entered an order suspending further proceedings, pending a determination by the Interstate Commerce Commission on the question as to whether defendant is entitled to the transit privileges authorized in Freight Tariff T-1-A on the shipments remaining in issue in this case. On April 21, 1958, the Interstate Commerce Commission rendered its decision holding that the defendant was not entitled to the rates provided for in the subject tariff. 303 ICC 571. On October 14, 1958, defendant moved to vacate the order of suspension to which motion plaintiff on October 15, 1958, filed a notice of concurrence. Said motion was allowed on October 17, 1958. Upon a consideration of the whole record, including the decision reached by the Interstate Commerce Commission to which reference is made above, and the findings of the trial commissioner, which are hereinafter set forth and adopted by the court, we hold that plaintiff is entitled to recover. Judgment will therefore be entered for plaintiff in the sum of $1,761.17, and defendant's counterclaim will be dismissed. It is so ordered. FINDINGS OF FACT 1. Plaintiff is a corporation organized and existing under the laws of the State of California, and is a common carrier by railroad in interstate commerce over its own lines and jointly with other carriers. 2. In 1943 plaintiff performed transportation services for the defendant by carrying a number of shipments of 1/4-ton 4 x 4 motor vehicles, commonly known as jeeps, on Government bills of lading issued by the War Department. On December 1, 1953, this court entered summary judgment for the plaintiff that the jeeps were to be classified and rated as passenger motor vehicles, and entry of judgment was suspended pending disposition of issues relating to the proper amount to be paid to plaintiff for the transportation services involved in this case. |