Full opinion text
JAMES ALGER FEE, Chief Judge. This opinion will concern itself with long dead events. The passions and emotional stresses which brought these about have lost their flame. In the interest of the public and the nation, it may be assumed that never again will the employer, the unions and the carriers be enmeshed in such a train of events. These circumstances must be reviewed to determine only whether there is legal responsibility for the situation and, if so, whether damages shall be allowed against the carriers jointly or against any one of them alone. It is the essence of the judicial process to perform such a function dispassionately under the law. The great difficulty is to bring the facts into any compass of succinct statement. The attorneys in the case accomplished a monumental work, after conferences extending over years, by bringing to the Court for signature a pre-trial order wherein all except a minute part of the evidentiary facts were agreed upon within some thirty-six hundred pages. As a result, the evidence in the ease was taken in nine trial days. Inasmuch as informed estimates of the length of trial were stated as from eighteen months to two years, the lightening of the judicial load is apparent. When it is appreciated that the result was accomplished by examinations, tabulation and calculation of tariffs, connecting rates, history of shipments, plotting of mercantile and carrier operations, investigations into labor relations and the history of particular incidents, besides innumerable other factors, the magnitude of the task begins to take form. Many years of arduous work by the leading counsel for the carriers and the company in taking depositions, fixing statements of fact which all counsel could agree upon, and then making changes required to make them acceptable to opposing counsel required devotion hardly conceivable. The issues of law and fact which remain to be settled are included in the order, as well as the contentions which each of the respective parties make thereto. The problem of the Court is to reduce these multitudinous facts and issues into a reasonably short and understandable opinion. The facts in barest outline follow: Wards was engaged in the business of general merchandising through mail order houses and retail stores located at various points in the United States. Its establishment at Portland, Oregon, consisted of a mail order house and a retail store in the same building. The Portland plant was dependent upon common carrier service, local drayage, parcel post, water and other transportation service, before and during the period involved, to carry on the regular course of its business at Portland. This action is brought against line-haul rail carriers, Terminal Company, line-haul motor carriers and Railway Express alone. Each of the line-haul rail carriers operated an interstate line of railroad extending to Portland. Track connections were maintained with other rail carriers there. Terminal Company, a subsidiary of these line-haul railroads, operated an extensive system of terminal yards and tracks connecting with those of the line carriers. It operated on spur tracks serving various industries and establishments, under contracts of twenty-five years’ standing with these carriers, which gave Terminal Company the right to perform switching service for most of the area and all such service for Zone 1 North, which included Wards. Before the period here involved, carload shipments and other bulky articles or large lots were transported across the Portland area by rail and were delivered to or received from Wards through that company on one of three spur industry tracks. Each of these crossed a public street before it ended on ¥iards’ property. The line-haul carriers each included in their respective tariffs rates for service on ingoing and outgoing parcels between the carrier’s freight depot and the place of business of the shipper or consignee in an area which included Wards’ establishment in Portland. This service, commonly called “pick-up and delivery,” provided for acceptance of goods at the shipper’s plant and transportation across the Portland area to the facilities for line-haul and also provided for transportation of goods addressed to a consignee across the Portland area and delivery at its place of business. Such tariffs provided that the shipper or consignee, at its option, might receive a fixed fee if it performed these services itself. Each of the motor carrier defendants was a common carrier of freight by motor vehicle, authorized to transport general commodities to and from Portland, operating under either a permit issued by the Public Utilities Commissioner of Oregon or a certificate issued by the Interstate Commerce Commission, or both. The motor carrier defendants had been carrying a substantial amount of Wards’ goods in line-haul before the occurrences in question here. The burden of pick-up and delivery service, as above described, by Railway Express and by each motor carrier defendant was accepted in their respective tariffs. Wards’ loading facilities were limited. Contracts were in force between one Robertson and Wards for transportation of freight between the line-haul carrier depots and the establishment. Each line-haul rail carrier and most motor carriers had arrangements with Robertson for such pick-up and delivery because of positive notification from Wards that this was desired. Before December 7, 1940, a labor dispute arose between Wards and a large number of employees at its Portland plant. On that day a strike was called by a clerks’ union and a warehousemen’s union, both of which were composed of employees of this merchandising concern and were affiliated with the American Federation of Labor. There was a lull until negotiations broke down on December 20, 1940. A picket line, however, was maintained throughout the strike period covering all street entrances, facilities for motor vehicles and openings for switch tracks. The warehousemen’s local above mentioned was connected with the general Teamsters Union. The latter had another affiliate, members of which were drivers and operators of motors and which was a transport union exclusively. The transport union held closed shop contracts with practically all the motor carriers in the Portland area. The labor executives connected with the Teamsters devised a plan of total prohibition of transportation and handling of Wards’ goods in that area and all supplies for its plant and of preventing access to the facilities of commerce, state and national, for goods going out of the plant and transportation and delivery of goods transported in commerce to the plant. The scheme was to be carried out by placing unfair lists, procuring employees of other firms and concerns to take concerted action to refuse to handle or to transport Wards’ goods, or to receive from or deliver goods to Wards. In order to keep away from public disapproval, which had been visited on some labor leaders connected with and members of these unions not long before, orders were given that there should be no violence, but concurrence was to be obtained by the familiar methods called “peaceful” in the argot of many adherents. One of these was the cancellation of membership of anyone belonging to this transport union who failed to carry out these directions and objectives. Another was the picketing of the carriers’ establishments and houses of suppliers for handling Wards’ goods. All but five of the line motor carrier defendants received goods or had goods tendered to them for delivery to Wards’ Portland establishment either in interstate or intrastate commerce just before and during the strike period. Wards would have delivered to the line-haul motor carriers sufficient freight for their capacity during the strike. However, on most of the motor carriers, Wards made only one formal demand in mass upon the 13th day of December, 1940. The reason for this was that the motor carriers from the beginning were impressed with the idea that they must go along with the union leaders. A few of them sent trucks to Wards for the purpose of entering the plant. The drivers of these vehicles on the ground in line of duty for these carriers made no attempt to cross the picket line and returned to their respective depots. There was no attempt of any line-haul motor carrier defendant to carry any of Wards’ freight across the Portland area except in line transit. None of the motor carriers, by their employees, made a determined effort to serve Wards. A few of the drivers who refused to serve Wards were discharged but reinstated under pressure. The major motor carriers had agreements in similar form with Local 162, the operators and drivers union connected with the Teamsters, which contained the clause: “It is understood that the Union is not in favor of sympathetic strikes, and will do everything in its power to prevent them during the life of this agreement. It is also understood and agreed that movements of freight in interstate commerce, or in intrastate commerce insofar as affects shipments from city to city, over lines of the Operator operating under certificates or permits issued by Federal or State authority or under jurisdiction of the Interstate Commerce Commission shall not be subject to interference.” Their agreements ran for a fixed time, which ended March 1, 1941. The motor carriers were threatened with boycott and strikes of the motor carriers’ employees if Wards’ goods were handled. In instances, picket lines were threatened if the suggestions were disregarded, and in a few cases were actually posted. Such a barrier was threatened to be set up around Robertson’s depot because of its local pick-up and delivery of Wards’ goods under contract for transport across the Portland area for delivery to Wards as consignee or at the facilities of the line carriers in intrastate and interstate commerce. Robertson ceased handling Wards’ goods except surreptitiously. This agency of both type carriers was not replaced by them or another substituted. A picket line was set up at the establishment of Pierce Auto Freight Lines, Inc., because Wards’ goods were handled by the carrier. Thereupon, the employees of Pierce, members of the transport union, walked off and refused to return until Pierce promised the union leaders “to do better.” Whereupon, the picket .line was withdrawn. Wards’ goods were thereafter handled by Pierce only under cover of fictitious bills of lading even in line-haul transit. Many of the motor carriers also cooperated in this way. Thereupon, contrary to the plain letter of their contracts with the transport union, upon which they had been vociferously insisting, most of the motor carrier defendants, at meetings of their league, actually consented to go along with the illegal boycotts and isolation of Wards from transportation except for shipments under some form of concealment. No one of them insisted effectively that the interpretation of a clause be submitted to arbitration, although the unions had expressly agreed to this action in their separate contracts. In fact, the carriers deliberately failed to issue a call for a joint meeting to negotiate concerning the arbitration stipulation. The union leaders violently repudiated the stipulation for arbitration, and the motor carriers jointly continued in the combination which had the sequestration of Wards as its major purpose. Prior to March 1, when their agreements with the transport union containing these clauses would have expired, the members of the Motor Carriers League negotiated new contracts with the transport unions, which contained a stipulation amending the clause set out above, as follows: “It shall not be a violation of this agreement for an employee to refuse to go through a picket line established by a bonafide A. F of L. Union.” To the end of the period, in accordance with this scheme, the motor carriers joined hands with the union leaders, through their employees with the acquiescence of the executives, to insulate the plaintiff’s Portland establishment from all means of conveyance of its goods, incoming or outgoing, through the area. During this time, each of the line rail carriers received goods for delivery to Wards in carload lots, less than carload lots and in individual shipments in interstate commerce and from points in the State of Oregon. No delivery was made of any of these until after the strike ended. Wards had on the floor at all times during the strike merchandise which it would have delivered to each of the line railroads, either in carload lots, less than carload lots or pick-up for transportation in interstate commerce under the filed tariffs. Of this the rail carriers were well aware. Terminal Company made some attempts to switch cars out of Wards’ plant. None of these was carried out after December 23, when there was an opera bouffe scene. The action was dramatic, but marked by unreality. There was a show of force by the pickets. To this Terminal Company and the line-haul rail carriers yielded. The agents and representatives of such carriers in line of duty, the switch crew on the ground, did not in good faith attempt to carry out the switches. There was no riot or general disturbance at the plant or elsewhere. Some sporadic acts of violence occurred around Wards’ establishment and a few connected with the difficulty at a distance. Only a negligible number of these were directed at an employee of a rail carrier. The employees of the railroad took the position that they refused to go through the picket line unless they could do so safely without breach of the peace, and of this they were to be the judges. These employees of the rail carriers were neither in the same business, type of business or connected concern with Wards or its employees, nor did they belong to the same or any affiliated union or group of unions with the strikers or the union leaders controlling the strike, the boycott and the picketing. Thereafter, the switch engine and crew were sent by Terminal Company to some locality on a switch track in the vicinity of Wards’ Portland establishment at least once a day during the entire period of the strike. The local police were not called during the period by the rail carriers on the occasion above mentioned, or any other. However, police appeared but refused on one occasion to take any action unless Wards promised to swear out complaints against all who were arrested. When this was accomplished, the officers did at times attempt to break down the more or less passive resistance and obstruction of the picket line. But the switch crew, who were the representatives of the rail carriers in line of duty, did not cooperate with the local officers, and as a result their efforts were unavailing. At this point, an executive of one of the rail brotherhoods, a union which had control over the recalcitrant employees of Terminal Company, took action in concert with the striking merchandising employees and the motor transport operators by ratifying the action of Terminal Company in' failing to cooperate with the local police. This prevented further action by Terminal Company, which took this excuse for inaction. The railroad executives had joint sessions, in which the inaction of Terminal Company, the failure to transport Wards’ goods in the Portland area, the repudiation of the-rail carriers’ obligations, and the failure to cooperate with the local police were given acquiescence. The railroad executives also tacitly approved the failure of Robertson to pick up and deliver at Wards and to transport the goods from and to their facilities in commerce. Neither Robertson nor Terminal Company was replaced as an agency for transportation'in the area, acceptance or delivery of Wards’ shipments. There were other minor incidents related to switching, but they are of the same character. The Court finds that the approach of the switch crew to Wards during practically all the rest of the strike period was a futile gesture, since all parties concerned were in agreement that no attempt in good faith would be made to serve the plant, and that, upon the appearance of the pickets on the line, the switch crew would withdraw. This was the uniform course of events. This cooperation by the Terminal Company employees in line of duty lasted throughout the strike and was acquiesced in by the Terminal Company and the line carriers. As a result, no switch was completed from December 25, 1940, until after July 26, 1941, when the pickets were withdrawn. There was an attempt by the unions to prevent any handling of goods of Wards at the freight houses of the line carriers. These freight houses were picketed by the transport unions which had contracts with the motor carriers. The rail employees respected such lines. In this situation, the rail carriers issued a document which indicated they would handle Wards’ goods in main line haul or in preparation for diversion in transit to other points, but not otherwise, and the picket lines were withdrawn. These incidents had an unquestioned effect, however, in persuading the management to assist in the boycott and isolation of Wards. These actions by the unions and acquiescence by the defendants acting in concert with them were successful. No line-haul rail carriers made any effort to give service of any kind to Wards’ Portland establishment by motor vehicle after December 7, 1940, or by rail after December 25, 1940, excluding the collusive action of Terminal Company’s switch crew. No effort was made by Railway Express to serve Wards through their regular motor vehicle service after their employees refused to cross the picket line. No motor carrier, here defendant, made any effort directly to give service to Wards after refusal of the truck driver employees to handle Wards’ goods or to go into the plant. There is no evidence that any carrier handled any article in local transportation after December 25, 1940. There is no evidence that the truckers moved a pound of freight toward Wards’ Portland establishment. They did not transport the goods to the vicinity of Wards’ premises and unload them as requested. The employees of the motor carriers did not place their refusal to move freight out of their own depots on the ground that the picket line was at the plant, but on the ground that the boycott was in effect and that the union would renounce them if they moved any such goods. The railroad crews did not bring any cars and leave them on the public street for Wards to unload if it could, nor make any such offer, nor move any freight or supplies for Wards through the Portland area except in handling for through transit to other points. No deliveries were made at the plant or acceptance of goods from the plant by any defendant as a line carrier after December 25. As mentioned above, there was minor handling of goods surreptitiously. Besides the incidents above outlined, the union leaders had Wards declared unfair by The Central Labor Council, the Oregon State Federation of Labor and Joint Council 37 of the Teamsters Union, which meant Wards was to be boycotted by the members. Boycotts were imposed by them against all those handling Wards’ goods, against certain establishments supplying Wards with commodities or equipment, against all persons or businesses transporting Wards’ goods and against certain concerns to require them to boycott a carrier transporting Wards’ goods. Whereupon, many private businesses refused to deal with the carrier. In some instances, these outside and unconnected establishments were picketed because of some action which the union leaders decided might be of benefit to Wards. However, the strikers and union leaders did not interfere to any appreciable extent with the public trading at Wards’ retail store located in the same building. They were, however, successful in stopping most intercourse between Wards and all the business concerns of the whole Portland area. The major oil companies ceased under pressure to sell oil to the plant. The longshoremen refused because of the boycott to load on freight cars destined for the Portland establishment goods which arrived at docks in the area by ship. The local drayage concerns in general did not serve Wards’ establishment during the period. Certain government agents either refused to assist in resisting the union leaders or took action unfavorable to Wards. The local representative of the Interstate Commerce Commission was requested to assist the operators of line trucking services and refused to do so, saying that “they could not take sides.” After April 1, the United States Post Office refused to deliver per day more than the amount of parcel post which Wards had received before the strike. As a result, the packages piled up in the local post office without delivery. The same governmental department refused to accept for posting more than the average amount Wards had delivered to it daily before the strike. As a result of its isolation from transportation, Wards closed its establishment on May 3, 1941, but the strike continued. Commencing May 16, 1941, Wards had petitioned the Interstate Commerce Commission, in a series of filings, for an order requiring twelve of the motor carriers to cease and desist from discrimination against its Portland establishment by failure and refusal to pick up and deliver goods. Warehousemen’s Local 206, Transportation Union 162 and other affiliates of the Teamsters Union, A. F. of L., intervened. Hearings were had and testimony was taken July 10, 11 and 12, 1941. On July 26, 1941, all the pickets had disappeared. The railroads commenced switching service through Terminal Company, and all the carriers resumed pick-up and delivery service to the Portland establishment, which reopened and attempted to re-establish normal operation. The carriers filed motions to dismiss the proceedings of the Commission on the ground that such proceedings were moot on August 18 and 22. Wards resisted for the reason that a determination was required as a precedent. The primary examiner of the Interstate Commerce Commission, who heard the witnesses, held that there was no violence which prevented delivery by the motor carriers, and that no relation to labor required their refusal, that their obligation as common carriers required them to render such service and recommended the order be granted. It was also indicated that the Commission still had jurisdiction notwithstanding the full compliance of the motor carriers involved. Exceptions were filed to this report. On December 1, 1942, a division of the Interstate Commerce Commission overruled the motions to dismiss. On May 10, 1943, Division 3 filed a report dismissing the complaints. The decision and the discussion hinged upon no other questions than the labor relations of the motor carriers with their own employees and with the strikers. Some months after the close of the strike, the National Labor Relations Board decided that Wards had been guilty of unfair labor practices as to its own employees in the dispute before the strike, and entered an order to cure the situation. On February 13, 1943, the Court of Appeals for the Ninth Circuit, National Labor Relations Board v. Montgomery Ward & Co., 133 F.2d 676, 146 A.L.R. 1045, in an appropriate proceeding, entered decree enforcing this order. Wards brought actions against certain steamship companies for failure to deliver at the plant cargo carried by them, in which substantially the same items of damage were set up as here. These cases went to judgment of dismissal for failure to prosecute or were voluntarily dismissed. In the instant action, Wards did not sue all the local draymen or all the motor carriers who were in a position to serve it but did not. Some of these were, first joined in this suit and thereafter dismissed. Wards has amended the complaint and may have changed the theory of action in some respects. However, the agreed pre-trial order now contains all the contentions of the parties. The Court had jurisdiction of a common law action based upon diversity of citizenship and jurisdictional amount. All the elements of such a cause of action are alleged in the complaint and specifically claimed by Wards in the pretrial order. Jurisdiction of each of defendants was obtained by appropriate service and general appearance and diversity is admitted. The debate here has nothing to do with the jurisdiction of the Court over the persons or subject matter. It relates instead to the law to be applied. But whether the common law of England with regard to common carriers for hire in the public interest be applied to the facts here because adopted by the' State of Oregon by constitutional convention, acts of its legislature and decisions of its courts, subject to specified modifications and limitations imposed by the paramount authority of the Congress, or the same common law of England be applied because assumed to be in existence by the federal statutes, subject to the same specific modifications and limitations, is a matter of supererogation. All that need be known is that any 'spurious obligation to refuse to serve one shipper, or consignee of goods in the hands of the carrier, while holding itself out to servé the public, and all shippers, upon equal terms, is void by. definition. This is true whether greed, fear or the dictates of the government motivate the refusal. For wé deal'here with obligations to the people, absolute when voluntarily assumed, and not with motives claimed to justify repudiatiqn. The interest of the public, not that of the parties, is transcendent. Now, at common law a carrier was obligated to accept and transport all commodities which it had held itself out to transport for hire, whenever such commodities were tendered to or accepted by it, on nondiscriminatory terms. No one was bound to invest himself with these duties and obligations' to the public. Such assumption created a status monopolistic in character. Voluntary entry into this state gave to the carrier the sovereign power of carrying on the King’s Highway for hire and other well known special privileges and prerogatives. • Correlative obligations were also of the essence of the status. The duty was a . public office or trust, conferred by the government as a franchise, accepted by the carrier voluntarily, and enforced for the public benefit. The common carrier was chargeable according to the “custom of the realm.” He could not refuse the duty incumbent by virtue of the public employment, for he was bound to serve all the people so far as his engagement extended “This rule is a politick establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons that they may be safe in their ways of dealing.” Lord Holt, Coggs v. Bernard, 2 Ld. Raymond 909. The carrier could set the time and frequency of journeys and designate the • places where he would accept and deliver goods. Whether these details were expressly specified or fixed by customary practice, they were then and are now called the “holding out” of the carrier. But the three essentials of the status so voluntarily assumed were acceptance, transportation and delivery to consignee. The fact that goods were to be transported should be brought home to the carrier by “request” for the service. But the requirement was satisfied by notifying him that the shipment was at an accustomed place for acceptance. Carrying the goods the full length of the designated route was-essential. Delivery, to the consignee at an accustomed or specified point was am obligation which stood ón an equal footing with acceptance and carriage. For breach of any of the three duties imposed in the public interest and defined in detail by the “holding out,” the common law gave a remedy, The penalty for failure was drastic. Liability for breach was almost absolute. Justification for failure was confined to acts of God or of the enemies of the King. Overweening force beyond power of the carrier to resist did not ex-cuse damage, loss or inability to deliver to consignee. The actions of the servants of the carrier were his actions. For their negligence, willfulness or default, he was liable. Their timidity or ■collusion in the face of violence gave him no immunity. The common law with reason feared the inability of one who had entrusted goods to another for distant delivery to prove the insidious motives of employees of the latter and ended by placing responsibility on the common carrier. As the old books say: “But to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier * * *.” This instant case shows the employees ■of the carrier are subject to the same influences today, and this rule has not lost its foundation in current situations. Thus one of the foundation stones of progress here has been the adoption of the common law, including this absolute obligation placed upon common carriers of goods in the public interest. Developed in the darkness of the middle ages in a feudal society, when the cart was the usual means of conveyance over “traces” bogged with rain and at times impassable in snow, where the carter was liable to be levied upon by outlaw baron and plundered by fantastic “road agents,” the status created in the public interest, with its indifference to saint or sinner, official or tradesman, has survived in modern law because of its equality of treatment to all who offer goods for carriage for a specified consideration between specified points in accordance with the holding out of the carrier. While the carrier might limit the holding out quite narrowly as to detail, in the public interest the obligation to serve each upon equal terms without discrimination was vital. So it has remained. Wards then bases its right to recover on these common law duties and obligations. In a diversity case, a United States court sits as a court of the state and applies the law of the forum, except where controlled by federal law. This attitude is" the more fitting in this case, since only local concerns of a merchandising establishment were involved at the outset. The carriers in this jurisdiction were governed by the common law principles just outlined, which exist here in full force because the State of Oregon, by its Constitution, laws and decisions, had adopted them. These principles then control all the incidents of the local .situation and intrastate transportation except as it may affect interstate commerce. .But the principles haye a much broader effect. At the time of adoption of;the common law by^the state, all lawyers assumed there was a body of law which was ascertainable and was applied by all courts, state and national, with minor variations, of which these obligations of common carriers were a part. The winds of doctrine have shifted this position. But more emphasis has been thereby placed upon law locally adopted, in which such obligations were inherent. This basic assumption also controlled the growth of the great carrier systems, railroad and motor, in this country. Therefore, the economic power of the United States is based upon these obligations of common carriers. The commerce clause of the Constitution was adopted in the light of their importance. The suggestion that these obligations have been abrogated or essentially modified by statute law or policy is unthinkable. In the preservation of these obligations, the public at large — not any class or clique — -is vitally concerned. Indeed, the nation will not long survive their destruction. Congress has acted upon this assumption of an ascertainable body of common law, including principles of carrier liability. The original Interstate Commerce Act and its subsequent amendments and addenda are unintelligible unless viewed in the bright daylight of this customary law. Yet we have now progressed so far that'competent lawyers can argue that the ancient obligations of the common carrier to the public have been destroyed. But the necessities of the people for a dependable transportation system, based upon unchanging duties of those engaged therein, has not passed away. The avowed purposes of each of the congressional enactments were to protect the individual members of the public from abuses and discrimination practiced by the carriers for their own purposes and profit. It is true, originally, combinations of capital perverted the carriers. The very things complained of here are claimed to spring from a discrimination practiced ágainst an individual shipper by a carrier. The purpose of Congress has not been to abrogate but to enhance protection against, discrimination. It is true, the carriers are placed under a rigid system of control, but this is for the purpose of effectuating and not weakening protection of the public. The express purpose of the Motor Carriers Act, which was placed in effect just previous to this boyco.tt engineered by the motor transport unions, was to bring these forms of interstate transportation into one national system by regularizing and unifying the obligations. Each of the carriers by motor here involved had been under common law obligations before the statute took effect. Like their precursors in England who assumed onerous obligations for the inestimable privilege of use of the King’s Highway in carrying goods for hire, so in the public interest the modern motor carriers are permitted to use highways maintained and constructed by the people of the State of Oregon and the other states at enormous annual expense. Their rights to operate were recognized under the so-called “grandfather” clauses. The contention that they were burdened only by obligations expressly set out in the Act is contrary to law and history. The Motor Carriers Act, 49 U.S.C.A. § 301 et seq., was an amendment which was supported by the foundations of the original statute. The Congress has never shown a disposition to destroy these original remedies or to repudiate the common law of the respective states relating to carriers. The common law remedies for breach of the obligations thereof were preserved by positive mandate, and the statutory remedial devices were made additions thereto. Thus countenance was given to the basic substantive principles then prevalent in the state systems and nationally observed in the public interest. The constant course of legislation has reiterated the common law responsibility of the carriers. It still subsists. If a contrary legislative intention can be rationalized from preambles or history or debates over the statutes, it is well to bring such an interpretation into the open so that the implication may be expressly repealed. This Court does not find such intention existed. As a corollary to the specious axiom that all liabilities and duties of carriers are expressly spelled out in the federal statutes or the obligations do not exist, the defendants apparently assume that the Interstate Commerce Commission was given primary jurisdiction over all controversies between carrier and shipper. Even under the federal statutes now in existence, the Interstate Commerce Commission was given no authority to hear or decide a cause of action pursued in the form of a common law remedy. It was given no power to award damage against any carrier for breach of the common law duty to receive goods for shipment upon proper request or to transport or deliver goods shipped at destination. The Commission was given no authority to consider a cause involving the tort of joint action by several carriers to assist one of them to breach its duty to receive, transport or deliver a particular shipment or shipments. The Commission was given power to consider specified violations of the statutes and technical questions requiring expert knowledge and skill. It was given no authority to determine questions of labor relations of any sort or the construction of tariffs or clauses of bills of lading, and no power to award reparations against any motor carrier, The carriers contend that the “holding out” was modified by certain statutes, both federal and state. The Court recognizes these enactments and gives them force so far as applicable. But there is a much broader claim to the effect that the holding out is modified (1) by the national transportation policy of the United States, (2) by the national labor policy of the United States, and (3) by carrier labor agreements, interpretations thereof and working rules or principles. The terms of the “holding out” are questions of fact. These are affected, of course, by the applicable statutes. If it is contended' that the- transportation policy of the United States means anything more than the common law of carriers, as modified, regularized and unified in operation by federal statutes, in the public interest the Court can give it no recognition. The labor policy of the United States cannot be conceived to authorize setting aside obligations of others by illegal acts of unions or labor leaders. It cannot authorize violence or threats of violence, picket lines for political purposes, “secondary” and “tertiary” boycotts to isolate a single business from the facilities, of commerce, or combinations of unions and labor leaders with business concerns such as the railroads and motor truck operators through their respective employees on the ground in line of duty to accomplish any such ik legal purposes. The labor policy of the United States, as exemplified in Oregon, has been of a most liberal character. All encouragement has been given to the unionization of labor and of the advertisement of grievances by picketing and the economic pressure of strike. The people have encouraged all manifestations of recognition of freedom of the individual from onerous economic restraints, even at great personal inconvenience to themselves. The courts have lent support to this program. But, on the other hand, there is no jurisdiction in which abuses of these privileges have been so sternly rebuked and none where crimes and oppression of labor leaders have been more quickly suppressed due to the force of law and public opinion. The public is always to be considered in these disputes between labor and capital. The holding out, whether by rail or motor carrier, was not and could not legally be conditioned by any contracts which any of the carriers may have had with its own employees. Working rules or principles within the economy of the carrier would not be permitted to modify its vital obligations.- Inadequacy of preparation of any carrier to carry out its engagement for hire made in the public interest might result in the surrender or cancellation of its franchise, but not in a modification of the fundamental duties. Any conditions of this sort would have been illegal. The rationale of this claim as to the limitation of the “holding out” is that the carriers are released from these duties outlined above, since the acts and omissions were those of its own employees over which it had no control because the latter indicated a sympathetic disposition not to handle or transport Wards’ shipments. If followed, this theory will revolutionize the present economic structure. A group of transportation employees can bring all the rail and motor systems to a standstill by refusing to transport articles destined for another country with which the group disagrees. The same ends can be obtained by a picket line dedicated to that end, which transportation workers will not cross. These are not theories, but pragmatic present day problems. Foreign policy, governmental action, political action and the extinction of private businesses can be controlled by collusive interaction of employees of carriers with outside and unconnected organizations. The contention, if adopted, would destroy the representation of the employer by his employees dealing with the public or individuals in another line of business. It would wipe out the corporate theory. The carriers were each responsible for the acts and defaults of their own servants' on the ground and in the course of employment. The common law of Oregon included the doctrine of respondeat superior. Furthermore, the servants of a common carrier in the discharge of regular duties bind the master by acts in line of duty although not only unáuthorized but expressly forbidden. The responsibility does not cease although the servant may have been actuated by purely personal motives, such as profit, malice or fear It has been noted above that apprehension of collusion and secret dealings by the carriers were the reasons for the imposition of absolute liability. The common law, as adopted in Oregon, required that the loyalties and obligations of the . employee of the carrier run to it, not to some outside or alien authority. In dealing with the world, the railroad or motor carrier is a person.- Its servants’ acts are its acts. Any other ruling would change the basic structure. The transportation employee, rail or motor, is charged with duties to the industry, to the shipper and to the public. The loyalty of the employee to the carrier, rail or motor, is inherent in his job, just as loyalty to the government prevents interruption of the public business in federal employment. The acts of transportation employees, both rail and motor, in the course of employment, even in repudiation of the basic obligations of the carrier, are the acts and omissions of the employer. The line-haul carriers were here not in the first instance dealing with their own respective employees, but with independent agencies, such as Robertson and Terminal Company. This circumstance makes their cooperation the more reprehensible. It is illegal, since the statutes, both state and federal, sanction the obligation of common carriers, for any person to interfere with the carrying out of such duties. It would be illegal for a carrier, by its operating practices, to attempt to limit the holding out or to make such an attempt by agreement with its own labor. it js now necessary to apply these eoncepts of common law to the complaint, Perhaps it may seem anomalous to consider the sufficiency of that document at this stage of the case. But challenges were made thereto by motions to strike, motions to make more definite and motions to dismiss — all of which the Court reserved. In view of the foregoing resumé of the common law and the statutory modifications, the Court finds the original complaint and the complaint as amended each stated a cause of action as to each defendant. The amendments did not essentially change the basic theory of Wards upon which insistence has been laid through all the proceeding and which was included in the contentions of the final pre-trial order. Definiteness and clarity have been attained by the admissions of fact and the issues of fact and law now before the Court. In dealing with this cause of action, it is well to dispose of certain technical contentions of the carriers. There is no necessity of bringing a separate complaint against each carrier based upon shipments upon which individual liability is claimed. All contentions as to responsibility arose out of the same transaction and joinder was permissible. Besides, there are allegations of joint action of defendants which are sufficient to obviate the objection. There are pointed contentions by defendants that the claims are multifarious, and that, as to each shipment as to each defendant, there should be a separate statement as to delay thereof. Defendants misconceive the gist of these claims. Reliance is not placed on delay or the contract on any particular item, but on the allegations and contentions that each defendant singly and defendants jointly failed and refused to receive, transport and deliver shipments according to obligations imposed upon each by the status of a common carrier in the public interest, which each had voluntarily assumed for hire and profit and in consideration of other special privileges accorded it thereby. As a matter of procedure, if a cause of action is stated against a defendant, nonjoinder of a nonessential party is not a defect. Here, neither adjective rules nor substantive law required plaintiff to join or retain as a party any individual or entity whom it did not wish to charge, or it could not prove, acted jointly with a defendant. This applies to local carriers, unions, labor leaders, ships and operators of ships. Let us then turn to the proof in order to determine whether a prima facie case has been established as to any defendant. Each defendant was proved by its own admission to have cloaked itself for hire with the perquisites and advantages of a common carrier in a business touched with the public interest. The Terminal Company had assumed the specific obligation to Wards of handling the switching operations required to carry out the basic commitments of the line rail carriers. As to certain shipments, each rail carrier bound itself by its voluntary undertaking to pick up or deliver such shipments by use of its own transport or local drayage, and, in lieu thereof, paid Wards a sum stipulated in the tariff for performing such services. The line rail carriers each adopted these incidents as part of the common law obligation of carriage by withdrawing reasonable regulations which they had previously set up requiring delivery to consignee at the freight depots and train tracks of the carriers. The abandonment was made deliberately by their tariffs for profit and in the attempt to meet competition by the motor carriers.- The line motor carriers, since they operated on highways constructed and maintained by the people, made transportation across the Portland area and pick-up and delivery a major consideration of their respective holding out for hire. This obligation was accepted by them in order to take business from the railroads. While they also. had an alternate arrangement for the shipper or consignee to receive and deliver at their respective depots, this was only an additional advantage to the shipper. Robertson had all the duties of a line-haul motor carrier, in addition to specific commitments to the other motor carriers and the line railroads. The Railway Express Company had assumed the obligations similar to the other carriers. The question of reasonable request for service is next for consideration. As to inbound shipments, the carrier, upon acceptance, voluntarily assumed obligations for hire which required transportation across the Portland area and delivery to Wards, as consignee, at its Portland establishment, at all events and at the peril of the carrier, as above noted. It is an admitted fact that with but five exceptions each carrier, rail or motor, had in its possession during the period at least one shipment from a point outside the Portland area regularly consigned and accepted for delivery to the Portland éstablishment. As to outbound shipments, there must have been a reasonable request .for receipt at the plant and transportation to the line equipment of the carrier. Such request was conclusively established by the knowledge of the individual carriers as to the demands of Wards, its known necessities and the carrier’s own previous practice of receiving goods from the establishment. In any event, repudiation by the carriers absolved Wards from making the request. Neither the line-haul rail carriers nor the line-haul motor carriers limited the three essentials of the “holding out.” Each held itself out as prepared (1) to transport in commerce goods described in its tariff of any shipper through an area of Portland there described, from or to the place of business in said area from or to its facilities for line-haul transportation, whenever request or customary practice required acceptance at said plant or delivery to consignee at the plant, (2) to accept, receive and transport, as above described, such goods from such plant, where request or customary practice required, and (3) to deliver to consignee, at said plant in said area, goods which had been received for delivery under the tariff setting up such service. The Court expressly finds that each of the carrier defendants failed and refused, as to some shipments, to perform at least one of the obligations of the “holding out” above set forth. With few exceptions, each carrier had received some shipments of goods described in the tariff, for transportation in intrastate or interstate commerce from points ouside the Portland area, for delivery to Wards at its plant in the area, which it failed and refused to transport in commerce in said area and which it failed and refused to deliver to Wards at the plant in said area. Each carrier refused to transport goods for Wards in the Portland area. Each denied Wards access to the facilities of intrastate and interstate commerce for goods so described. Robertson, Terminal' Company and Railway Express each failed and refused to perform some of these duties. The refusals, failures, denials and repudiation were made by each line carrier through its agent, Robertson or Terminal Company, through its own employees on the ground in line of duty, and through the acquisescence of its executives. Each of the defendants, through the action of its respective authorized agents, employees in the course of employment, took joint action with another carrier in the violation of obligations owed from the latter to Wards, as above outlined. Each was then liable if damage ensued, unless some justification were established in defense. The Sherman Anti-Trust Act recognizes an action for conspiracy, but, of course, this is confined strictly by the terms of the statute. It need not be determined whether there was a civil action of conspiracy at common law. No inquiry will be made as to the existence under the law of the State of Oregon of a separate cause of action for a tort of conspiracy. Wards’ cause of action was based on neither theory. Persuading, counseling or assisting another in .breaching a peculiar duty of the latter alone laid the basis for an action at common law. So likewise, joint action in breaching such an obligation incumbent upon only one party gave rise to joint and several liability of all who participated. This Wards has relied upon and supported with proof as to each defendant. There are defenses upon the ground that, since these matters have been involved in other proceedings, re-litigation is prohibited here upon the principle of res adjudicata. There were suits against shipowners in which damages for the same, items here involved were pleaded. Some of these were dismissed by stipulation and some by judgment. But that only means that the particular shipowner was not liable. It does not prevent Wards from proving each or all defendants liable. The claim is also made that, although, upon petition of Wards to require twelve of the motor carriers, here defendants, to cease and desist from discrimination against Wards, the Interstate Commerce Commission made no order requiring action, but dismissed the complaints, the Court cannot give relief here. There are several answers. First, findings of an administrative body are not binding upon itself or this Court. Second, the strike had ceased and the carriers were fully serving the plant when the examiner’s finding in Wards’ favor was made and when the Commission reversed. Therefore, there was no jurisdiction since the proceeding was moot. Third, the only questions before the Commission involved labor relations, which were not within its competency. Finally, the Commission did not have the railroads before it and did not have authority to nor did it consider whether there was a combination of carriers and unions to isolate Wards from interstate commerce by denying it local transportation. The Court has considered all these questions, because they are properly raised and are relevant to this dispute. This Court has general jurisdiction. The administrative tribunal has only that special jurisdiction which is given to it by Act of Congress. There are no presumptions which attend its findings. It is not technically a court. The jurisdiction of the Commission to act or refuse to act was not established. Indeed, there was a complete absence of authority. The thesis of the Commission and the key of the defense here is that defendants were excused from serving Wards’ plant because there was a strike there, which none of the defendants caused. The facts are conceded, but these constitute neither defense nor excuse. The circumstances constituting the standard justifications which the common law recognized for failure to perform the obligations of a common carrier are not present here. The defendants were not prevented from transporting Wards’ goods by act of God. No outright public enemies stopped them. The defendants do not contend that the acts of labor leaders or labor organizations are the acts of public enemies, nor would the Court countenance such a claim. Here then we come to a full stop. The proof shows each defendant liable prima facie, and no defendant has established the only defenses permissible in an action of this type. The opinion might well end here. The defendants have, however, pressed upon us with earnestness and vigor certain excuses or alleged justification. While these are entirely irrelevant and immaterial under the law heretofore declared, consideration will now be given thereto. These excuses for failure to perform the rigid requirements placed upon carriers all have root in the field of labor relations. But neither labor unions nor labor leaders were brought into this suit as parties by either plaintiff or defendants. The railroads and motor operators have thus had the burden perforce of defending the whole union line. The carriers, however, are not setting up the assumed rights of labor for protection of their employees, but in their selfish interest to escape liability for their own conduct. The discussion which follows must be oriented in relation to the fact that, though based upon the record, the labor leaders and unions are not present in court to protect themselves. In considering the concerted activities of labor, it will be found that not all such action is legal. The objects of such concerted activities may be improper even when labor organizations and their members alone are involved. Secondly, the means employed may be proscribed by law. Thirdly, there is no immunity for the sympathetic strike by organizations and individuals with no unity of interest in the original controversy. Again, although unions and their members might with impunity take certain action, if they succeeded in getting employers engaged in business to use their economic power by combination with the unions and the leaders to accomplish unlawful objectives by unlawful means, no one would be immune. Finally, common carriers, who have duties to the public which are binding upon them by law and are also binding upon employees of such carriers, cannot be coerced into nor can they voluntarily join in concert of action which results in a violation of these obligations without being liable to respond criminally and civilly therefor. While “workers are privileged intentionally to cause harm to another by concerted action if the object and the means of their concerted action are proper; they are subject to liability to the other for harm so caused if either the object or the means of their concerted action is improper.” Judged by this standard, the workers who took concerted action here would, upon this record, be liable themselves, because, not only were the objects illegal, but the means employed were also improper. The ultimate object was to cut Wards off from access to the facilities of commerce by causing common carriers to violate duties imposed by law, to deprive it of all transportation in the area and to accomplish the ruin of its business by organizing the business community against it. These objectives were to be accomplished by illegal means. Violence and threats of violence' enforced by memories of violence used by the same organizations were to be employed to regiment the business community in these objects, Pickets in front of transport depots, walk-outs of transportation employees, secondary boycotts of common carriers to compel them to make common cause were illegal. In many other particulars, the concert of action was illegal, as will be pointed out hereafter. When such objectives, through such means, were to be accomplished by a combination of the primary strikers with workers who were employed in the transportation industry and who had no unity of interest with the primary employer or employees, the illegality of the procedings is clear in the first instance. It is thus seen that the combination of the unions and transport employees with the purpose of coercing the carriers was illegal in objectives and means. But the carriers joined in the concert of action also to protect their own economic interest. This circumstance alone deprived the combination of legality even if it should be assumed that the object and the means were proper for a concert of workers. The cooperation of the carriers in itself rendered the scheme unlawful as to all parties. The rail carriers took joint action among themselves. The motor carriers acted together. Each took action in concert to cut Wards off from interstate trans-P01'tati°"’. which & was its duty to fur' was a conspiracy in restraint trade, denounced by the statutes. To ^is charge, it is possible the workers may have had some lawful answer, but carriers had none. As to defendants, the objects were illegal, and so were the means. More important for this case, this action in concert deprived the carriers of all defenses. For defendants could not urge that action in which each had a part was an excuse for failure to transport. A concert of action between carriers, such as there was here, to discriminate against a single shipper, is action in restraint of trade. The circumstance that labor leaders or unions may have initiated or encouraged the combination makes no difference. For Wards’ difficulties were local and confined to its own area, while the obligations of the carriers were to the public, which suffered if every shipper and consignee were not served on equal terms. There would have been no drastic interference with commerce if there had not been an unlawful conspiracy against Wards of which each defendant became a member. It does not require a written document or an express contract to indicate the adherence of a party to a combination of two or more to accomplish an unlawful purpose. Nor need one be the author of the design or one of the original parties to the formulation thereof. In this case, the plan apparently originated in the minds of the labor leaders. It is sufficient if a person, after a conspiracy has been formulated by others and he has full knowledge of the purpose, willfully takes action in furtherance of the design. The concert of action effectuating the purpose is sufficient to establish adherence to the conspiracy. Each of the defendants, through its employees on the ground in the course of employment and by the acquiescence of its executives, was committed to the concert of action by acts calculated to accomplish the unlawful purposes of which each well knew. The union of motor transport drivers, which had closed shop contracts with all motor carriers, and its members could not lawfully require a boycott of carriage of goods by such carriers, even though they were affiliated with unions of Wards’ merchandizing and warehousing employees through the higher echelons. The unions of rail employees and their members were clearly outside the pale since