Opinion
33849.
DECIDED MAY 7, 1952.
Complaint; from Richmond Superior Court — Judge Kennedy. September 21, 1951.
Joseph B. Cumming, for plaintiff.
Fulcher Fulcher, for defendant.
The verdict was demanded as a matter of law for the reasons stated in the opinion, and the court did not err in denying the motion for a new trial.
DECIDED MAY 7, 1952.
Charleston Western Carolina Railway Company, a common carrier, brought an action against Merry Brothers Brick Tile Company, a manufacturer and shipper of brick, for an alleged unpaid balance of freight charges on certain shipments of brick, which had been made in interstate commerce and which were subject to freight rates based on a valid published tariff. The various shipments of brick were itemized in an exhibit to the petition, which showed the waybill number, date of shipment, destination, weight, rate at which shipment was made, total charge for each individual shipment, rate at which it is alleged the shipment should have been made, and total charge which it is alleged should have been made for each individual shipment. The difference between the charges made for shipments and the charges which it is alleged should have been made is $2281.37, the sum alleged to be due and unpaid.
On the trial of the case, the parties conceded that the tariff introduced in evidence was the one applicable. Samples of each of the five types or shapes of brick which had been included in the shipments in controversy were introduced in evidence. According to the defendant's catalogue specifications, all of these brick types or shapes were "Perforated radial chimney brick." The major controversy resolved itself into the question, which of the two brick classifications, designations, or descriptions used in the tariff, is applicable to shipments of the types or shapes of brick involved. The defendant contended that the designation or description to be found in Item 3400 of the tariff, to which the lower rate is applicable, and at which the shipments were made, is applicable; and the plaintiff contended that the designation or description to be found in Item 3300 of the tariff, which takes the higher rate claimed, is applicable. The jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial, based on the usual general grounds and five special grounds, was denied and it excepted.
1. "Tariffs, like statutes, have the force of law; like statutes, they must be expressed in clear and plain terms, so that those dealing with and governed by them may understand them and act advisedly. Swift v. U.S. (C.C.A.) 255 F. 291. They may not be contrived in catchpenny terms to catch the ignorant and unwary. If they are ambiguous, or permit of two meanings the shipper may construe them in the most favorable way to himself which the terms permit. Southern Pac. v. Lothrop (C. C. A.) 15 F.2d 486; American Ry. Express Co. v. Price Bros. (C.C.A.) 54 F.2d 67; United States v. Gulf Ref. Co., 268 U.S. 543, 45 S. Ct. 597, 69 L. Ed. 1082." Atlantic Coast Line R. Co. v. Atlantic Bridge Co., 57 Fed. 2d, 654.
"Rate schedules are required to be published by posting, are for the information and use of the general public, and generally the words used in them are to have their common meaning. Newton Gum Co. v. C. B. Q. R. R. Co., 16 I. C. C. 346; . . where the commodity shipped is included in more than one tariff designation, that which is more specific will be held applicable; and where two tariff descriptions are equally appropriate the shipper is entitled to the lower rate." American Ry. Express Co. v. Price Bros., 54 Fed. 2d, 67; United States v. Gulf Refining Co., 268 U.S. 542, 45 Sup. Ct. 597, 69 L. ed. 1082.
The applicable provisions of Item 3300 of the tariff are as follows:
"Brick and Related Articles, CL [meaning carload], Viz: Articles made of clay, concrete, gypsum, plaster or shale (except as otherwise indicated), in straight or mixed CL (unless otherwise indicated), min. wt. 50,000 lbs., CL, viz:
"Brick, viz:
Broken, crushed or ground
Building (solid, hollow or perforated), not enameled or glazed except as provided for below
Common, solid, or perforated, with total aperture space not more than 40 per cent, made with concrete, clay or shale (see Note 1 below), mixed with other articles in this item). (For rates on brick, common, in straight carloads, see Item 3310)
Facing (solid, hollow or perforated), not enameled or glazed except as provided for below
Fire, including fire brick made of chrome, corundite, magnesite or silica (see Note 6 below)
Furnace Paving, shale or fire clay Radial Salt glazed Sand Sand cement Sand lime
Zinc or lead glazed
Note 1 — Not applicable on any grades (firsts, seconds, thirds or culls) of:
Artificially colored brick Enameled brick
Facing brick (smooth surface brick selected for color or mechanical perfection or brick that is textured or sand finished to present a particular architectural appearance)
Fire brick Paving brick Refractory brick Salt glazed brick."
The provisions of Item 3400 are as follows:
"Brick, Common, CL, viz.: Brick, common, solid or perforated, with total aperture space not more than 40 per cent, made with concrete, clay, or shale (See Note 2, below), min. wt. 60,000 lbs. (see Note A, this item).
Brick, common, solid or perforated, with total aperture space not more than 40 per cent, made with concrete, clay or shale (see Note 3 below), when not braced or wedged or packed in or loaded with straw or other material, for protection against rubbing, breaking of chipping; carload min. wt. 60,000 lbs.
Note A — Common brick may be shipped in mixed carloads with articles named in Items 3300, 3395 and 3465, each commodity contained in the mixture to be charged for at the carload rate provided thereon at actual weight, provided that the total freight charge on the entire shipment shall not be less than that accruing on basis of rate applicable on the highest rated commodity, in the mixture at min. wt. of 50,000 lbs."
Note 2 of this Item is identical with Note 1 of Item 3300.
Note 3 of Item 3400 is as follows:
"Will not apply on any grades (firsts, seconds, thirds, or culls) of:
Artificially colored brick Enameled brick
Facing brick, when braced, wedged, or packed in or loaded with straw or other material, for protection against rubbing, breaking or chipping
Fire brick Paving brick Refractory brick Salt glazed brick."
By virtue of a circled 4 reference in Rate Table for rates on Item 3300, it is provided that where rates are found in Item 3400, the Item 3300 rate shall not apply.
Item 3400 is a common-brick classification alone; no other designation is included therein, and all common brick would seem to come within that classification which are not specifically excepted. Item 3300 also contains a common-brick classification, which is almost identical with the Item 3400 classification. Under the uncontradicted evidence of the ingredients used in their manufacture and the method of manufacture, the bricks which were contained in the shipments here in controversy were common brick; and, nothing more appearing, the common-brick designation in Item 3300 and Item 3400 are equally applicable to the bricks shipped; and, under such circumstances, the lower rate applicable to Item 3400 would obtain under authority of American Ry. Express Co. v. Price Bros., supra.
If it be insisted that, by reason of the designation "radial" contained in Item 3300, and the defendant's concession that the brick in question were radial-shaped brick, Item 3300 should apply, because of this more specific designation (the specific being controlling over the general), then it is to be observed that the brick in question conform to the specification only if the designation "radial" is descriptive of the shape of the brick (radial brick being "brick with tapering sides to form a circular wall such as that of a chimney or tower," Webster's New International Dictionary, Second Edition, Unabridged, 1951 printing, p. 2050); but a shape designation in the Item 3300 classification is anomalous. All other designations in the particular group with which we are concerned in Item 3300 are bricks designated on the basis of their physio-chemical properties rather than on the basis of shape. In order for radial brick to be ejusdem generis with the other designations, the radial brick intended to be included in this classification should be of the same general physio-chemical properties as the other brick. If this is not the intention, then this item of the tariff becomes ambiguous and must be construed in favor of the shipper. Atlantic Coast Line R. Co. v. Atlantic Bridge Co., supra. If the radial brick intended to be included in this classification are those of the same general physio-chemical properties as the other brick designated, then under the uncontradicted evidence, the brick included in the shipments here in controversy are not of that class; they possess none of those properties.
It follows from what has been said herein that, in spite of the admission of the testimony as to former rates charged and practices followed, which could in no wise affect the question of the applicable rate imposed by the Interstate Commerce Commission, which must be applied without favor or variance to all shippers, the verdict for the defendant was demanded as a matter of law, and none of the alleged errors in the court's charge need be considered.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.