Atchison, T. & SF Ry. Co. v. White

• Decision Date: 22 April 1943
• Docket Number: No. 2384-BH.,2384-BH.
• Citation: 49 F. Supp. 797
• Court: U.S. District Court — Southern District of California
• Parties: ATCHISON, T. & S. F. RY. CO. v. WHITE.

49 F. Supp. 797

ATCHISON, T. & S. F. RY. CO. v. WHITE.

No. 2384-BH.

District Court, S. D. California, Central Division.

April 22, 1943.

Jonathan C. Gibson, M. W. Reed, L. W. Butterfield, and William F. Brooks, all of Los Angeles, Cal., for plaintiff.

Arthur H. Glanz and Theodore W. Russell, both of Los Angeles, Cal., for defendant.

HARRISON, District Judge.

This action was instituted by plaintiff against defendant to recover undercharges on 118 separate carload shipments made by defendant during the period of August, 1939, to February, 1941, which charges plaintiff contends must be collected in accordance with the lawfully published tariffs then in effect.

Like in the case of Atchison, Topeka and Santa Fe Railway Company v. Judson Freight Forwarding Company, etc., D.C., 49 F.Supp. 789, this day decided by me, the question for determination is whether the shipper should have been billed for two forty-foot cars on each shipment instead of one fifty-foot car. Originally, the shipper was billed on the theory that in each instance a fifty-foot car had been ordered and that two forty-foot cars had been furnished at carrier's convenience under what is commonly known as the two for one rule. Thereafter, the carrier determined, after an investigation by the Interstate Commerce Commission, that the lawful tariff on each shipment had not been collected, hence this suit.

The parties have stipulated that the higher freight charges claimed by plaintiff in each cause of action are lawfully applicable in the event the court shall find that two smaller cars were not lawfully substituted for a larger car ordered by the defendant in compliance with the tariff rules and regulations governing the substitution of two smaller cars for a larger one.

The facts disclose that all shipments went forward under Item 503 of Trans-Continental Freight Bureau East Bound Tariff No. 3, Series I.C.C. No. 1431, which in part provides:

"Except where specifically provided to the contrary in individual items of this tariff, carrier will furnish car of dimensions or weight carrying capacity ordered by shipper, but if carrier for its convenience furnishes car of different dimensions or weight carrying capacity, the following rules will govern. * * *

"When car of smaller dimensions or less weight carrying capacity is furnished, actual weight applies provided it is loaded to its full visible capacity or as heavily as loading conditions will permit; the balance of the shipment will be taken in another car at actual weight and carload rate, and the entire shipment will be subject to carload minimum weight applicable to the car of dimensions or weight carrying capacity ordered (Subject to Notes 1 and 2). * * *"

The facts surrounding the circumstances under which the forty foot cars were furnished are best reflected by the testimony of the defendant, who in substance testified as follows:

He had been engaged in the freight forwarding business for about twenty-five years and had wide experience in the freight forwarding business, was and is generally familiar with the published tariffs, rates, rules and regulations. In April, 1937, he started his own freight forwarding business in Los Angeles at a location adjacent to the Wingfoot Station of carrier. He specialized in eastbound freight consisting principally of heavy machinery and automobile parts. Shortly after commencing business, in April or May, 1937, he talked to the agent of the carrier and made inquiry into the method of the operations of his competitors. The agent not being informed made inquiry and advised the shipper that the National Carloading Corporation was shipping under the so-called two for one rule. The shipper then asked if it "would be o.k. or satisfactory, under the tariff, if we could use the same loading rules as the other companies". He stated he was familiar with Item 503 and that the rules and regulations on loading equipment had to be followed and "that's why I wasn't going to do anything, or take any advantage of any misinterpretation of the tariff. Before we started loading the forty foot cars I wanted to be sure the tariff authority was there". The agent of the carrier assured the shipper he could have two forty-foot cars in place of the fifty-foot car ordered and that the same would not be in violation of the published tariffs.

Thereafter, the shipper would usually order cars by telephone. When ordering cars, he would not specify the equipment, but simply advise the carrier "we want to load today". Thereupon two forty-foot cars would be furnished. The shipper would prepare his own bill of lading and endorse thereon "1-50 foot car ordered; 2 smaller cars furnished by R.R."

In February, 1941, the carrier discontinued the practice of furnishing two forty-foot cars in lieu of one fifty-foot car. The shipper vigorously protested the change and contended the tariff provisions had not been violated.

From the foregoing testimony of the shipper the following facts appear: That the shipper was familiar with the provisions of Item 503; that the shipper at no time ordered a fifty-foot car; that the shipper was furnished two forty-foot cars but was billed on the basis that one fifty-foot car had been ordered, in accordance with an agreement between the parties; that the shipper knew when he advised the carrier he was ready to load that he would be furnished two forty-foot cars; that the shipper acted in good faith and relied upon the representations of the agent of the carrier that the furnishing of two forty-foot cars in lieu of one fifty-foot car was not a violation of the published tariff provisions.

Shipper contended and offered evidence to the effect that carrier's convenience was subserved by the substitution of the smaller cars for the larger car. The evidence in this respect is conflicting. Suffice it to say that in the substitution of the smaller cars, no consideration was given to the carrier's convenience. Furthermore, it is not possible to visualize the exact conditions existing at the time of each shipment at this late date. The evidence does disclose that at all times the carrier had fifty foot cars available and readily accessible.

It is further contended by the shipper that the substitution afforded him no advantage. The shipper wanted the smaller cars and was very vociferous when their use was denied him. These facts, coupled with the knowledge that he thereby had considerable additional floor space for loading, convinced me that the shipper gained an advantage and preferential treatment by the carrier.

It will be noted under Item 503, that the shipper is entitled to the equipment ordered and the carrier must comply with the order of the shipper and can only substitute other equipment for its own convenience. Under no circumstances would "carriers' convenience" come into play until an order had been placed for specified equipment. See Western Trunk Line Rate Increases, 43 I.C.C. 481-493; Noble v. Baltimore & Ohio Railroad Company, 22 I.C.C. 432. If no order for specified equipment had been placed then the shipper would be liable for equipment furnished by carrier and used by shipper.

Under the testimony of the shipper it is apparent that no order was placed for specified type of equipment and as a result there would be no legal grounds upon which the shipper would be entitled to the benefits of said Item 503.

Shipper contends that the smaller cars were furnished for carrier's convenience. Shipper offered evidence to the effect that carrier's convenience not...