Barrett v. Gimbel Bros., Inc.

• Decision Date: 10 September 1915
• Docket Number: 1935.
• Citation: 226 F. 623
• Parties: BARRETT v. GIMBEL BROS., Inc.
• Court: U.S. Court of Appeals — Third Circuit

226 F. 623

BARRETT v. GIMBEL BROS., Inc.

No. 1935.

United States Court of Appeals, Third Circuit.

September 10, 1915

On Petition for Rehearing, October 26, 1915.

John L Evans, of Philadelphia, Pa., for plaintiff in error.

William A. Glasgow, Jr., of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

Gimbel Brothers, the plaintiff corporation, conducts a large department store business in the city of Philadelphia, and for a period of six years prior to the institution of this suit, received daily from the Adams Express Company many packages shipped from the city of New York. Commodities of different characters were shipped, as it is stipulated, under one rate known as the merchandise rate, which between New York and Philadelphia is 75 cents per 100 pounds. Many of the packages, however, weighed less than 100 pounds, and were shipped at rates controlled by their weights, not proportionate to but graduated with respect to the hundred pound rate and also with regard to the peculiar burdens and cost incident to handling small articles. These are termed graduated rates. A graduated rate for a 20 pound package, based upon a 75 cent merchandise rate, is 40 cents.

It is claimed by the plaintiff that it was over-charged upon the small articles expressed to it, because of the failure of the Express Company to observe one of its rules, which, by the plaintiff's interpretation, permitted two or more consignors to assemble or aggregate several packages, each weighing less than 100 pounds, into one package weighing 100 pounds, and ship the same as one 100 pound package, and which permitted a consignee, in calculating charges on several packages of varying weights forwarded by two or more consignors, to select the smaller ones and aggregate their weights into units of 100 pounds, whereby, in either instance, the consignor or the consignee, in paying express charges, would be required to pay only the merchandise rate based upon the 100 pound unit of transportation, instead of paying the relatively higher graduated rates charged upon fractions of the unit, resulting in a higher total of charges. This is called 'aggregation' or 'aggregating weight,' an example of which under Rule 9 (a) is that the plaintiff, by aggregating the weight of small packages to 100 pounds, would be required to pay but 75 cents for 100 pounds of several packages, instead of perhaps five times 40 cents, or five times the graduated rate upon each package of 20 pounds, the difference to Gimbel Brothers in such an instance being the difference between 75 cents for an aggregated hundred pounds, and $2.00 for 100 pounds separated into five packages.

This is not a full statement of what is claimed by the plaintiff under the rule, as a complete statement requires an interpretation of the rule, a recital and a consideration of a highly involved method of commodity classification and rate fixing, in detail and at a length too great to fulfill the present purpose of merely indicating the character of this controversy.

Whether the charges to the plaintiff upon its express business were made for proper amounts, that is, whether under the rule, the plaintiff could make its own selection of small packages for the purpose of aggregation, or was compelled to pay the graduated rates separately charged therefor, depends upon the interpretation of a rule respecting the aggregation of packages of different weights, each less than 100 pounds. The court must, therefore, first interpret the rule; second, determine whether the rule has been annulled by a Commodity Tariff; and third, whether the question presented in this case is one primarily or exclusively within the jurisdiction of the Interstate Commerce Commission, or is one which may be adjudicated by the District Court.

1. The record does not disclose the number or character of the articles consigned in New York and delivered to the plaintiff in Philadelphia. This is not important, for it is stipulated that the proper rate charged therefor was the 'merchandise rate.' Furthermore, a single day's transactions are in evidence and stipulated to be representative of the general character of the express transactions in controversy, which extended over a period of six years, and are treated as a specimen day's business. It embraces the shipment on one day of 35 packages from different consignors in New York and delivered at one time to the plaintiff consignee in Philadelphia. It shows the packages were of different weights, ranging from 4 pounds to 70 pounds, and the actual charges made and how the packages of different weights might have been aggregated, by which a lesser total charge could have been made. The actual charges made upon packages not aggregated but some of which might have been aggregated, amounted to $4.45, whereas if the packages susceptible of aggregation had been aggregated upon selection by the consignee, the charges would have been $3.33, indicating an over-charge of $1.12 for deliveries made upon the specimen day. There is a further stipulation that if charges for that amount are found to have been improperly made upon that day, then the overcharges made during the six years in controversy amount to the sum of $1,108.42, for which, together with interest from a certain date, judgment should be entered for the plaintiff.

Judgment was entered by the District Court in favor of the plaintiff for the amount stipulated, and in this judgment error is assigned.

It is necessary first to inquire how rates are fixed and how they may be ascertained.

The basis of all rates is a merchandise rate, known and published as the 'merchandise rate,' which is a fixed charge per 100 pounds between points of shipment and delivery. While the merchandise rate is charged upon certain classified articles, it is not the rate upon all articles of merchandise, nor is it a rate that has especial relation to any particular class of articles. It is, rather, a rate arbitrarily adopted as the key to rates charged upon all classes of articles shipped between different points, which when established may be fractionally above or below the merchandise rate or may be the same as the merchandise rate. The points of shipment and delivery in the matter in controversy are New York and Philadelphia. Therefore, inquiry is made as to what is the merchandise rate, that is, the basic rate, for the transportation of 100 pounds of anything between these two points. By reference to printed tables it is ascertained that the merchandise rate, namely the rate per 100 pounds between New York and Philadelphia, is 75 cents. But weight is not the only element which enters into a rate upon a given commodity. Its value, bulk, solidity or fragility, enter. That being so, the Express Company issues from time to time an Official Express Classification. This Official Classification embraces every article susceptible of transportation and states the rate therefor, either by specific mention or by force of Rule 8, which gives a rate to every article not specifically classified. From a consideration of the complex and involved method by which rates for different articles are determined, we are happily spared, for it is stipulated in this case that the articles which comprised the shipments upon which over-charges are claimed to have been made were of a class that carried the 'merchandise rate.'

Graduated rates are ascertained from a 'Table of Graduated Charges' published in the Official Classification, showing the rates for packages weighing from 1 to 100 pounds, with relation to a given merchandise rate. This table discloses that when the merchandise rate on a given commodity is 75 cents per 100 pounds, the graduated rate for a package weighing 1 pound is 25 cents, 5 pounds 35 cents, 10 pounds 40 cents, 20 pounds 40 cents, 50 pounds 60 cents, 61 to 100 pounds 75 cents. If a shipper delivers for transportation under a merchandise rate but one package weighing less than 100 pounds, and the merchandise rate between the points is 75 cents, he can ascertain from this table the precise rate for the package. But if one party in New York were to consign two or more packages to a party in Philadelphia, each package weighing less than 100 pounds, and therefore carrying separately a rate graduated to the merchandise rate, or if several parties in New York were to consign several packages to the same party in Philadelphia, each likewise weighing less than 100 pounds, and each therefore carrying a rate graduated to the standard merchandise rate, they are confronted by a rule of the Express Company, which in the first instance allows, and in the second instance, it is contended, also allows the consignor or consignors to combine their packages either by physically tying them together or, what is usual, by making a calculation of their weights from the way-bills and aggregating the same so as to bring the consignments within the weight of 100 pounds, to which the merchandise rate applies, and which thereby permits them to get the lower rate upon that aggregate weight, rather than to require them to pay the relatively higher separate rates on each of the articles consigned. This is the rule which is submitted in this case for interpretation, and the rule is as follows:

'9. Aggregating Weights.

'(a) Two or more packages forwarded by one shipper at the same time to one consignee at one local address, must be charged for on the aggregate weight, provided that any of the packages weighing less than 20 lbs. each shall be estimated and charged for as weighing 20 lbs. each and provided further that a lower charge is made by such aggregation. Actual weight of each package must be entered on the way-bill. See

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