C. E. Luttrell & Co. v. Southern Ry. Co.

• Decision Date: 02 May 1940
• Docket Number: 15074.
• Citation: 8 S.E.2d 753,193 S.C. 438
• Parties: C. E. LUTTRELL & CO. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

8 S.E.2d 753

193 S.C. 438

C. E. LUTTRELL & CO. v. SOUTHERN RY. CO.

No. 15074.

Supreme Court of South Carolina

May 2, 1940

Frank G. Tompkins, of Columbia, and W. B. McGowan, of Greenville for appellant.

Price & Poag, of Greenville, for respondent.

FISHBURNE Justice.

The Greenville County Court affirmed the judgment of a magistrate court for the plaintiff in seven separate cases. These cases rest substantially upon the same facts, and are controlled by the same principles of law. The case at bar is typical of the others, and, by agreement of counsel, the decision of this case will be determinative of the other six cases.

The litigation arises out of the following facts: The plaintiff a scrap iron dealer of Greenville, South Carolina, was quoted certain through rates by the defendant for the transportation of seven carloads of scrap iron, originating at various points in North and South Carolina, with the transit or stop-over privilege at Greenville for additional loading and transmission therefrom to ultimate points of destination in Alabama and Georgia. The quoted rates were in conformity with tariffs filed with the Interstate Commerce Commission, and promulgated as I. C. C. No. A-10650, and were less than the total of the separate shipment rates computed upon the basis of the tonnage moving from the points of origin to Greenville, the stop-over point, and from Greenville to the points of destination.

The pertinent parts of the tariff (No. A-10650) read as follows:

"Rule 13: (a) When cars are stopped to partially unload no freight may be loaded at stop-off points.

"(b) When cars are stopped to complete loading no freight may be unloaded at the stop-off points.

"(c) Should there be both a removal of articles and a loading of articles into the car at the stop-off point, the provisions of this tariff will not apply and the inbound shipment will be treated the same as if destined to the stop-off point, and the outbound shipment will be treated the same as if originating at the stop-off point, and charges assessed accordingly."

When the seven cars of scrap iron reached Greenville, partially loaded, the plaintiff temporarily removed therefrom certain portions of the original lading in each car for the purpose of re-arrangement so that the loading might be completed.

The scrap iron was shipped in open gondola cars which have a depth of about four feet, and at the points of origin the cars had been loaded in such a haphazard manner that the respondent found it impossible to complete the load at Greenville without a re-adjustment. At Greenville the respondent had on hand additional scrap iron which it wished to place on the cars, but it was unable to load this additional scrap iron on the cars without re-arranging the freight originally loaded therein. In order to make the loading more compact and to facilitate additional loading some of the scrap iron was taken out of each car, in variable quantities, and deposited on the ground adjacent to the cars from which it was removed. It was found necessary to cut certain larger pieces of the scrap iron by the use of a blow torch, in order to help forward the replacing. Every piece of the tonnage removed by the plaintiff was then replaced in the original cars from which it came, and by such arrangement the respondent was enabled to add in the aggregate 178,900 pounds of scrap iron to the loads originally in the seven cars.

The average rate on the various shipments was $3.11 per ton. By reason of the increased tonnage or additional loading at Greenville the defendant received the sum of $278.18, by way of additional freight charges.

The defendant offered no testimony in contradiction of the plaintiff as to the necessity of temporarily removing some of the scrap iron from the cars at Greenville, to facilitate a complete loading at that stop-off point. Nor did it offer any evidence to show that the identical tonnage was not replaced in the original cars from which it had been removed.

Claiming that the respondent had violated the provisions of Rule 13 hereinabove quoted, with reference to "loading" and "unloading", the defendant re-assessed the freight charges on the basis of separate shipments, the difference between the original charges and the charges later assessed being the amount in controversy in this action. The plaintiff paid the charges as re-assessed, and brought action in the magistrate court for recovery of such amounts so paid as over-charges.

The question for decision is, did the plaintiff violate the tariff prohibiting "unloading" by temporarily removing some of the scrap iron from the cars merely to adjust the loads so that it could "complete" the loading?

The decision of the question will turn upon a proper construction of Rule 13 of the applicable tariff schedule.

It seems to be settled that the interpretation of a written tariff stands upon no different footing from...