Crancer v. Lowden
| Decision Date | 30 June 1941 |
| Docket Number | No. 11859.,11859. |
| Citation | 121 F.2d 645 |
| Parties | CRANCER et al. v. LOWDEN et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
Irl B. Rosenblum, of St. Louis, Mo. (Bernard Mellitz and Clyde W. Wagner, both of St. Louis, Mo., on the brief), for appellants.
Hale Houts, of Kansas City, Mo. (William O. Reeder, of St. Louis, Mo., and William S. Hogsett, of Kansas City, Mo., on the brief), for appellees.
Before GARDNER and JOHNSEN, Circuit Judges, and COLLET, District Judge.
This appeal is from a judgment in favor of the trustees of the Chicago, Rock Island and Pacific Railroad Company, and against appellants Lester A. Crancer and George B. Fleischman, co-partners doing business under the firm names of Valley Steel Products Company and the Mid-Valley Steel Company respectively, for shipping charges on steel pipe thread protectors. The case was tried without a jury. At the conclusion of the trial the Court made findings of fact and stated conclusions of law, in writing, and entered judgment in favor of appellees for the sum of $2,263.47.
The present controversy involves the proper classification of the commodity under the existing tariffs. The shipments, seven carloads, moved from points in Montana, Texas, California and Louisiana where appellants had billed the cars to themselves at St. Louis, Missouri. The billings classified the contents of the cars as "scrap iron" and the tariff charge applicable to that classification was paid. When the shipments arrived at St. Louis, appellees' rate clerk requested the Western Weighing and Inspection Bureau to inspect the contents of the cars. That inspection resulted in a rating of the shipments as pipe fittings. The classification "pipe fittings" included thread or pipe protector rings. The tariff rate on scrap iron being less than the rate on pipe thread protector rings, demand was made upon appellants for the difference on the tariff. Refusal to comply with that demand resulted in this action.
The grounds upon which appellants seek a reversal are:
1. That the greater weight of the evidence failed to show that the shipments were other than scrap iron having a market or commercial value for remelting purposes only.
2. "That the Court erred in rendering judgment in favor of plaintiffs and against the defendants for additional freight charges on the articles shipped in that said judgment was based upon the use to which said articles were put by the defendants after they had received them from the railroad carriers."
3. That improper evidence of the market value of the pipe protectors was received.
4. That the Court improperly admitted in evidence an opinion of the Interstate Commerce Commission.
5. That the Court should not have proceeded with the trial until a complaint case pending before the Interstate Commerce Commission was determined.
Those questions will be considered in the order stated.
The commodity in question, referred to in various terms such as "pipe protectors", "pipe fittings", "pipe thread protectors", "protecting rings", were found by the trial court to be used "iron pipe thread protecting rings". These articles are used to protect the threads and the ends of pipe from injury in handling or shipment. Appellants are engaged in the business of purchasing the used articles, repairing and reselling them. All of the shipments were of the used articles which were being sent to appellants' plant at St. Louis. The repairing or reconditioning process consisted in a general way in a patented process of straightening those which were not too badly damaged and refinishing the threads. The remainder were useless except for remelting. One of the appellants, testifying on direct examination, indicated that approximately ninety per cent of the articles contained in these shipments could possibly be repaired for use. On cross-examination he stated that approximately sixty per cent were repaired and the remaining forty per cent discarded for remelting. There was other evidence to the same effect. The articles were shipped in open coal cars. The good and bad were commingled, were loose in the cars, and none were bound or tied together in any way. The tariff contained a provision that when a number of different articles were commingled in a car all should take the rating of the highest classed or rated article in the car.1 The re-classification was based upon the following item of the tariff: "Pipe Fittings: — rings, thread protecting, iron, in packages." Appellants' proof tended to show that the thread protecting rings were made of steel. It is their contention that therefore the commodity did not fall within the classification of "iron" pipe thread protecting rings. Numerous metal objects were elsewhere classified under the heading "Iron or Steel." That heading does not appear above the item "Pipe Fittings" quoted above. There is, however, a tariff provision as follows: "Unless the contrary appears, the word `iron' wherever used in this classification includes, also, steel; and vice-versa." Another provision of the tariff provided for a ten per cent penalty for shipment of articles such as these loose or uncrated and not in packages. There was no difference in tariff rates on new and on used pipe protecting rings.
The classification relating to scrap iron provided that it should apply only to iron or steel having value for remelting purposes only.2 At another place in the tariff scrap iron is referred to as follows:
"Iron or Steel. —
Scrap, not copper clad, see Note 9: In packages, or in pieces weighing each 50 lbs. or over, loose, L.C.L.
C.L. min. wt. 40,000 lbs., Rule 24 not to apply
Note 9 — Ratings apply on scraps or pieces having value for re-melting purposes only."
As heretofore noted the shipments here involved were not in packages. Neither did the articles weigh 50 pounds or over.
The trial court found that the shipments were not of scrap iron or steel possessing value only for remelting purposes, but were of used "iron pipe thread protecting rings". This finding is assailed upon several grounds.
The contention that the articles were steel and not iron is answered by the tariff provision heretofore quoted providing that unless the contrary appears the word "iron" will include "steel" and vice versa. It is argued that the contrary is made to appear by the fact that numerous other metal objects are classified under the heading "Iron or Steel", which does not appear above the item "Pipe Fittings" and that therefore the use of the word "Steel" in some instances and its absence in the item "Pipe Fittings" indicates that steel articles should not be included in the latter item.
The doctrine expressio unius est exclusio alterius is not one of universal application, but is to be applied only as an aid in arriving at intention and should not be followed to the extent of overriding a different intent. Bland v. Commissioner of Internal Revenue, 7 Cir., 102 F.2d 157; United States v. Barnes, 222 U.S. 513, 32 S.Ct. 117, 56 L.Ed. 291. The intent is reasonably clear that the word iron included articles made of steel.
The argument is advanced that the finding should be set aside because there was no proof that the articles had a market or commercial value for any purpose other than for remelting. Appellants' evidence showed that these seven and a great many more carloads of pipe thread protectors were purchased by them for reconditioning purposes. There was substantial evidence that a fairly well established price existed for used pipe thread protectors in the territory where they were available. The finding was not clearly erroneous and hence it may not be set aside. Rule 52 (a), Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Borserine v. Maryland Casualty Co., 8 Cir., 112 F.2d 409.
It is further contended that the finding that the pipe thread protectors did not possess a commercial or market value for...
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