Gimbel Bros., Inc. v. Barrett

• Decision Date: 29 December 1914
• Docket Number: 3140.
• Citation: 218 F. 880
• Parties: GIMBEL BROS., Inc., v. BARRETT.
• Court: U.S. District Court — Eastern District of Pennsylvania

218 F. 880

GIMBEL BROS., Inc., v. BARRETT.

No. 3140.

United States District Court, E.D. Pennsylvania.

December 29, 1914

Morton Z. Paul and Wm. A. Glasgow, Jr., both of Philadelphia, Pa for plaintiff.

John L Evans, Wm. B. Linn, and Thomas De Witt Cuyler, all of Philadelphia, Pa., for defendant.

DICKINSON District Judge.

This case was tried by the court without the intervention of a jury under the provisions of Revised Statutes, Secs. 647, 649. The case can be disposed of on special findings of fact and the conclusions of law to be drawn therefrom. The facts have been found and conclusions drawn, and are specifically stated. A few general findings are, however, necessary or at least helpful to an understanding of the special findings.

Discussion.

The plaintiff conducts a large department store business in the city of Philadelphia. The defendant does an express business. So far as affects this case, the dealings of the parties concern only shipments from New York City to the plaintiff in Philadelphia. We are also further concerned only with packages forwarded at the same time by different shippers to the plaintiff as consignee. The case still further narrowed concerns only the proper charges for the shipments thus made. It is, of course, obvious to any one that it would be impracticable for an express company to formulate a tariff of charges which would show a specific charge on every one of the different articles or kinds of traffic which are sent by express. The tariff as filed may be roughly characterized as showing a general merchandise rate, together with classifications of different kinds of merchandise. These are supplemented by rules in the nature of exceptions, provisions for special conditions and for special services or elements of risk. The general method or system of rate charges can be best expressed by an illustration of their practical application. In determining the charge to be made, the agent having learned the character or kind of shipment, would refer to the classification schedules. If the articles to be shipped were there found, this would determine the charge to be made. If the subject of the shipment was not there found, the charge to be made would be determined by the general merchandise rate. The merchandise rate, so far as affects this case, was 75 cents per 100 pounds. This was not, however, absolutely a proportionate rate, because it was modified by a graduated scale of charges according to weight, where the weight of the package was under 100 pounds. The apportionment of charges to packages of different weights was arbitrary, in the sense of packages of different weights not being charged proportionately to the respective weights. In consequence, a package of light weight might pay a rate per pound five or six times the proportionate rate paid by a package nine or ten pounds heavier. It was only when the package reached 100 pounds in weight that the 75-cent rate became applicable as an actual proportionate rate. Above 100 pounds the graduated scale did not apply, and packages really paid proportionately to their weight. Out of these conditions it is evident would arise this very practical situation. If goods were shipped to a consignee in ten 10-pound packages, he would pay the graduated charge on each package, which might amount to as much as $4. If they were shipped in one package, the express company would collect only 75 cents. If the packages were of a less weight, the disproportion might be even greater. It is further evident that such a condition afforded room and presented the promise of gain from a manipulation of the manner of shipments. Possibly because of this the express company incorporated in its system of charges the feature of what is called 'aggregating' weights. Expressed in a general way, the thought is that the express company will charge for a number of packages as if they had been bulked in one package. Thus was brought into being the rule with which we are concerned, which contains the added thought that it is to be applicable only when it results in a decreased charge.

Out of this rule has sprung one of the questions to be determined in this case. In addition to the merchandise tariff referred to, the company has also what is termed a commodities tariff. The general purpose of having a commodities tariff, in addition to or distinct from the merchandise tariff, is this: The business of express companies includes the shipment of some things which are cheaper in price and bulkier than other shipments. These cheaper and bulkier things would not stand a rate of charge which would not be undue for the more valuable and less bulky kind of merchandise. Out of this difference came the necessity for a commodities tariff. Usually the rate on commodities would be a lower rate than on merchandise, although this would not necessarily or in every instance be the result.

Rule No. 7 of the regulations of the Interstate Commerce Commission provides that where there is a commodity rate which is applicable to an article which is the subject of the shipment the commodity rate is to govern, and that the naming of a commodity rate on any article or 'character of traffic' takes such article or such traffic entirely out of the merchandise class, so that nothing in the tariff relating to merchandise is thereafter applicable to it. The commodities tariff contains a provision that the minimum charge on all classes of business between (among other localities) New York and Philadelphia is to be 75 cents per 100 pounds, the charges to be graduated according to the scale on shipments under 100 pounds. There is a further schedule of the commodities tariff which includes in the classifications 'all classes of business not rated higher than merchandise' between New York and Philadelphia, and these are put on a commodity rate of 75 cents per 100 pounds, subject to the graduated scale of charges on less than 100-pound weights.

This rough outline of the facts is sufficient to present the questions which are raised by the plaintiff's case and by the defense. The case for the plaintiff is in brief that the defendant by failing to apply, or at least to fully apply, the 'aggregating' rule, has overcharged the plaintiff. To make an inquiry into all the shipments and the charges made therefor, in order to determine in what instances an overcharge had been made, and, if any, the amount, would be a task of some magnitude. To save us the labor involved in this, counsel (and for this they are to be commended) agreed to take the transactions of certain dates to illustrate the whole course of the dealings between the parties, and further agreed upon the amount of the overcharges on the shipments of the typical day and on the total shipments based upon the proposition that the plaintiff's construction of the aggregating rule was the correct one. It was further agreed that all the shipments made by the plaintiff were shipments of merchandise, and were all merchandise to which a rate of 75 cents per 100 pounds, subject to the graduated scale of charges on all shipments under 100 pounds applied. It was further agreed that an aggregating rule, such as rule 9 hereinafter quoted, was in force as to all shipments of merchandise during the time of the shipments involved in this case. The real issues between the parties were and are that the plaintiff claims that the proper charges should have been determined in accordance with the merchandise rate, including the aggregating rule feature as herein later discussed.

There are three defensive positions taken. One is a denial that the plaintiff's construction of the aggregating rule is the correct one. Another is that these shipments, although primarily merchandise, and, if there had been no commodities tariff, would have moved under the merchandise rate, had been withdrawn from the merchandise class to the commodities class, and in consequence the proper charge was to be determined, not by the merchandise rate, but by the commodities rates and the tariff provisions relating thereto. The third is that the questions raised here are properly to be determined, not by a resort to the courts, but by an application to the Interstate Commerce Commission.

An examination of the shipments made on April 25, 1908, which was agreed to be a typical day, disclosed that the express company collected a certain sum. This amount was arrived at by charging on the packages less than 100 pounds in weight the graduate scale charge and for those of 100 pounds or more at the rate of 75 cents per 100 pounds. The plaintiff was not given the benefit of the reduced charge which would have resulted from bulking a number of packages and charging as for one package, except in those instances in which the packages came from the same shipper. The plaintiff contends that the 'aggregating' should not have been limited to packages all of which came from the same shipper, but should have been extended to packages from different shippers. Furthermore, all the packages should not be aggregated, unless the consequence was to lower the charge. If the result of aggregating all was not to reduce the charge, then such and so many must be selected and aggregated as would produce this lessened charge result.

The claim of the plaintiff rests for its foundation upon this 'aggregation' of shipments. This is provided for in clauses 'a' and 'b' of rule 9. These are as set forth in the special findings. Clause 'a' requires the actual weight of each package to be entered on the waybill, and further requires that packages forwarded by one shipper must be charged for on the aggregate weight. This is not the actual or absolute total weight, because packages under 20 pounds in weight are to be entered in the footing of...