Green Mountain Log Co. v. Columbia & N.R.R.R.

• Decision Date: 27 March 1934
• Citation: 30 P.2d 1047,146 Or. 461
• Parties: GREEN MOUNTAIN LOG CO. v. COLUMBIA & NEHALEM RIVER R. R.
• Court: Oregon Supreme Court

30 P.2d 1047

146 Or. 461

GREEN MOUNTAIN LOG CO. v. COLUMBIA & NEHALEM RIVER R. R.

Supreme Court of Oregon

March 27, 1934

Department No. 2.

Appeal from Circuit Court, Columbia County; Howard K. Zimmerman Judge.

Action in the nature of an action for money had and received, by the Green Mountain Log Company against the Columbia & Nehalem River Railroad for an overcharge of freight rates covering plaintiff's logs hauled over the logging road of defendant between the town of Buster and the Columbia, River Slough, at Kerry, Or., a distance of thirty-one miles. Verdict and judgment for defendant, and plaintiff appeals.

Affirmed.

Hugh Montgomery, of San Francisco, Cal. (Albert B Ridgway, of Portland, on the brief), for appellant.

Harry B. Beckett, of Portland (Wilbur, Beckett, Howell & Oppenheimer and R. K. Powell, all of Portland, on the brief), for respondent.

BEAN Justice.

The case was once before appealed to this court and reported in 141 Or. 188, 16 P.2d 1106, where a detailed statement of the facts and issues is found. The decision of a question on a former appeal is the law of the case on a subsequent appeal in the same case. Powell v. D., S. & G. R. R. Co., 14 Or. 22, 12 P. 83; William Hanley Co. v. Combs, 60 Or. 609, 119 P. 333; Douglas v. Rumelin, 130 Or. 375, 280 P. 329.

Shipments of logs were made by plaintiff between February 28, 1924, and June 1, 1925, and moved under tariff rate published by the defendant railroad, requiring the shipper to pay $3.25 per thousand feet of logs transported "based on Spaulding scale."

Plaintiff contends that the railroad company erroneously applied the tariff rate for these shipments and seeks to recover the difference between what it paid and what the charges should have been under the proper interpretation of the rate as published. The controversy pertains to the measurement of the logs and application of the Spaulding scale. The plaintiff alleges that an improper measurement was made, contrary to the correct interpretation of the tariff provisions which defendant filed with the public service commissioner; that the bills rendered should have been computed by using the Spaulding scale as a base in accordance with the definite and long established usage in Columbia county, Or., well known to defendant, that is, with an allowance for hollow, rot, decay, and other defective portions, so that the bills rendered would have been for the so-called "full" scale of cull logs in the raft and for the merchantable portions only of the merchantable logs in the raft.

The defendant denies the allegations of overcharges and alleges and asserts that under the tariff referred to in the plaintiff's complaint, filed with the public service commissioner of Oregon, during all the time plaintiff was shipping logs over defendant's railroad, it was the general custom and practice of the defendant and other railroads operating in western Oregon and the lower Columbia river district in Oregon to base its and their tariff charges on logs at so much per thousand feet of logs transported, that is, with a deduction of "hollow butts" and "rotten sap," according to the "freight scale," and that the charges made by defendant and paid by plaintiff were based upon said freight scale; that such general custom and practice of the defendant and other railroads was at all times well known to the plaintiff; that all of plaintiff's logs were fairly and correctly scaled by defendant in the usual and customary manner for the ascertainment of the proper amount of freight to be charged the plaintiff therefor.

There are 158 causes of action stated in plaintiff's complaint, each constituting a separate shipment. Plaintiff claims overcharges amounting in the aggregate to $19,000. It is agreed that if the logs were measured and the charges were based upon the Spaulding scale, applying the so-called "commercial scale," instead of in accordance with the "freight scale" as applied by defendant, there would have been a difference and that the computation under the commercial scale would have amounted to the sum claimed by plaintiff. The gist of the stipulation is as follows:

"In other words, there is no disputing the allegation as to the figures; the dispute relates to whether or not the correct set of figures was used; that is the dispute relates to which set of figures should have been applied to the plaintiff's logs."

The manner of figuring the rates is set forth in plaintiff's complaint, as to one cause of action, and the figures are agreed to be correct.

The main issue raised in the case by the plaintiff's complaint and defendant's answer is, What was the prevailing custom or usage of measuring logs in the lower Columbia district at the time of the several shipments made by plaintiff? The court, by appropriate instructions, submitted this question to the jury as to what was the custom or usage in the Columbia river district relative to the method of scaling logs for freight charge purposes. It was the function of the jury to say what custom prevailed at the time and place mentioned. 27 R. C. L. 196, § 41; 17 C.J. 525, § 94; Green Mt. Log Co. v. Columbia & Nehalem River R. R., supra; McCulsky v. Klosterman, 20 Or. 108, 25 P. 366, 10 L. R. A. 785; Coast Fir Lumber Co. v. Parker, 106 Or. 641, 213 P. 617.

The court instructed the jury as follows:

"If you, the Jury, find from the evidence in this case that it was not the general custom in the locality in which the Defendant's railroad company operated to interpret the tariff provision involved herein as a so called freight scale differing from a commercial or buyer's and seller's scale, then you are instructed that the finding must be for the Plaintiff upon this issue relating to custom."

The court, after stating the claims of the respective parties, informed the jury: "Now which of those two types of measurements on logs was to be used is for you to determine. Each party asserts that it was the custom in the district involved to use the type of measurements which he is claiming should be used."

From plaintiff's requested instruction No. 5, it appears that such instruction is in harmony with plaintiff's theory of the case. We quote:

"There are the two interpretations of that expression 'Spalding scale' which the parties are relying upon and it is for you ladies and gentlemen to determine what is the customary and general interpretation of that expression 'Spalding scale,' so far as it was applied to the shipping industry of logs on the lower Columbia River District at the time involved in this controversy."

There was evidence adduced strongly tending to show that the prevailing custom or usage of measuring logs was according to the freight scale for the purpose of basing freight charges for transportation on the railroads in the district where the transactions occurred. The Spalding scale is a compilation or table of figures to apply to the measurement of logs, that is, the length and diameter inside the bark, if any, at the smaller end of the log, so as to ascertain the board feet content of the logs after the scale is made. The jury found, in effect, that such custom or usage at said times and place in measuring logs was to apply the freight scale, which is sometimes called the "full" scale, apparently for the purpose of approximating the weight of the logs shipped for freight purposes.

In consonance with the former opinion in the case, the court placed upon the defendant railroad company the burden of proving the usage under which the charges were made and charged the jury that any reasonable doubt in regard to the tariff rates should be resolved in favor of the plaintiff shipper and against the defendant railroad company. Green Mountain Log Co. v. Columbia & Nehalem River R. R. Co., supra; Northern Pac. Ry. Co. v. Sauk River Lbr. Co., 160 Wash. 691, 295 P. 926.

On the proposition that the plaintiff was entitled to have reasonable doubts relative to the tariff resolved in its favor, the court instructed the jury as follows:

"You are instructed that if there is ambiguity in the tariff, it should be construed against the railroad company, but while doubts as to the meaning of a tariff must be resolved in favor of the shipper and against the carrier which compiled it the doubt must be a reasonable one."

Counsel for plaintiff on cross-examination of the witness R. A Smith, who was called as an expert, directed attention to the published tariff of the defendant railroad company, particularly to the language: "minimum six thousand board feet based on Spaulding scale," and asked if with that language alone in front of a person they could determine just exactly what it meant. Defendant objected, as calling for a conclusion of the witness, and the court sustained the objection, for the reason that it is alleged in the complaint that the bill rendered should have been computed by using the Spaulding scale as the base "in accordance with a definite and long established usage in Columbia County." Plaintiff then moved the court to change the language of the complaint in this respect, "in accordance with a definite and long established practice," thereby substituting the word "practice" for "usage" in order to show the theory of plaintiff's case. The court denied the request for the reason that the change would be inconsistent with and contrary to the original complaint and a departure, whereupon counsel asked for a continuance of the case, which the court refused. The trial court said: "I cannot see any difference between the usage that was well known and well established in the county and a custom that prevailed in the county, the language means the same to me." Afterwards the plaintiff was permitted to inquire of Mr. Southerland, who was familiar...