Lowden v. Simonds-Shields-Lonsdale Grain Co.

• Decision Date: 05 July 1938
• Docket Number: No. 11047.,11047.
• Citation: 97 F.2d 816
• Parties: LOWDEN et al. v. SIMONDS-SHIELDS-LONSDALE GRAIN CO.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F.2d 816 (1938)

LOWDEN et al. v. SIMONDS-SHIELDS-LONSDALE GRAIN CO.^*

No. 11047.

Circuit Court of Appeals, Eighth Circuit.

July 5, 1938.

Dean Wood and Hale Houts, both of Kansas City, Mo. (Luther Burns, of Topeka, Kan., and Henry S. Conrad, Charles M. Miller, Cyrus Crane, and George J. Mersereau, all of Kansas City, Mo., on the brief), for appellants.

M. W. Borders, Jr., of Kansas City, Mo., for appellee.

Before STONE, WOODROUGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This was an action brought by the appellants, hereinafter called "plaintiff-carrier", against the defendant, hereinafter called the "shipper", to recover for services in installing certain grain doors on the box cars in which grain in bulk was shipped in interstate commerce by the shipper.

The Court below found in favor of the shipper, and from the judgment, this appeal was taken.

The facts were largely stipulated, and, with headings and signatures omitted, are set out in the margin.¹

Among them was a provision from a Freight Tariff, effective July 1, 1935. (See Exhibit "A" at the end of the stipulated facts). Said clause reads as follows:

"(1). Grain Doors or Lumber for necessary side door barricades (also for necessary end door barricades, if car is equipped with end doors requiring such protection) for carload shipments in bulk, of grain, grain products, seeds and other articles taking same rates, as specified in Lists Nos. 1, 2, 3, 4, 5, 6, Items Nos. 200 to 270, inclusive, will be furnished at loading stations without charge, by the initial roadhaul carrier. * * * The grain doors or lumber so furnished shall be installed by the shipper (or his agent) and at his expense. The railroad will act as shipper's agent and install grain doors at terminal elevator points specified below, at a charge of one dollar ($1.00) per car; prior arrangements for the service to be made with the carriers and to cover a specified period of time: * * *

"Kansas City......Mo.-Kan." Italics ours.

It is contended by the shipper that there was no prior arrangement made by it with the carrier.

It is contended by the carrier: First, that the shipper entered into a prior arrangement with the carrier; and, second, that the shipper waived the tariff provision requiring prior arrangement because of its acceptance of the carrier's service in installing grain doors.

The clause relied upon by the carrier is contained in a letter, dated July 2, 1935, from the shipper, and reads as follows See stipulated facts 4(a):

"Said undersigned parties further notify you that if ordinary box cars are furnished and supplied upon such orders they will expect them to be fully coopered or prepared with necessary side-door barricades completely installed and ready for loading."

This excerpt is taken from a letter written by the shipper to the local agents of the carriers. This excerpt gives rise to the principal questions in the case, viz.:

(1) Was there a prior arrangement between the plaintiff-carrier and the shipper relative to the service of installing the grain doors?

(2) Could such prior arrangement, if made, be waived by either party?

(3) Was there any waiver made or attempted by either party?

(4) Has the Interstate Commerce Commission exclusive jurisdiction to pass upon the question of existence of waiver?

Taking up the first question, we fail to find either in the findings of fact, conclusions of law, or in the transcript of evidence apart from these, anything which would support a finding of a "prior arrangement" between the parties. On the contrary, the correspondence found in the findings of fact makes it very clear that no such prior arrangement had been made.

The clause relied upon by plaintiff-carrier, above quoted, is immediately followed by three other clauses in the same letter which remove any doubt about a "prior arrangement" having been made, even if the clause above quoted were ambiguous, which we think is not the case.

The trial Court in its Memorandum uses the following language:

"Cars were furnished by plaintiffs to defendant in the number stated. The plaintiffs did install grain doors on these cars and billed the defendant at the rate of one dollar per car. Not only, however, were `no prior arrangements for the service' of installing the grain doors in question entered into by the plaintiffs and defendant, but the defendant positively and unequivocally refused to enter into such `arrangements.'"

The second and third questions may be treated together. They were so treated by the lower Court in its Memorandum. We quote the language used, even assuming that there was a prior arrangement.

"That the `prior arrangements' condition of this tariff is (1) for the benefit of the carrier and (2) may be waived by the carrier was ruled by the majority of the Interstate Commerce Commission in Board of Trade et al. vs. Railway Co., et al., decided April 12, 1937. The reasoning supporting the first of these conclusions is not set out in the report. It seems to us that the conclusion is entirely arbitrary and altogether unsound.

"The $1 charge is unreasonably high; the Interstate Commerce Commission so ruled in the case cited. The plaintiffs now admit that in no event should they have judgment at a higher rate than 60 cents per car. Plaintiffs concede that the real value of the services rendered is not more than 60 cents. How can it be said that it is not, in part at least, for the benefit of the shipper that he shall have the right of election between himself installing a grain door (a 60-cent job) and paying another $1 for doing that job. Again, how can it be said that a choice as to whether `the railroad will act as shipper's agent' vel non is of interest only to the railroad and of no interest whatever to the shipper?

"Not only do we not agree with the majority of the Interstate Commerce Commission in the case cited that the `prior arrangements' condition of the tariff is for the sole benefit of the carrier, but we agree with the minority of that Commission that in no event can such a condition in a tariff be waived by either party. Davis v. Henderson, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182." (19 F.Supp. page 439.)

We agree with this conclusion of the lower Court.

In the Henderson Case, supra, a shipper of cattle sued the Railroad for failure to furnish a car within a reasonable time after notice. The defense was that the notice had not been given in writing as required by the tariff. Oral notice had been given by plaintiff to the station agent and accepted by him. The Supreme Court in its opinion said:

"The contention is that the rule was waived. It could not be. The transportation service to be performed was that of common carrier under published tariffs. The rule was a part of the tariff. Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 197, 36 S.Ct. 541, 60 L.Ed. 948; Missouri, Kansas & Texas Ry. Co. v. Ward, 244 U.S. 383, 388, 37 S. Ct. 617, 61 L.Ed. 1213; Davis v. Cornwell, 264 U.S. 560, 562, 44 S.Ct. 410, 68 L.Ed. 848."

See also Van Dusen Harrington Co. v. Northern Pacific Ry. Co., 8 Cir., 32 F.2d 466, and Northern Pac. Ry. Co. v. Van Dusen Harrington Co., 8 Cir., 60 F.2d 394; American Railway Express Company v. American Trust Co., 7 Cir., 47 F.2d 16.

Furthermore, the correspondence shows that neither the Railroad Company nor the shipper ever attempted to waive the requirement in question.

The fourth question remains: Does the Interstate Commerce Commission have exclusive jurisdiction of the matter of waiver to the exclusion of the Federal Courts?

The construction of a tariff is a matter of law for the courts unless technical words are employed which must first be given an interpretation by the Commission. Where words of a tariff have an ordinary meaning, the construction of such tariff, its effect and validity, is for the determination of the court. Great Northern Ry. Co. v. Merchants' Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943; Standard Oil Co. v. United States, 283 U.S. 235, 51 S.Ct. 429, 75 L.Ed. 999; Butler Motor Co. v. Atchison, T. & S. F. Ry. Co., 8 Cir., 272 F. 683.

We think the judgment should be

Affirmed.

It is so ordered.

WOODROUGH, Circuit Judge (dissenting).

The "arrangement" required by the tariff is for the shipper to let the railroad know before shipment which one as between the two of them is to perform the service in question and for how long. Nothing else. These shippers unequivocally indicated their expectation that the railroad would perform the service and fixed the time "from and after June 1, 1935." Their accompanying threat not to pay for the service was brutum fulmen — as though they had said they would not pay the freight on the goods they shipped, or demurrage. If the courts require them to pay, discrimination between those who have had the service and have paid for it and those who have had it without paying for it will be avoided. Discrimination is the evil and the courts should help, not hinder, doing away with it.

* Rehearing denied Aug. 4, 1938.

1 Stipulation and Agreed Statement of Facts.

"It is hereby stipulated and agreed, by and between the parties hereto, that a jury may be waived in the above entitled cause and the same submitted to the court on the following stipulated facts:

* * * *

"(3) It is further stipulated and agreed that plaintiffs duly filed with the Interstate Commerce Commission, and duly posted and published a certain Western Trunk Lines Freight Tariff No. 330, with respect to furnishing and installing grain doors, or lumber for side or end door barricades for carload shipments in bulk, of grain, grain products and other articles, at certain terminal elevator points specified in said Tariff, including Kansas City, Missouri-Kansas, and that the effective date of said Tariff was July 1st, 1935; that attached to this stipulation is a true and correct copy of said Tariff, marked `Exhibit A', the parties hereto agreeing that the...