T.R. Miller Mill Co. v. Louisville & N.R. Co.

• Decision Date: 10 November 1921
• Docket Number: 6 Div. 418.
• Citation: 207 Ala. 253,92 So. 797
• Parties: T. R. MILLER MILL CO. v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

92 So. 797

207 Ala. 253

T. R. MILLER MILL CO. v. LOUISVILLE & N. R. CO.

6 Div. 418.

Supreme Court of Alabama

November 10, 1921

Rehearing Denied March 3, 1922.

Appeal from Circuit Court, Jefferson County; Horace C. Wilkinson Judge.

Action by the T. R. Miller Mill Company against the Louisville &amp Nashville Railroad Company, to recover alleged excessive freight charges, and also the statutory penalty for a failure on demand to repay such excess. There was judgment for the plaintiff, which on motion was set aside, and the plaintiff appealed. Affirmed.

In view of Code 1907, §§ 5669, 5678, providing for changes of freight tariffs being effective only in the future, printed and published freight schedules being by section 5527 lawful rates when approved by the Commission, such schedules cannot be made unlawful for and during the period of their approved operation by any subsequent retroactive finding and order of the Commission.

The alleged excesses arise from a shipment of timber or lumber from Brewton to Mobile, the charge being that it was classified as lumber and subjected to a rate of 5 cents when it should have been classified as timber at a rate of only 4 cents, and for nine separate shipments in car lots of pine doors, sashes, and blinds, which was subjected to a rate of 31 cents under an unlawful tariff filed by the defendant when they should have been carried at a rate of 18 cents as fixed by the lawful tariff then in effect. The timber or lumber was shipped in 1914 and 1915, and the other shipments were made between November 30, 1914, and June 6, 1915.

The first and third counts of the complaint are common counts for money had and received. The second count is for the statutory penalty of $1 for each day's delay on each shipment in making restitution of the alleged excess charges, compliance with the statutes as to time and notice being fully alleged and proven. The timber or lumber shipped by plaintiff consisted of pieces approximately 10 feet long, 9 inches wide, and 5 inches thick, being yellow pine lumber, roughly sawn, and not dressed. Several witnesses who were experienced timber men or dealers testified that such pieces of wood larger than 3x3, regardless of length, are known in the trade as timber, that they are so classified by the Southern Yellow Pine Association, and that they are not properly rated as lumber. The tariff differentiating lumber and timber and logs at greater and lesser rates was first adopted about 1905 prior to which the classification and rating was identical. Since that time the classification here complained of has been uniformly followed by defendant, and shippers have always been informed thereof. On this issue the court instructed the jury as follows:

"When a railroad company promulgates a rate and uses an ambiguous term (and by that I mean a term or word that is susceptible of two or more constructions or interpretations), the company must be held to have used that word in the sense as it was understood by the trade and the public generally, and not in a technical sense, as understood by the railroad company solely; so that in this case, in determining whether or not these shipments should be properly classified as timber or lumber it will become necessary for you to determine, from the evidence in the case, whether or not the public and the lumber trade generally would have classified them as timber or lumber."

The record shows without dispute that prior to September 4, 1914, defendant's tariff, known as Birmingham Local No. 2, was in force; that between 90 and 100 per cent. of its rates were mileage rates, and that therein the rate on pine doors, sashes, and blinds was 18 cents, which was a competitive commodity rate; that on August 13, 1914, after a hearing before the Alabama Railroad Commission, that body ordered that the Louisville & Nashville Railroad Company publish and make effective the attached schedule of rates on the commodities named between all points in Alabama on its own lines, etc., and with the instruction that the rates and attached schedule on the articles named take precedence over rates on the same articles published in any mileage tariff of the Louisville & Nashville Railroad Company wholly within the state of Alabama, etc. Pursuant to this order, on August 13, 1914, defendant filed with the Railroad Commission a new tariff, known as G. F. O. 2229, and duly published the same, to be effective on September 1, 1914. This tariff was construed by defendant as superseding under the order of the Commission of August 13, 1914, all former tariffs made up mainly of mileage rates, and defendant included herein pine doors, sashes, and blinds at the new of 31 cents on a mileage basis. Defendant's freight agent, Browder, testified as to this tariff (G. F. O. 2229):

"I do not know whether the Railroad Commission read it or not, but I do know that they had it 10 days, that they got it through the mail and returned a receipt for it which meant that it was approved. They either returned the tariff or forward a receipt for it. If they return a tariff it is rejected, but if they send a receipt for it they have approved it."

He stated further that said tariff went into effect on September 1, 1914, but the tariff purports on its face to have become effective on September 4, 1914.

On complaint of certain shippers the Railroad Commission cited defendant to a hearing on June 7-9, 1915, to investigate the reasonableness and lawfulness of rule 1 of defendant's tariff G. F. O. 2229 as applying to shipments of lumber and other commodities under a petition to change it so as to make applicable rates in commodity tariffs when lower. On the hearing the Commission found as follows: First, that the tariff of the Louisville & Nashville Railroad Company in effect on its intrastate business at the time of said citation and order were not just and reasonable; second, that the rates on the commodities named in the schedules adopted by it were to be used in lieu of and were to take precedence over rates on the same articles published in any mileage tariff of the Louisville & Nashville Railroad Company of prior date, but were not to supersede the rates published in other mileage tariffs of the said company; fourth, that the rates put into effect by the defendant company by its tariffs G. F. O. 2229 and 2230 under the influence of rule 1 as therein embodied were not in accordance with the letter or spirit or order of the Commission that established these rates. The defendant company contends that it had no strictly mileage tariff in effect at that time, and that, in omitting any reference to mileage tariffs in its rules to tariffs G. F. O. 2229 and 2230, it conformed to the instructions of this Commission contained in said order of August 13, 1914. Thereupon the Commission ordered as follows:

"That said rule 1 be annulled and disallowed, and that in lieu thereof the following rules are prescribed as being in compliance with the said order of August 13, 1914, namely: The rates named herein must be applied between all points proper in Alabama on the Louisville & Nashville Railroad, and take precedence as such over the rates published in any mileage tariff of the Louisville & Nashville Railroad, but will not supersede the rates carried in other tariffs of this company that were in effect on August 13, 1914, on any of the articles named herein."

Pursuant to this order defendant issued and filed its supplement No. 16 to G. F. O. 2229, effective on September 1, 1915, under which the former commodity rate of 18 cents on pine doors, sashes, and blinds was restored, and the mileage rate of 31 cents was annulled. On this question the trial judge instructed the jury as follows:

That, I say to you, gentlemen, is a question of law, and, as best I can see it, the court rules that tariff 2229, which established or purported to establish the 31-cent rate, did not supersede or set aside the 18-cent rate. In other words, I rule, as a matter of law, that the 18-cent rate on sash and door shipments was in force and effect all the time, and was not superseded by the 31-cent rate.

The jury were also instructed that the penalties claimed could be recovered if the proper claims were duly filed therefor, and defendant failed within 60 days to pay them-facts which were without dispute in the evidence. There was verdict and judgment for $2,244, which, on defendant's motion, was set aside, and new trial entered because of error committed in the rulings of the court.

Brenton K. Fisk, of Birmingham, for appellant.

Tillman, Bradley & Baldwin, of Birmingham, for appellee.

SOMERVILLE J.

1. We are of the opinion that the instruction given the jury, to the effect that the understanding of the general public and of the lumber trade would properly determine the application of the terms "lumber" and "timber" to forest products when offered for shipment under a freight tariff which discriminates between them as to rates, was too narrow, in that it excluded from consideration the probative force of the practical construction of these terms as evidenced by the practice of the carrier and the assent of shippers for a period of 15 years. We think the jury should have been allowed to consider that practice, which was proven without objection, in determining the meaning of the words "timber" and "lumber" for the purpose of tariff classification.

2. On the other and more important branch of the case, the decisive question very clearly is whether or not defendant's G. F. O. No. 2229 was effective as a published and lawful tariff during the period of the shipments referred to.

Section 5525 of the Code provides that-

"No change shall be made by any common carrier in the rates, fares and charges *** which have

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