Texas & N. O. R. Co. v. W. A. Kelso Bldg. Material Co., 12412

Citation250 S.W.2d 426
Decision Date12 June 1952
Docket NumberNo. 12412,12412
PartiesTEXAS & N. O. R. CO. et al. v. W. A. KELSO BUILDING MATERIAL CO., Inc.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Wigley, McLeod, Mills & Shirley, of Galveston, and Baker, Botts, Andrews & Parish, of Houston, of counsel; V. W. McLeod, of Galveston, and J. Curtiss Brown, Joe G. Fender, both of Houston, attorneys, for appellants.

Cyril J. Smith, of Houston, for appellee.

CODY, Justice.

This was a consolidated suit by appellee, a shipper, to recover from appellants, Texas & New Orleans Railroad Company and the Gulf, Colorado & Santa Fe Railway Company, overcharges alleged to have been collected by them respectively on numerous carload shipments of sand, transported from Eagle Lake to Galveston, Texas. Each such shipment was consigned and delivered to appellee at one of its two plants located, for consignment purposes, on the tracks of the Galveston Wharves, a switching or terminal railroad line at Galveston. Each such shipment on which overcharges were claimed was transported over the line of the appellants, from whom such alleged overcharges were claimed, from Eagle Lake to Galveston and there turned over by the appellants respectively to its connecting carrier, the Galveston Wharves, and by the Galveston Wharves delivered to appellee at one of its plants, aforesaid.

The appellants collected on said shipments a mileage rate of 90cents per ton of 2,000 pounds for said carload shipments of sand. Said mileage rate of 90cents covered (or, as the parlance of the trade has it, absorbed) the switching charges for switching services at Galveston. Appellee, however, contends that the only rate which could have been lawfully collected by appellants was a specific point-to-point commodity rate from the point of origin to the ultimate destination of said shipments, to-wit: to appellee's plants on the Galveston Wharves; that said rate so prescribed for application to such shipments by the Railroad Commission was 86cents per ton of 2,000 pounds for said carload shipments; and that hidden in or covered by the said rate of 86cents was the shipping charges prescribed for Galveston Wharves for moving each carload shipment from its connecting carrier to the ultimate destination on Galveston Wharves.

It thus appears that this suit raises a question of the interpretation or construction of tariffs of the Texas Railroad Commission to determine the rate lawfully applicable to said shipments. The case was tried without aid of a jury upon detailed written stipulations of the parties and upon the testimony of two expert railroad rate witnesses, one testifying for appellants, the other testifying for appellee. The court rendered judgment for appellee against appellants for the overcharges so sued for by appellee. The amount of the judgment recovered against appellant, T. & N. O. was $1,916.95, while the amount recovered against appellant, G. C. & S. F. was $676.70. Appellee additionally recovered interest and attorneys' fees from appellants.

Appellants predicate their appeal upon two points, reading:

'First Point-The judgment of the trial court should be reversed and rendered because Railroad Freight Circular 12455 which is the only tariff of record authorizing a rate less than collected does not apply without addition of switching charges.

'Second Point-On the uncontroverted and undisputed evidence this court should reverse and render for appellants because the 90cents mileage rate with absorption of switching was the only lawful rate that could have been collected.'

Railroad Freight Circular No. 12455, referred to in appellants' first point, was adopted by the Railroad Commission, as is expressly recited in said order, to enable railroads to meet the competition for barge service on sand produced in the San Jacinto River. The order names various points of origin, none of which need be given except Eagle Lake. So far as here material, said order reads:

'Order

'Austin, Texas, January 26, 1939

'It is ordered by the Railroad Commission of Texas that Commodity Tariff No. 9-D, heretofore issued by it, be and the same is hereby amended by adding to Section 6 of Tariff, the following item:

                Item
                No.            Commodity                From            To            Rates
                -------------------------------------------------------------------------------
                      Sand, carloads, minimum        Eagle Lake                        86
                      weight as provided in Item
                      No. 15, Section 2 of Tariff                    Galveston
                      (See Notes 1 and 2)
                -------------------------------------------------------------------------------
                

361 Note 2--Switching charges of lines other than line haul carrier at origin

or destination will not be absorbed, but will be in addition to the rate

provided herein and paid by shipper or consignee.

It is contended by appellants that the provisions of Note 2 of Circular 12455 must be construed as expressing the intention on the part of the Railroad Commission that the charges for the switching services rendered by Galveston Wharves over its tracks is not included in the 86cents rate which the shipper is required to pay the line haul carrier for transportation of a shipment from Eagle Lake to Galveston but that the switching charges of the Galveston Wharves must be paid by the shipper or consignee. If Circular 12455 stood alone, much might be said in support of such construction contended for by appellants. It is well settled that the legislative function of fixing rates for common carriers has been delegated to the Railroad Commission and that its rules and regulations in reference to such rates have the same force and effect as do statutes; and that in construing rules and rate orders which have been adopted by the Commission the courts will apply the same rules of construction as are applied to legislative acts and that when the intent of the Commission as expressed in the rule or order is ascertained, it should control. Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284. In the cited case the court pointed out the different manner in which rates were adopted by the Railroad Commission and by the I. C. C., which resulted in the different rules being applied to the construction of interstate rates whereby they were strictly construed against the carrier and the manner by which the State rates were adopted which has resulted, as stated above, in the rules of statutory construction being resorted to to determine the Commission's intentions as manifested by said rules and rates.

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11 cases
  • The Cadle Co. v. Butler, 13-94-495-CV
    • United States
    • Texas Court of Appeals
    • August 21, 1997
    ...Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex.App.--Fort Worth 1988, writ denied); Texas & N.O.R. Co. v. W.A. Kelso Bldg. Material Co., 250 S.W.2d 426, 430 (Tex.Civ.App.--Galveston 1952, writ ref'd n.r.e.). Sections 16.035, 16.036, and 16.037 have not previously been interpreted in a situatio......
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    ...150 p. 217; Hindes v. Lock, 259 S.W. 156 (Tex.Comm'n App. 1924, jdgmt. adopted); Texas & N .O.R. Co. v. Kelso Building Material Co. Inc., 250 S.W.2d 426 (Tex.Civ.App. Galveston 1952, writ ref'd n.r.e.); Vernon's Tex.Rev.Civ.Stat.Ann. art. 10. In the latter case, the testimony of persons eng......
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