Updike Grain Co. v. Chicago & NW Ry. Co.
| Decision Date | 07 October 1929 |
| Docket Number | No. 8381,8382.,8381 |
| Citation | 35 F.2d 486 |
| Parties | UPDIKE GRAIN CO. v. CHICAGO & N. W. RY. CO. (two cases). |
| Court | U.S. Court of Appeals — Eighth Circuit |
Anan Raymond, of Omaha, Neb. (Francis A. Brogan and Alfred G. Ellick, both of Omaha, Neb., on the brief), for appellant.
Robert D. Neely, of Omaha, Neb. (Wymer Dressler, of Omaha, Neb., on the brief), for appellee.
Before KENYON and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.
These two cases were consolidated and tried by the court under a written stipulation waiving a jury. They are suits to recover freight charges claimed to be due upon shipments of grain by appellant from various stations on the Chicago & Northwestern Railway between Sioux City and Council Bluffs, through Council Bluffs to Chicago, with transit privileges at Council Bluffs. The carrier collected the regular through rate from points of shipment to destination. Subsequently becoming convinced that it had not collected the proper freight charges according to its transit tariff, it brought these suits, claiming that it should have collected the through rate from Sioux City to Chicago of 26½ cents per 100 pounds. If the carrier's construction of the tariff is correct, then appellant is liable for the amounts sued for.
The trial court held with appellee, and entered judgments against appellant totaling $2,573.91 and costs of suits. The short question here is the construction of the so-called transit tariff (appellee's Exhibit No. 2). We set out certain parts thereof. Rules 4 and 20 are as follows:
==================================================================
Rule | Subject | Rules
No. | |
-----|-----------------|------------------------------------------
| | (A) Rate into the transit station
| | will be the current tariff
| | rate, point of origin to such
| | station
4 | Rates To and |
| From the | (B) Rate from the transit station
| Transit Station | to transit destination will
| | be the difference between the
| | rate collected to the transit
| | station and the transit rate
| | point of origin to transit destination
| | in effect on date of
| | shipment from point of origin
| | as shown on freight receipt
| | bill surrendered
| | Unless otherwise provided, the
| | transit rate will be the tariff
| | rate on the original commodity,
| | point of origin to destination.
| |
20 | Intermediate | The transit rates and privileges
| | to or from intermediate
| | stations will be the same as
| | provided under the transit rules
| | to or from the next more distant
| | station to which or from
| | which transit rates and privileges
| | are named in tariffs.
| | (See Exception.)
| | Exception. — Will not apply on
| | shipments moving wholly within
| | the States of Minnesota or
| | Iowa.
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Item 52 is as follows:
C. & N.W. R'y Stations in Iowa.
==========================================================================
Item | When | Will be | Will be Forwarded | Rate to be
No. | originating | Granted | from | Charged (see
| at | Transit | Transit Stations | Rule 4)
| | Privileges at | C. & N. | When no
| | C. & N.W. | W. R'y Stations | Specific Rate
| | R'y Stations | as follows: | is shown below
| | as follows: | | Direct Tariff
| | | | Rate per
| | | | Rule 4 applies.
-------|-------------|---------------|-------------------|----------------
52 | Sioux | Omaha, Neb. | Chicago, Ill. |
| City, | South Omaha, | Peoria, Ill. |
| Iowa | Neb. | Milwaukee, |
| | Council | Wis. and |
| | Bluffs, Iowa. | points taking |
| | Missouri | same rates. |
| | Valley, | |
| | Iowa. | |
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Ambiguous tariffs are, of course, to be construed favorably to shippers. Southern Pac. Co. v. Lothrop (C. C. A.) 15 F.(2d) 486. If the tariffs are not ambiguous, the question of what the rate is must be resolved by reference to the tariffs.
The trial court held there was no ambiguity in this transit tariff, and no necessity for the consideration of any extraneous evidence of experts. Each party to this controversy contends that the tariffs are clear, that its construction of the tariff is the only right one, and that there is no doubtful question involved. One expert for each party in his testimony, following the customary practice of experts, construed the tariff as clearly supporting the position of the side for which he was testifying.
Aided by well-established principles, we think the real meaning of this transit tariff can be ascertained from its terms. In Pillsbury Flour Mills Co. v. Great Northern Ry. Co. (C. C. A.) 25 F.(2d) 66, 68, 69, Judge Booth, speaking for the court, has clearly stated the rules applicable to the construction of railroad tariffs. Some of them we quote:
From the index to the transit tariff it is apparent that shipments of grain from Modale, Mondamin, Blencoe, and other stations named, from which the shipments under discussion were made, were within the general range of transit privileges. None of the items of the tariff, however, provide specifically for transit privileges at Council Bluffs on grain shipped from the various stations, except Item No. 52, which provides for such privileges on shipments originating at Sioux City. It...
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