Charleston & Western Carolina Railway Co. v. Merry Bros. Brick & Tile Co.

70 S.E.2d 798, 86 Ga. App. 104, 1952 Ga. App. LEXIS 887

• Court: Court of Appeals of Georgia
• Decided: May 7, 1952
• Docket: 33849
• Status: Published

Opinion

Carlisle, J.

1. “Tariffs, like statutes, have the force of law; like statutes, they must be expressed in clear and plain terms, so that those dealing with and governed by them may understand them and act advisedly. Swift v. U. S. (C. C. A.) 255 F. 291. They may not be contrived in catchpenny terms to catch the ignorant and unwary. If they are ambiguous, or permit of two meanings the shipper may construe them in the most favorable way to himself which the terms permit. Southern Pac. v. Lothrop (C. C. A.) 15 F. (2d) 486; American Ry. Express Co. v. Price Bros. (C. C. A.) 54 F. (2d) 67; United States v. Gulf Ref. Co., 268 U.S. 543, 45 S. Ct. 597, 69 L. Ed. 1082.” Atlantic Coast Line R. Co. v. Atlantic Bridge Co., 57 Fed. 2d, 654.

“Rate schedules are required to be published by posting, are for the information and use of the general public, and generally the words used in them are to have their common meaning. Newton Gum Co. v. C. B. & Q. R. R. Co., 16 I. C. C. 346; . . where the commodity shipped is included in more than one tariff designation, that which is more specific will be held applicable; and where two tariff descriptions are equally appropriate the shipper is entitled to the lower rate.” American Ry. Express Co. v. Price Bros., 54 Fed. 2d, 67; United States v. Gulf Refining Co., 268 U. S. 542, 45 Sup. Ct. 597, 69 L. ed. 1082.

The applicable provisions of Item 3300 of the tariff are as follows:

“Brick and Related Articles, CL [meaning carload], Viz: Articles made of clay, concrete, gypsum, plaster or shale (except as otherwise indicated), in straight or mixed CL (unless otherwise indicated), mm. wt. 5U,000 lbs., CL, viz:

“Brick, viz:

Broken, crushed or ground

Building (solid, hollow or perforated), not enameled or glazed except as provided for. below

Common, solid, or perforated, with total aperture space not more than 40 per cent, made with concrete, clay or shale (see Note 1 below), mixed with other articles in this item). (For rates on brick, common, in straight carloads, see Item 3310)

Facing (solid, hollow or perforated), not enameled or glazed except as provided for below

Fire, including fire brick made of chrome, corundite, magnesite or silica (see Note 6 below)

•Furnace ....

Paving, shale or fire clay , . ,

Radial

Salt glazed _ , , .

- • ' ■ <■ - - ■ ‘ <■ ■ '

Sand cement.....'..., ¿ ^ .] ,1.1 ■, 1

Sand lime

Zinc or lead glazed

Note 1—Not applicable on any grades (firsts, seconds, thirds or culls) of:

Artifically colored brick

Enameled brick

Facing brick (smooth surface brick selected for color or mechanical perfection or brick that is textured or sand finished to present a particular architectural appearance)

Fire brick

Paving brick

Refractory brick

Salt glazed brick.”

The provisions of Item 3400 are as follows:

“Brick,.Common, CL, viz.: Brick, common, solid or perforated, with total aperture space,not more than 40 per cent, made with concrete, clay, or shale (See Note 2, below), min. wt. 60,000 lbs. (see Note A, this item).

Brick, common, solid or perforated, with total aperture space not more than 40 per cent, made with concrete, clay or shale (see Note 3 below), when not braced or wedged or packed in or loaded with straw or other material, for protection against rubbing, breaking of chipping; carload min. wt. 60,000 lbs.

Note A—Common brick may be shipped in mixed carloads with articles named in Items 3300, 3395 and 3465, each commodity contained in the mixture to be charged for at the carload rate provided thereon at actual weight, provided that the total freight charge on the entire shipment shall not be less than that accruing on basis of rate applicable on the highest rated commodity, in the mixture at min. wt. of 50,000 lbs.”

Note 2 of this Item is identical with Note 1 of Item 3300.

Note 3 of Item 3400 is as follows:

“Will not apply on any grades (firsts, seconds, thirds, or culls) of: Artifically colored brick Enameled brick

Facing brick, when braced, wedged, or packed in or loaded with straw or other material, for protection against rubbing, breaking or chipping

Fire brick

Paving brick

Refractory brick

Salt glazed brick.”

By virtue of a circled 4 reference in Rate Table for rates on Item 3300, it is provided that where rates are found in Item 3400, the Item 3300 rate shall not apply.

■ Item 3400 is a common-brick classification alone; no other designation is included therein, and all common brick would seem to come within that classification which are not specifically-excepted. Item 3300 -also contains a common-brick classification, which is almost identical with the Item 3400 classification. Under the uncontradicted evidence of the ingredients used in their manufacture and the method of manufacture, the bricks which were contained in the shipments here in controversy were common brick; and, nothing more appearing, the common-brick designation in Item 3300 and Item 3400 are equally applicable to the bricks shipped; and, under such circumstances, the lower rate applicable to Item 3400 would obtain under authority of American Ry. Express Co. v. Price Bros., supra.

If it be insisted that, by reason of the designation “radial” contained in Item 3300, and the defendant’s concession that the brick in question were radial-shaped brick, Item 3300 should apply, because of this more specific designation (the specific being controlling over the general), then it is to be observed that the brick in question conform to the specification only if the designation “radial” is descriptive of the shape of the brick (radial brick being “brick with tapering sides to form a circular wall such as that of a chimney or tower,” Webster’s New International Dictionary, Second Edition, Unabridged, 1951 printing, p. 2050); but a shape designation in the Item 3300 classification is anomalous. All other designations in the particular group with which we are concerned in Item 3300 are bricks designated on the basis of their physio-chemical properties rather than on the basis of shape. In order for radial .brick to be ejusdem generis with the other designations, the radial brick intended to be included in this classification should be of the same general physio-chemical properties as the other brick. If this is not the intention, then this item of the tariff becomes ambiguous and must be construed in favor of the shipper. Atlantic Coast Line R. Co. v. Atlantic Bridge Co., supra. If the radial brick intended to be included in this classification are those of the same general physio-chemical properties as the other brick designated, then under the uncontradicted evidence, the brick included in the shipments here in controversy are not of that class; they possess none of those properties.

It follows from what has been said herein that, in spite of the admission of the testimony as to former rates charged and practices followed, which could in no wise affect the question of the applicable rate imposed by the Interstate Commerce Commission, which must be applied without favor or variance to all shippers, the verdict for the defendant was demanded as a matter of law, and none of the alleged errors in the court’s charge need be considered.

Judgment affirmed.

Gardner, P.J., and Townsend, J., concur.