Southern Ry. Co. v. Acme Fast Freight, Inc.

D.C. Circuit

Southern Ry. Co. v. Acme Fast Freight, Inc.

124 F.2d 229, 74 App. D.C. 390, 1941 U.S. App. LEXIS 2466

CourtCourt of Appeals for the D.C. Circuit

DecidedNovember 10, 1941

DocketNo. 7694

StatusPublished

This text of 124 F.2d 229 (Southern Ry. Co. v. Acme Fast Freight, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Southern Ry. Co. v. Acme Fast Freight, Inc., 124 F.2d 229, 74 App. D.C. 390, 1941 U.S. App. LEXIS 2466 (D.C. Cir. 1941).

Pincite

Opinions

EDGERTON, Associate Justice.

Appellee, Acme Fast Freight, Inc., a freight forwarder, sued appellant, the Southern Railway Company, to recover five cents per hundred pounds on freight shipped by Acme from Southern’s freight station at High Point, North Carolina. Under a license or lease from Southern, Acme occupied certain space in that station, for which it paid rent, and carried on its business there. Part of this space was enclosed by a partition. Southern picked up Acme’s freight, either from this space or from adjoining space, and loaded it on cars.

The controversy turns on the meaning of Southern’s “Pick-Up and Delivery Tariffs.” Two such were successively in effect, but the differences between them are not material here. The earlier contained these terms: “Pick up service as defined in Item 20 will be performed * * * without additional charge above the tariff rate * * * or in lieu thereof an allowance as provided in Item 210 will be made to consignor who elects to make his own arrangements for delivery to carrier’s freight depot * * *. Item 20. Subject. Definition of Terms. The term 'Pick-Up Service,’ as used in this tariff, refers to the service of the carrier involved in calling for and collecting freight, and receipting therefor, from a dock, platform, or doorway directly accessible to highway vehicles, at consignor’s warehouse, factory, store, or similar place of business; and includes transportation therefrom to the premises of the carrier's freight depot * * *. Item 210 * * * When the consignor elects to make his own arrangements for the Pick-Up Service authorised herein, an allowance of 5 cents per 100 pounds will be made to such consignor for such service * * *. Said allowance will be made only on shipments which are delivered and unloaded by the consignor on carrier’s freight depot platform or in carrier’s freight depot, and receipted for by the carrier at the freight depot located on or served by the tracks of said carrier.”¹

If Southern; had offered alternative rates, a lower rate for shipments delivered to it at its station and a higher rate for shipments delivered to it elsewhere, Acme would probably have been entitled to the lower rate. But that is not this case. Instead, Southern offered to perform a pickup service, authorized shippers to perform this service in its behalf, and promised an allowance to those who did so. “Said allowance”, in the last sentence quoted, clearly refers to the foregoing “allowance * * * for such service”; i.e., for “transportation [230]*230* * * to the * * * carrier’s freight depot” from the “consignor’s * * * place of business.”² By ignoring the word “said”, Acme seeks to treat the sentence in question as cancelling the limitations which precede it. Instead, it incorporates them. In the circumstances of this case, no one performed or could perform the transportation service for which the allowance was offered, for the simple reason that the consignor’s place of business was in the “carrier’s freight depot.” This disposes of the claim in suit. The fact that Southern did not perform the service is immaterial. Since Acme did not perform it, payment of the allowance to Acme is neither required nor permitted by any provision of the published tariff, to which tariff the carrier must conform.

This result is as fair as it is lawful. If Acme had rented quarters outside the station, it could have chosen between two alternative methods of getting its goods on board without cost to itself. It might have required Southern to collect them, or it might have hauled them to the station and received the allowance. By renting quarters within the station Acme got the goods on board, without cost to itself, by a third method. This puts it on a par with other shippers. It is here seeking to obtain, in addition, the benefit of the second method without its cost. If it succeeded, it would obtain an advantage over other shippers.³ They either, like Acme, perform no service for Southern and receive no allowance, or, unlike Acme, perform Southern’s pick-up service at their own expense.

I concur in the additional views of Judge RUTLEDGE.

Reversed.

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EDGERTON, Associate Justice.

Appellee, Acme Fast Freight, Inc., a freight forwarder, sued appellant, the Southern Railway Company, to recover five cents per hundred pounds on freight shipped by Acme from Southern’s freight station at High Point, North Carolina. Under a license or lease from Southern, Acme occupied certain space in that station, for which it paid rent, and carried on its business there. Part of this space was enclosed by a partition. Southern picked up Acme’s freight, either from this space or from adjoining space, and loaded it on cars.

The controversy turns on the meaning of Southern’s “Pick-Up and Delivery Tariffs.” Two such were successively in effect, but the differences between them are not material here. The earlier contained these terms: “Pick up service as defined in Item 20 will be performed * * * without additional charge above the tariff rate * * * or in lieu thereof an allowance as provided in Item 210 will be made to consignor who elects to make his own arrangements for delivery to carrier’s freight depot * * *. Item 20. Subject. Definition of Terms. The term 'Pick-Up Service,’ as used in this tariff, refers to the service of the carrier involved in calling for and collecting freight, and receipting therefor, from a dock, platform, or doorway directly accessible to highway vehicles, at consignor’s warehouse, factory, store, or similar place of business; and includes transportation therefrom to the premises of the carrier's freight depot * * *. Item 210 * * * When the consignor elects to make his own arrangements for the Pick-Up Service authorised herein, an allowance of 5 cents per 100 pounds will be made to such consignor for such service * * *. Said allowance will be made only on shipments which are delivered and unloaded by the consignor on carrier’s freight depot platform or in carrier’s freight depot, and receipted for by the carrier at the freight depot located on or served by the tracks of said carrier.”¹

If Southern; had offered alternative rates, a lower rate for shipments delivered to it at its station and a higher rate for shipments delivered to it elsewhere, Acme would probably have been entitled to the lower rate. But that is not this case. Instead, Southern offered to perform a pickup service, authorized shippers to perform this service in its behalf, and promised an allowance to those who did so. “Said allowance”, in the last sentence quoted, clearly refers to the foregoing “allowance * * * for such service”; i.e., for “transportation [230]*230* * * to the * * * carrier’s freight depot” from the “consignor’s * * * place of business.”² By ignoring the word “said”, Acme seeks to treat the sentence in question as cancelling the limitations which precede it. Instead, it incorporates them. In the circumstances of this case, no one performed or could perform the transportation service for which the allowance was offered, for the simple reason that the consignor’s place of business was in the “carrier’s freight depot.” This disposes of the claim in suit. The fact that Southern did not perform the service is immaterial. Since Acme did not perform it, payment of the allowance to Acme is neither required nor permitted by any provision of the published tariff, to which tariff the carrier must conform.

This result is as fair as it is lawful. If Acme had rented quarters outside the station, it could have chosen between two alternative methods of getting its goods on board without cost to itself. It might have required Southern to collect them, or it might have hauled them to the station and received the allowance. By renting quarters within the station Acme got the goods on board, without cost to itself, by a third method. This puts it on a par with other shippers. It is here seeking to obtain, in addition, the benefit of the second method without its cost. If it succeeded, it would obtain an advantage over other shippers.³ They either, like Acme, perform no service for Southern and receive no allowance, or, unlike Acme, perform Southern’s pick-up service at their own expense.

I concur in the additional views of Judge RUTLEDGE.

Reversed.

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Bluebook (online)

124 F.2d 229, 74 App. D.C. 390, 1941 U.S. App. LEXIS 2466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-ry-co-v-acme-fast-freight-inc-cadc-1941.

Opinions

I concur in the additional views of Judge RUTLEDGE.

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