No. 29903

NORVELL-WILDER SUPPLY COMPANY ET AL. v. BEAUMONT, SOUR LAKE & WESTERN RAILWAY COMPANY ET AL.

Submitted April 13, 1949. Decided June 15, 1949

Rates charged on carload and less-than-carload shipments of power pumps from Ashland, Ohio, Braddock, Pa., and Indianapolis, Ind., to Houston, Tex., found to have been applicable. Complaint dismissed.

J. W. Carlisle for complainants.

Tom Martin Davis, G. W. Holmes, A. L. Burford, Harry E. Boe, James G. Blaine, and Joe G. Fender for defendants.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MILLER, JOHNSON, AND CROSS

BY DIVISION 3:

The shortened procedure was followed. Exceptions were filed by the complainants to the examiner's proposed report. Exceptions and requested findings not discussed in this report nor reflected in our findings or conclusions have been given consideration and found not justified.

The complainants, Norvell-Wilder Supply Company, Pumps Incorporated, Robert Brown Hardware and Supply Company, Southern Engine and Equipment Company, South Texas Equipment Company, and Wilson Supply Company, hereinafter called Wilson, all of Houston, Tex., are engaged, among other things, in the purchase and sale of machinery, machinery parts, and power pumps. By complaint filed January 9, 1948, as amended, it is alleged that the rates charged on numerous carload and less-than-carload shipments of power pumps which moved over defendants' lines from Ashland, Ohio, Braddock, Pa., and Indianapolis, Ind., to Houston during the period March 3, 1945, to November 23, 1946, inclusive, were inapplicable. We are asked to award reparation in the amount of $7,168.09, with interest.

Complainants' statement of facts amended the complaint so as to withdraw Robert Brown Hardware and Supply Company, Southern Engine and Equipment Company, and South Texas Equipment Company as party complainants, and to include A. M. Lockett Company 274 L. C. C.

as a party complainant. The latter company was withdrawn as a party complainant by letter dated May 10, 1948.

On August 28, 1946, Wilson filed a claim for alleged overcharges on certain shipments with the Texas and New Orleans Railroad Company, one of the defendants herein. That claim was declined by the carrier on February 6, 1947. An informal complaint was filed with the Commission on July 14, 1947, covering those same shipments, and Wilson was advised on October 10, 1947, that the claim was not susceptible of voluntary adjustment. Those shipments are included in the instant complaint. Shipments delivered or tendered for delivery to the complainants other than Wilson prior to January 9, 1946, are barred by the statute.

There is no dispute as to the facts, and the sole issue is one of tariff interpretation. The shipments consisted of power pumps which are used as a source of power to maintain steam through condensate systems in laundries, or to force liquids, such as oil, water, and mud, through pipes under pressure, or as necessary and integral parts of power-drilling rigs. The rates charged were assessed on the basis of the ratings applicable on power pumps, n. o. i. b. n.,1 as published in items 30445 and 30450 of Agent R. C. Fyfe's western classification, I. C. C. Nos. 29 and 30, respectively. No. 29 was in effect prior to August 15, 1946, and No. 30 was in effect on and after that date. These items provide ratings of second class on less-than-carload shipments and class A on carload shipments, minimum weight 24,000 pounds, subject to rule 34, on the following description:

Machinery or Machines, or Parts Named,

** *

Pumps, power, noibn, or working heads, loose or in packages, or power pump or working head parts, noibn, in packages.

Complainants contend that the above ratings were not applicable and that the shipments are subject to the exceptions ratings appearing in Agent D. Q. Marsh's tariff I. C. C. No. 3592, items 190, 195, and 875. Defendants maintain that the rates published in the latter tariff are only applicable on automobile pumps and that, since the pumps involved herein were not designed for use as automobile parts and are not capable of such use, the exception ratings do not apply.

Agent Marsh's I. C. C. No. 3592, under the heading "Exceptions To Ratings In Current Western Classification," provides in item 190 for a class 35 (35 percent of first class) rating, minimum weight 30,000

Not otherwise indexed by name and not more specifically provided for in the classifi cation.

pounds, on "automobile parts named in item 195." That item reads as follows:

Vehicle Parts:

Automobile Parts:

* * *

Pumps, circulating or fuel, internal combustion engine. Pumps, power. noibn.

In addition to pumps as described, item 195 names as "automobile parts" various other commodities, such as floor carpets, linoleum, smoking sets, window shades, door stops, curtain fixtures, cork in shapes, oilcans, lamps and lamp fixtures, and tools and tool kits. Item 2170 of this tariff defines n. o. i. b. n. as "Not otherwise indexed by name in current western classification, and the articles thus described in this tariff are the same as the articles similarly described in said classification." Item 30365 of the western classification provides ratings of second class in less than carloads and class A in carloads, minimum weight 30,000 pounds, on "Pumps, circulating or fuel, internal combustion engine, in boxes; also CL, on skids," under the heading "Machinery or Machines, or Parts Named,

* *

Item 875 of the Marsh tariff provides for a class 70 (70 percent of first class) rating on less-than-carload freight described in item 876. The latter item names various articles including automobile parts, as described in item 195.

Complainants urge that the term n. o. i. b. n., by virtue of its definition in the tariff, has the effect of excluding from the n. o. i. b. n. application, only circulating and fuel pumps for internal combustion engines. They maintain that those two types of pumps are the only ones used on automobile engines and therefore, since automobile power pumps are otherwise indexed by name, that the heading of automobile parts in the tariff must be disregarded and the ratings applied on all types of power pumps.

It is a general rule of tariff interpretation that all of the pertinent provisions of the tariff must be considered together, with the view of giving effect, so far as may be possible under a reasonable construction, to every word, clause, and sentence thereof, to the end that the general and specific provisions in apparent contradiction may subsist together. Bacon Bros. v. Indiana Harbor Belt R. Co., 139 I. C. C. 53; Cudahy Packing Co. v. Chicago, B. & Q. R. Co., 147 I. C. C. 441; Van Dusen Harrington Co. v. Northern Pac. Ry Co., 32 Fed. (2d) 466. Rate tariffs are to be construed strictly according to their language, and doubts as to their meaning must be resolved against the framers

and in favor of the shippers, but such doubts must be reasonable and the terms used must be taken in the sense in which they are generally understood and accepted commercially rather than on the basis of strained and unnatural interpretations. Gaines Food Co., Inc., v. Aberdeen & R. R. Co., 256 I. C. C. 62. Terms in a heading or caption are descriptive of what follows and must be read in connection therewith. Arthur Morgan Trucking Co. v. Baltimore & O. R. Co., 232 I. C. C. 137.

Items 195 and 876 provide rates on circulating or fuel pumps for internal combustion engines, and on power pumps not otherwise indexed by name in the classification. These designations, however, are subject to qualification by the captions, "Vehicle Parts" and "Automobile Parts," which are as much a part of the items as are the commodity descriptions. Since power pumps such as those shipped by complainants have not been and could not be used as circulating or fuel pumps for internal combustion engines, which are the only power pumps indexed by name in the classifiaction, they are covered by the classification description "Pumps, power, noibn, * *” under "Machinery or Machines." It will be noted that the latter item includes not only power pumps, but also "working heads" and "power pump or working head parts, noibn," which is not true of items 195 and 876. This lends support to defendants' contention that the intention of the framers was to include in the latter items only such power pumps, in addition to circulating or fuel pumps for internal combustion engines, as could be used as automobile parts.

Complainants argue that circulating and fuel pumps are the only pumps on an automobile engine, and therefore that there is a contradiction between the captions and the body of the items. The items are not limited by the captions to engine parts, but to automobile parts. Power pumps are used on certain automobiles elsewhere than as a part of the engine; for example, as a part of the air-conditioning system for pumping refrigerating liquid.

The only seeming conflict under the construction thus indicated lies in the tariff definition of n. o. i. b. n. as "Not otherwise indexed by name in current western classification, and the articles thus described in this tariff are the same as the articles similarly described in said classification." Since the term "noibn" as used in the classification item "Pumps, power, noibn," under "Machinery or Machines," plainly includes power pumps such as those in complainants' shipments, a literal interpretation of the foregoing definition, without regard to other pertinent provisions of the tariff, could lead to the conclusion that these power pumps are included in items 195 and 876. But such

a construction would not be reasonable, because it would wholly disregard and make of no effect the captions in the specific rate items. The definition in item 2170 is of a general nature, and applies to the tariff as a whole. It may not be interpreted so as to modify the plain wording of the specific rate items.

We find that the rates assailed were applicable. The complaint will be dismissed.

274 I. C. C.