Louisville & N. R. v. Kilby Car & Foundry Co.

GARDNER, J. The foregoing statement of the case suffices for a general outline of the issue presented and determined. As we understand briefs of counsel for the respective parties, the sole question on this appeal is whether or not the Apalachicola Northern Railway Company had filed with the Interstate Commerce Commission a tariff of its charges which governed or authorized storage charges on the ten flat cars which had been shipped to the Florida Timber Products Company, and which were left by .the said railroad on its side tracks on their own wheels for a period of from 70 to 80 days before appellee ordered their return to Anniston. It is not controverted by appellant’s counsel that, before these storage charges may be collected by appellant against appellee, it must be made to appear that the tariff was filed by the said Apalachicola Northern Railway Company with the Interstate Commerce Commission authorizing the same. Goldenberg v. Clyde Steamship Co., 20 Interst. Com. R. 527; Memphis Freight Bureau v. Kansas City So. Ry. Co., 17 Interst. Com. R. 90; Central of Ga. Ry. Co. v. Patterson, 6 Ala. App. 494, 60 South. 465. It is the insistence herein of appellant that storage charges here involved are provided for by rule 1, above set out as a part of count 4 of the complaint, and which rule was included in the tariff duly filed, as follows: Rule 1. Storage. Freight, except company material, received for delivery or held for forwarding directions, if stored in or on railroad premises, is subject to storage regulations, as follows: (Then follows sections A, B, C, D, and E as shown in the statement of the case, and which need not be here repeated.) These sections disclose that they are a very material and essential part of the rule itself, and it is clear that they are so essential and so intimately connected as a part of the rule that no charge for storage can legally be exacted unless the particular service is included in some one or more of these provisions. Upon a careful examination thereof, we are of the opinion that the provisions in the section can only be reasonably applied to freight transported in cars of the railroad carrier, and cannot be reasonably applied to cars transported as freight on their own wheels. The term “storage” used in said section is applicable to unloaded freight, land our conclusion is also that the expression “unloaded freight”, was intended to embrace freight that is unloaded in the usual and ordinary way, such as is subject to demurrage while in the cars of the carrier and to storage after removal from the cars. Such condition could *68 not, of course, exist as to the cars in question transported on their own wheels, and we think it evident that the only charge for storage of freight intended by these rules was a charge for freight transported in cars of the carrier. It may be the carrier intended to include within the tariff on file charges for storage of freight of this character, and that the omission was an oversight. I-Iowever this may be, we think it would require the very greatest liberality of construction, indeed a strained construction, to hold that the expression used included freight of character here involved. We conclude that the rule as to storage did not include freight of this particular character by any fair intendment, and that the ruling of the court was therefore free from, error, and is accordingly affirmed. Affirmed. ANDERSON, O. J., and McCLELLAN and SAYRE, JJ., concur.