Fort Worth & Denver City Ry. Co. v. Childress Cotton Oil Co.

PER CURIAM. Brought by the Fort Worth & Denver City Railway Company, the suit was for undercharges on a shipment of cotton linters transported in a car fifty feet long from Childress, Texas, on September 29, 1939, to Naperville, Illinois. The applicable tariff governing the respective rights of the parties is Section 3(a) of Rule 34 of the Consolidated Freight Classification No. 13, which reads as follows: “If carrier has been unable or finds that it will be unable within six days after receipt of order * * * to furnish closed car of the length ordered and furnishes longer car, minimum weight shall be that fixed for car ordered except that when loading capacity of car is used, minimum weight shall be that fixed for car furnished.” This appeal presents a single question, whether the words “loading capacity”, appearing in that rule, are to be read as satisfied by a use of the loading capacity of the car which, though it does not take up the full loading capacity of the larger car furnished, does exceed the loading capacity of the car ordered. The district judge, in an opinion 1 fully canvassing and carefully giving his reasons for and against the respective contentions, took the shipper’s contention, [559] that is, that the minimum weight of the car furnished did not apply because the loading capacity of that car in excess of the loading capacity of the car ordered had been only partially used. Because this is so, and because the same question has been canvassed and dealt with in the Tenth Circuit in Atchison, T. & S. F. Ry. v. Guthrie Cotton Oil Co., 139 F.2d 10, the majority opinion in which declined to follow, and the minority opinion in which followed, Judge Wilson’s decision, we will not write on the case. We will content ourselves with saying that, agreeing with the minority and disagreeing with the majority opinion in that case, and fully in accord with Judge Wilson’s able opinion in this case, we affirm the judgment for the reasons he gave in rendering it. Footnotes [1] 48 F.Supp. 938.