AMERICAN TIE & TIMBER CO., Limited, v. KANSAS CITY SOUTHERN RY. CO. et al., 175 F. 28

SHELBY, Circuit Judge (after stating the facts as above). It is unlawful for any common carrier engaged in interstate commerce “to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, orto subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage whatsoever.” Act Feb. 4, 1884', c. 104, § 3, 24 Stat. 380 (U. S. Comp. St. 1901, p. 3155).

The statute affords a remedy for the violation of the act by providing: “That iii ease any common carrier subject to the provisions of this act shall do. cause to be done, or permit to be done any act, matter or thing in this act prohibited or declared i,o be unlawful, or shall omit to do any act, matter or thing in this act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” 24 Stat. 379, 382, § 8.

The petition states a cause of action under this section, for it charges the unjust discrimination condemned by the statute. It was held, in Paxton Tie Company v. Detroit Southern Railroad Company, 10 Interst. Com. Rep. 422, that the defendant in that case unjustly discriminated against the plaintiff by refusing to furnish cars for the shipment of cross-ties while it did furnish cars to others for the interstate shipment of other freight.

The reason assigned by the defendants for refusing to furnish the cars to transport plaintiff’s cross-ties is that they had not filed and published a tariff which embraced cross-ties.

They contend that if they had transported the cross-ties they would have violated the following portion of the Hepburn act: ‘‘No carrier, unless otherwise provided by this act, shall engage or participa ce in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in .such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time. * * * ” Act June 29,-1906, c. 3591, § 2, 34 Stat. 5S4, 587.

Both on the averments of the petition and the defense presented, the case turns on the question as to whether or not the schedules filed by the defendants include railway cross-ties which the plaintiff was seeking to transport. The written evidence offered by the plaintiff sustained its averments as to the words used in the tariff schedules of the defendants. Joint tariff No. 216-D of the Kansas City Southern Railway Company included “lumber, car loads, all kinds,” with exceptions not material.

The lumber tariff of the Texas & Pacific Railway Company No. 8,500-PI included “lumber, all kinds,” with exceptions not relevant. The rate fixed by both schedules was 24 cents per hundredweight, as alleged in the petitions. The Kansas City Southern Railway Company, in its answer, alleges that its

schedule of rates was changed, and that at the time the plaintiff applied to have the cross-ties transported it had no rates fixed which would be applicable. It claims that this change was made by an amendment of June 16, 1907, but an examination of that amendment, which was in evidence, while it shows a change of rates on specific named articles, does not, as we understand it, change the

schedule so far as it relates to lumber. It seems, therefore, that both defendants alike must stand on the contention that “ties are manufactured products and could not be included under the general term of lumber”; or, as otherwise expressed, that fixing a rate of 24 cents per hundredweight on lumber did not include or cover the charge for transportation of railway cross-ties. “Lumber” is a generic word of indefinite meaning. In one contract or written paper, in the light of the context, it might be more comprehensive than in another contract or writing where the context might tend to limit its meaning.

When unlimited by surrounding circumstances or by the context, the word includes man)'- specific things. Cole, C. J., said, in Williams v. Stevens Point Lumber Co., 72 Wis. 487, 489, 40 N. W. 154, 155, the word “lumber” includes “any timber sawed or split for use.” The Century Dictionary gives the same definition: “Timber, sawed or split for use, as beams, joists, planks, staves, hoops and the like.” The

definitions found in other dictionaries do not vary greatly from this. Laths are said to be lumber in Babka v. Eldred, 47. Wis. 189, 191, 2 N. W. 102, 559; and shingles are said to be included in the word, as used in a statute (Gross v. Eiden, 53 Wis. 543, 547, 11 N. W. 9); and lumber is said to include fence posts in Ryan v.

Guilfoil, 13 Wash. 373, 43 Pac. 351, and the court observed : “It matters not whether they are split through the medium of a maul and wedge or through the medium of machinery in a mill; they are in either case manufactured from timber. * * * ” There are other cases indicating the generic character of the word. Sands v. Sands, 74 Me. 239; Bondur v. Le Bourne, 79 Me. 21, 7 Atl. 814. The cases that deal with the meaning of the word “lumber” indicate that it may mean anything manufactured out of the log with saw, ax, maul and wedge, or machine, for building houses,-bridges, fences, or railroads.

After the product leaves the log for commercial use, if it is suitable to use for any of these purposes, it may be denominated “lumber,” as the word is used in this country. The

schedule of tariffs of both defendants had rates on “lumber, car loads,” and “lumber, all kinds,” but fixed no rates on railway cross-ties as a specific article. One of the defendants received two car loads of the cross-ties from the complainant and transported them from Frierson, La., to Linwood, Kan., on the rate fixed by the tariff

schedule for lumber—24 cents per hundredweight. Six waybills were in evidence showing that the other defendant had moved six car loads of oak cross-ties from Fouke, Ark., to Ft. Worth, Tex., on through rate shipments. By these shipments it appears that the defendants construed the word “lumber” in their tariff schedules to include railway cross-ties. It may he true that the defendants could have designated railway cross-ties as a separate commodity, but they would have been required to fix the lumber rate for their transportation.

The classification of railway cross-ties in a different class from other lumber, imposing upon them a higher rate, has been held to be unjust discrimination. Reynolds v. Railway Company, 1 Interst. Com. Rep. 393. See, also, Railroad Company v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105. There must be a new trial, and, in view of that fact, wc should not unnecessarily comment on the evidence and the impression it produces on our minds.

It is sufficient to say that, in our opinion, in view of the evidence to which we have referred, the trial court should have not instructed the jury, as matter of law, that the word “lumber,” as used in the tariff schedules, did not include railway cross-ties, and that therefore the court erred in directing a verdict for the defendants. Reversed. For other casos see same topic & § humees in Dee. & Am. Digs. 1307 to date, & Rep’r Indexes