Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
C. O. Whittemore, for Appellant.
Key Pittman and F. K. Pittman, for Respondent.
By the Court, Norcross, J.:
This is an action by respondent against appellant to recover damages for alleged excess charges in the transportation of ore over appellant's railroad and certain connecting lines from Rhyolite, Nevada, to Murray, Utah; the ore being consigned to the American Smelting and Refining Company at the latter point. There is no dispute as to facts in this case, and the sole question to be determined is as to whether or not the trial court erred in its construction of appellant's published tariff and schedule, which constituted the contract governing the charges for such ore shipments.
The court found, among other facts, the following:
That at the time said ores were agreed to be shipped and were received and transported from the said town of Rhyolite to the said consignee at Murray, Utah, there were on file in the office of the Interstate Commerce Commission at Washington, D. C., and in the local office of said defendant at Rhyolite, Nevada, certain tariffs, rate sheets, schedules and rules and regulations publishing the freight rates on ores shipped from Rhyolite, Nevada, to Murray, Utah, and other points. That said tariffs, schedules, rates, etc., so filed and published, in fixing the rates to be charged on the shipment of such ore or ores of such character from said town of Rhyolite to the said American Smelting and Refining Company at Murray, Utah, contained the following words and figures, to wit: In Dollars and Cents per Ton of 2,000 lbs. Value per ton of 2,000 lbs. Not exceeding: Value $20, rate $5.00; value $30, rate $6.00; value $40, rate $6.50; value $50, rate $8.00; value $60, rate $9.00; value $70, rate $10.00; value $80, rate $10.50; value $90, rate
$11.00; value $100, rate $12.00; value $150, rate $14.00; value $200, rate $15.50; value $250, rate $17.60; value $350, rate $18.50. Agents must forward ore at rates applying on valuation of not less than one hundred dollars ($100.00) per ton of 2,000 pounds, which rates will be subject to change according to certificate of valuation furnished by the smelting and refining companies at destination, said valuation being determined as follows: From the gross assay value of the entire contents, according to the market price of the metal product at destination, deduct the charges for assaying, smelting and handling at the smelter. Actual rate: Freight charges will be applied on the result in valuation per ton in accordance with the rates shown in this tariff.' The caption of the excerpt from the tariffs and rate schedules, reading In Dollars and Cents per Ton of 2,000 lbs. Value per ton of 2,000 lbs. Not exceeding:' qualifies each of the valuations following under such caption. For instance: Ore not exceeding $20, rate $5.00; ore not exceeding $30, rate $6.00; and so through the schedule.
There were introduced in evidence and made a part of the findings of fact, for the purpose of illustration, the certificates furnished by the smelting company to appellant and respondent with regard to a certain shipment known as shipment No. 39. The certificate furnished by the smelting company to the shipper, respondent herein, showed the gross weight of ore received; the percentage of moisture therein; the net or dry weight of the ore after deducting the amount of moisture; the value per ton, based on such net or dry weight; and the amount deducted per ton as a smelting or working charge. The moisture content, according to this certificate, was 9.5 per cent, aggregating 6,604 pounds, which being deducted from the gross weight for which the smelting company paid the plaintiff at the rate of $63.96 per ton after deducting freight advanced at $10 per ton upon the gross weight, amounted to $347.60.
The certificate furnished the appellant railroad company on account of said shipment No. 39 gave the weight
as 69,520 pounds and the actual value at $63.96 per ton of 2,000 pounds. No mention whatever of the moisture content was made in the certificate.
1. Based upon the weight of the ore, inclusive of the moisture content, the assay value per ton, after deducting smelting charges, of shipment No. 39 would be $57.88, as against $63.96 per ton, the corresponding value of the dry ore. Whether the moisture should or should not be considered in determining the value of the ore for rate purposes under the tariff and schedule of the appellant would make a difference of one dollar per ton in the freight charge upon this particular ore shipment. The evidence shows that, in the several ore shipments involved in the case, the moisture content of the ore varied from about 7 per cent to about 20 per cent. The freight rate actually charged the respondent was based on the value of the dry ore per ton, and this rate was applied to the weight of the ore inclusive of moisture. It was the contention of plaintiff, and so held by the court below, that the value of the ore for purposes of determining the freight rate, under appellant's tariff and schedule, was the value per ton inclusive, and not exclusive, of the moisture content. We think this is the only reasonable construction to be placed upon the words gross assay value of the entire contents, used in the rules adopted by the appellant company for determining the proper freight rate to be applied to ore shipments. The moisture content must be transported by the carrier, and the shipper must pay freight upon the same, although no values can be extracted from such moisture. As of necessity it must be included in determining the weight, upon which the rate shall be ...