(dissenting).
The Railway Company brought this action against the Cotton Oil Company to recover alleged unpaid freight charges arising out of the shipment in interstate commerce of nine cars of commodity known as cotton linters. In the trial below the Railway Company conceded it was not entitled to recover on one car and the Cotton Oil Company conceded liability as to one car. With respect to the remaining seven cars, the court found in favor of the Cotton Oil Company. The seven cars moved under uniform domestic bills of lading prescribed by the Interstate Commerce Commission. Such bills of lading bore notations that the Cotton Oil Company had ordered 36 feet and 40 feet 6 inch length *12cars and that cars 50 feet in length were furnished for the carrier’s convenience. The Cotton Oil Company did not load the cars furnished to their full capacity, but did load more bales of linters into the cars furnished than could have been loaded into cars of the length ordered. Freight charges were assessed and collected on the actual weight of the shipments. The question presented is whether the minimum weight fixed for the cars furnished should have been applied.
The applicable tariff is § 3(a) of Rule 34 of 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 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.
“If longer car than ordered is furnished and loading capacity of car furnished is not used, following notation must be made by agent on Bill of Lading and Waybill:
“ ‘Car - ft. in length ordered by shipper on - (date) ; car - ft. in length furnished by carrier on - (date), under Rule 34 of Consolidated Classification.’ ”
The contention of the Railway Company is stated in its brief as follows:
■ “Plaintiff contends that the charges should have been computed, not upon the actual weight, but upon the minimum weight applicable to 50 foot cars. * * * This contention is based on plaintiff’s assertion that the words ‘loading capacity’ as used in said Rule 34, Section 3(a) thereof, should be construed to mean that no more bales could be loaded into the cars furnished than could have been loaded into the cars ordered if freight rates applicable to cars of the length ordered are to apply.”
Tariff Circular No. 20, Rule 66(a), is not a construction of a tariff. It is an expression of the Commission’s view of what the tariff must provide in order to be reasonable.
Kaye & Carter Lumber Co. v. Minnesota & I. Ry. Co., 17 I.C.C. 209, and Walker v. Cleveland, C., C. & St. L. Ry. Co., 169 I.C.C. 458, did not involve the construction of tariffs. What the Commission held in those cases was that a tariff would be unreasonable which applied the minimum weight of the car furnished, rather than the minimum weight of the car ordered, if the shipment could have been loaded into the car ordered.
It seems clear to me that the meaning of the phrase “loading capacity of car” in the first paragraph of the tariff means the loading capacity of the car furnished. This is made abundantly clear by the second paragraph which provides “if longer car than ordered is furnished and loading capacity of car furnished is not used,” notation shall be made by the agent on the bill of lading and waybill. Moreover, to construe the phrase “loading capacity of car” as referable to the car ordered would make the tariff unreasonable under the I.C.C. decisions above referred to, because so construed, if the car furnished was loaded to the capacity of the car ordered, the minimum weight of the car furnished would apply. Our inquiry then is, what is the meaning of the phrase “loading capacity of car furnished”?
Generally, non-technical words in a tariff should be given their ordinary signification or common meaning.1 Since the tariff 'is written by the carrier, all ambiguities or reasonable doubts as to its meaning should be resolved against the carrier and in favor of the shipper.2 The ordinary meaning of “capacity” is “extent of room or space; content, cubic; volume.” Webster’s New International Dictionary, 2d Ed., p. 396. Therefore, “loading capacity” must mean extent of room or space of the car furnished.
*13There are practical reasons why the loading capacity of the car furnished should not be determined by reference to the loading capacity of the car ordered. When a car of a specified length is ordered and a car of greater length is furnished, the car ordered becomes a hypothetical car of unknown loading capacity, because railroad box cars of the same length vary as to height and width and, therefore, as to loading capacity. Hence, if a shipper ordered a car 36 feet in length and a longer car was furnished for the convenience of the carrier, there would be no way for the shipper to know the exact loading capacity of the car ordered. Therefore, if the construction, for which the Railway Company contends, is adopted, the shipper would be liable for the minimum weight of the car furnished, if he loaded one more bale in the car furnished than he could have loaded into the car ordered, although he would have no way of knowing the number of bales he could have loaded into the car ordered. Moreover, there would be no way of determining that the shipper had loaded more into the car furnished than could have been loaded into the car ordered, unless it be established that he loaded more into the car furnished than could have been loaded into the largest existing car of the length ordered. It seems to me these considerations must have activated the Railway Company in writing the tariff.
It is my view that the phrase “loading capacity of car” refers to the car furnished and means loaded to the extent of the room or space in that car.
For these reasons, I respectfully dissent.
American Railway Express Co. v. Price Bros., 5 Cir., 54 F.2d 67; Smokeless Fuel Co. v. Chesapeake & Ohio R. Co., 142 Va. 355, 128 S.E. 624, 629; Northern Pacific R. Co. v. Sauk River Lumber Co., 160 Wash. 691, 295 P. 926, 928; Raymond City Coal & T. Corp. v. New York Cent. R. Co., 6 Cir., 103 F.2d 56, 57; C. E. Luttrell & Co. v. Southern Railway Co., 193 S. C. 438, 8 S.E.2d 753, 755.
Union Wire Rope Corp. v. Atchison, T. & S. F. Ry. Co., 8 Cir., 66 F.2d 965, 967; Raymond City Coal & T. Corp. v. New York Cent. R. Co., 6 Cir., 103 F.2d 56, 57; Atlantic Coast Line R. Co. v. Atlantic Bridge Co., 5 Cir., 57 F.2d 654, 655; Northern Pacific R. Co. v. Sauk River Lumber Co., 160 Wash. 691, 295 P. 926, 927; Smokeless Fuel Co. v. Chesapeake & Ohio R. Co., 142 Va. 355, 128 S.E. 624, 629.