Opinion
6 Div. 536.
June 7, 1917. Rehearing Denied December 24, 1917.
Appeal from Circuit Court, Jefferson County; J. E. Blackwood, Judge.
Tillman, Bradley Morrow and John S. Stone, of Birmingham, for appellant. Frank S. White Sons, of Birmingham, for appellee.
The majority of the court hold that the judgment should be affirmed. We are of the opinion that the tank wagon was properly classed for shipment as a part or appendage of the traction engine. If the tank wagon had been shipped separately, and not as a part of the traction engine, then the rate thereon would have been "double first class" and not "sixth class." The evidence shows that the tank wagon was a necessary part of the traction engine, if used in the country, where no water tanks or standpipes are available for purpose of furnishing water to the engine. The mere fact that it was not actually attached to the engine during its course of shipment, as it would be when both were used together, nor the fact that each could be used without the other, does not, in our judgment, furnish sufficient basis for making a separate classification for each.
That all parties to the shipment considered the tank a part of the engine, and so treated it, is made to appear. While this would not control if the classification was clearly unlawful, yet if the classification be doubtful, we may look to the conduct and dealings of the parties to the shipment in determining the proper classification.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.
I am of the opinion that the tank wagon and pole which formed a part of this shipment cannot be regarded as a part of the traction engine in such sense as to authorize the classification of the shipment under that of "traction engines."
The engine is complete in itself, and can be used without such an appendage, however convenient and desirable the latter may be for some of the uses to which the engine may be put. So, manifestly, the "tank wagon" is complete in itself, and can be used, and is designed to be used, separate and apart from the engine.
On the undisputed facts I am constrained to conclude that plaintiff is entitled to recover the sum claimed for freight charges under a proper classification of the shipment.
SAYRE and GARDNER, JJ., concur in this dissent.