Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
The Denver and Rio Grande Western Railroad Company*fn1 brought this action against Bernstein Bros. Pipe & Machinery Company*fn2 to recover $259.21 additional transportation charges and Federal transportation tax on two carloads of devices shipped from Middletown, Pennsylvania, to Pueblo, Colorado.
The complaint alleged that the applicable tariff provided for charges in the amount of $1,493.71, plus $44.81 tax, a total of $1,538.52, and that at the time of delivery the Railroad Company collected only $1,279.31. The complaint alleged that the "arises under the laws of the United States regulating commerce," 49 U.S.C.A. § 3(2) and § 6(7).
From a judgment in favor of the Railroad Company, Bernstein his appealed.
The devices are Stewart-Warner Southwind Portable Heating Units, Model 782. They embrace (a) a Lauson R.S.C., ball bearing, air cooled, 1 1/2 H.P., one cylinder, 4-cycle internal combustion engine, with attached magneto; (b) a Stewart-Warner Heater, combustion type, with over-heat switch and Champion spark plug, and (c) a special super-charger, turbine-type blower. Each device functions as a unit. The internal combustion engine must first be started. It then drives the magneto which supplies electricity to the spark plug on the Stewart-Warner Heater to cause combustion of gasoline in the latter, which combustion is the source of heat produced by the unit, and it drives the turbine-type blower so that the latter forces the hot air out of the heater, into three ducts connected with hoses or tubes by which the heat is conducted to the place of use.
The correct rate depends upon which of two tariffs is applicable.
Item 5404 of Consolidated Freight Classification No. 17, reads:
"Boilers, Furnaces, Radiators, Stoves, Related Articles or Parts Named:
"5405 Gas, gasoline or oil, noibn, including gas radiators, noibn, * * * in barrels, boxes or crates."
The term "noibn" means not otherwise indexed by name.
Item 27185 of Consolidated Freight Classification ...