#### PENNSYLVANIA RAILROAD CO. v. THE UNITED STATES

[No. J-196.

Decided June 2, 1930]

*Mr. R. Aubrey Bogley*for the plaintiff. *Messrs. Frederic D.*McKenney, *John S. Flannery,*and *G. Bowdom Graighill*were on the brief.

*277
      *Mr. Louis B.*MehUnger, with whom was *Mr. Assistant Attorney General Charles B. Bugg,*for the defendant.

*280Booth, *Chief*Justice,

delivered the opinion of the court:

In the month of April, 1922, the plaintiff railroad company, in conjunction with other carriers, transported for the Government, in accord with Government bills of lading, seven shipments of crepe paper bandages for surgical dressings. The shipments originated at Atlanta, Georgia, and were consigned to the United States Public Health Service, Perryville, Maryland. The facts are not in dispute.

The plaintiff company presented its transportation bills for a total sum of $3,469.70 based upon a rate of $2,035 per hundredweight. When the shipments were accomplished there were no tariffs on file with the Interstate Commerce Commission providing a rate on “ crepe paper bandage for surgical dressing,” by that name. There were, however, on file with the commission tariffs providing class rates between the point of origin and destination, applicable to this movement as follows:

> “Surgical bandages or antiseptic gauze, in boxes,” first-class rate any quantity, $2,035 per hundredweight.

> “Paper, crepe, in boxes,” first-class rate any quantity, $2,035 per hundredweight.

> “Paper, N. O. I. B. N. [not otherwise indexed by name] not printed nor imprinted, in boxes, bundles, crates, or rolls,” third-class rate less than carload $1.555 per hundredweight, and fifth-class rate carload, $1,085 per hundredweight.

The plaintiff company’s bills were predicated upon a classification of the commodity carried as coming within either the first or second paragraph of the above tariffs. The Comptroller General declined to approve the bills as presented. The first deduction from the amount claimed *281was based upon a claimed classification of the shipment as falling within the tariffs on file with the commission providing a rate of *66y2*cents per cwt. for the transportation of “ toilet paper, paper toweling, and paper towels.” Subsequently, upon a reconsideration of the claim of the plaintiff company, the Comptroller General reversed in part his ruling, allowed some additional sums, and finally classified the shipment under the tariffs on file, which provide a rate for the transportation of “ paper, N. O. I. B. N.” (not otherwise indexed by name). As a result of the final action of the comptroller, the plaintiff’s original claim was reduced to the extent of $1,002.58. This suit is for the recovery of that sum.

The consolidated freight classification to which recourse must be had in this instance contains class ratings on articles of all descriptions, and the single issue in the case is the ascertainment of a proper classification for the article involved. If the specific article shipped is devoid of features, character, and use which entitle it to be classified as the manufacturers of the article classified it, and'possesses no characteristics which bring it within the specific classification contained in the Consolidated Freight Classification, then, of course, it falls within the comprehensive and general classification, “ N. O. I. B. N.” The facts, as well as physical exhibit of the article, leave no room for doubt that the same was manufactured and intended for use as a paper bandage for surgical dressing. The defendant makes much of the fact that the paper is not medicated and is not to be applied directly to a wound. This is true, and from the record is the sole defense available, as the defendant produced no testimony. The plaintiff, on the other hand, produced three disinterested witnesses, each an undisputed expert of long experience in freight classification, and without exception the proof establishes that the article involved is a surgical bandage. The fact that it is made of paper and serves to hold the dressing on wounds in place, “which is the common use of the cloth bandage ” as well as all others, does not change its identity. There is nothing in the record to disprove the above proven facts, and it may not be disputed that both in form and in substance the article is intended *282as a surgical dressing and nothing else. Of course it could be used for other purposes, but its *maütibility*for use is not always determinative. *(Ford Co.*v. Railroads, 19 I. C. C. 507.) Its use, however, as disclosed by the experts, becomes a useful factor in determining its identity, and the intended use of articles as disclosed by the consolidated classification for rates indicates by innumerable descriptive terms that the applied ratings originate from variations in use. *(W. Scheidel & Co. v. Railroads,*11 I. C. C. 532.)

We might prolong the discussion by extending this opinion to various other contentions contained in the briefs. It is sufficient, we think, from the findings, to say that the article transported is a surgical bandage. It was transported to the Public Health Service, manufactured as an inexpensive bandage, for use as directed, and unquestionably adapted for that use. The Interstate Commerce Commission in the early case of Andrews *Soap Co.*v. Railroads, 4 I. C. C. 41, a case cited in plaintiff’s brief, disposed of a classification case, and in so doing decided as follows:

> “ In this case, if the soap of the complainant, which is represented as a toilet soap, is in fact of no greater value or cost of production than the common soap with which it comes in competition, the discrimination complained of in respect to the classification and rate could readily be obviated by putting it on the market and having it transported as a common or laundry soap.

> * * * ❖

> “ The commission is unable to see how it can properly or justly require carriers to analyze the freight offered to them, to ascertain its quality and its actual value, when those are claimed to differ from its trade designation and the price paid by the consumer. A rule of that kind would be altogether impracticable.

> ‡ * * * *

> “ When a manufacturer describes his article to tlie public for the purpose of making a market for it, he also so describes it for purposes of carriage, and it seems as reasonable that the carrier should have the right to accept the manufacturer’s representation concerning his product as that the public should be influenced by it in the purchase of the article.”

*283The plaintiff is awarded a judgment for $1,002.58. It is so ordered.

Williams, *Judge;*LittletoN, *Judge;*and GeeeN, Judge, concur.