Highway 75 to its junction with unnumbered Rock County, Minn., highway, thence over unnumbered Rock County, Minn., highway through Steen and Hills, Minn., and unnumbered South Dakota highway to its junction with South Dakota Highway 38, and thence over South Dakota Highway 38 to Sioux Falls, S. Dak. Return over same route. Intermediate points: Calumet, Gaza, Primghar, Archer, Sheldon, Matlock, George, and Rock Rapids, Iowa, and Steen and Hills, Minn. Off-route points: Larrabee and Edna, Iowa.

Route 6, between Cherokee, Iowa, and Sioux City, Iowa: From Cherokee, Iowa, to Le Mars, Iowa, over Iowa Highway 5, and thence over U. S. Highway 75 to Sioux City, Iowa. Intermediate points: Meriden, Cleghorn, Remsen, Le Mars, Merrill, Hinton, and Leeds, Iowa. Off-route points: Marcus and Oyens, Iowa. 43 M. C. C.

1

No. MC-C-353

THE L. V. BRANDT CORPORATION v. HAYES FREIGHT LINES, INC.

Submitted September 9, 1943. Decided August 8, 1944

Rates charged by defendant motor common carrier on less-than-truckload shipments of coal-burning stoves and wood-burning stoves from Metropolis, Ill., to St. Louis, Mo., found inapplicable. Applicable rate determined and complaint dismissed.

Charles O. Swartz for complainant.

David Axelrod, S. L. Edelstein, and David Barrett for defendant. Harry M. Slater for intervener.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2:

Exceptions were filed by the defendant to the order recommended by the examiner, and the complainant replied.

By complaint filed November 5, 1942, the L. V. Brandt Corporation, of Chicago, Ill., assignee of the consignee Witte Hardware Company, a corporation, of St. Louis, Mo., alleges that the charges collected by the defendant, a motor common carrier, on 33 less-than-truckload shipments of heaters from Metropolis, Ill., to St. Louis, between July 15, 1939, and October 24, 1940, inclusive, were inapplicable. We are asked to determine what rates were applicable and lawful. The Central States Motor Freight Bureau, Inc., the defendant's tariff publishing agent, intervened in its support. The evidence submitted related only to the applicability of the rates charged, and our consideration will be confined to that issue. Rates will be stated in cents per 100 pounds.

The shipments were transported by the defendant to the consignee at St. Louis. The consignee paid freight charges based on rates of 64 cents on 1 shipment weighing 375 pounds, 63 cents on 3 shipments aggregating 965 pounds, 53 cents on 2 shipments aggregating 460 pounds, and 52 cents on 27 shipments aggregating 26,959 pounds. The 52-cent rate was the third-class rate. The basis of the other rates charged is not disclosed. The complainant contends that the applicable rate is the fourth-class rate of 37 cents based on a rating established as an exception to the governing National Motor Freight

Classification. The defendant offered no evidence at the hearing and, prior to the filing of exceptions to the examiner's recommended order, failed to make its position clear. It contends in its exceptions, however, that the third-class rate of 52 cents, based on a rating in the classification, was applicable.

The articles shipped are described generally in the bills of lading as "sheet iron air tight heaters" and "sheet iron air tight heaters with cast tops etc.," and were crated for shipment. They are used as space heaters, as distinguished from cooking stoves. These heaters are made of sheet iron and, for the most part, have cast-iron tops and trimmings. Approximately 91.5 percent of those shipped were constructed to burn wood and were advertised as wood-burning heaters, but coal may be burned in them if care is taken to protect the grates. The remainder of the heaters were designed to burn coal, but wood fuel may be used in them. The shipper and its predecessor have manufactured these articles for nearly 50 years and have always described them as "heaters," but they may also be described as heating stoves. Their average weight packed for shipment is 91 pounds, and the shipments ranged from 150 to 4,615 pounds.

Prior to August 29, 1940, by exception to the classification, the defendant maintained a fourth-class rating on: "Stoves, Coal and Wood, L. T. L." Effective on that date, this commodity description was changed to read: "Stoves, Coal or Wood, L. T. L." On October 28, 1940, after the movement of these shipments, the fourthclass exception rating was canceled and the ratings in the classification became applicable.

The defendant argues that the classification-exception rating of fourth class applied only on stoves or heaters designed and constructed for the purpose of burning coal as well as wood. This interpretation is based on its construction of the conjunction "and" as used in the commodity description "Stoves, Coal and Wood" appearing in the exception item prior to August 29, 1940. It is urged that "and" was used to couple the descriptive terms "Coal" and "Wood" between which it was used and that the exception rating did not apply on coal stoves or wood stoves but only on stoves designed for the use of both types of fuel.

We cannot accept this strained interpretation. It is within common knowledge that the words "and" and "or" are frequently used interchangeably, and often mean the same thing; and it is well settled that they are convertible by the substitution of one for the

The term "L. T. L." means in less than truckloads.

other, as the sense may suggest or require. The word "and" has also been defined to mean "along with", "also", "and also", and "as well as." A reasonable interpretation of the description "Stoves, Coal and Wood" is, as contended by the complainant, that it referred to coal stoves and wood stoves. As seen, on August 29, 1940, the exception item was changed to read "Stoves, Coal or Wood." We likewise construe this description as referring to coal stoves or wood stoves. It follows that the fourth-class rate of 37 cents was applicable.

We find that the rates assailed were inapplicable, and that the applicable rate was the fourth-class rate of 37 cents. The overcharges should be promptly refunded.

An order will be entered dismissing the complaint.

43 M. C. C.

No. MC-C-382

R. D. FOWLER MOTOR LINES, INC., v. COLONIAL MOTOR FREIGHT LINES, INC.

Submitted June 2, 1944. Decided October 6, 1944

Defendant found not to be rendering reasonably continuous and adequate service as authorized and required by its certificate of public convenience and necessity over a regular route between Salisbury and Marion, N. C., and at certain intermediate and off-route points. Defendant ordered to institute reasonably continuous and adequate service. Proceeding held open pending entry of further order or orders.

Wallace L. Schubert for complainant.

Glenn F. Morgan and H. B. Koonce for defendant.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5:

Exceptions were filed by defendant to the order recommended by the examiner. Our conclusions differ slightly from those recommended. By complaint filed October 21, 1943, R. D. Fowler Motor Lines, Inc., alleges that Colonial Motor Freight Lines, Inc., of High Point, N. C., the holder of a certificate issued in No. MC-1380, on July 9, 1942, has abandoned portions of the operations covered by its certificate authorizing the transportation of general commodities, with exceptions, as follows:

Route 1. In connection with its regular route between Salisbury and Marion, N. C., all service at Marion and all intermediate points and at all off-route points authorized, namely, Cooleemee, Mocksville, Harmony, Stony Point, Hiddenite, Taylorsville, North Wilksboro, Newton, Maiden, Lincolnton, Cherryville, Granite Falls, Lenoir, Valmead, Drexel, and Rutherford College, N. C.

Route 2. In connection with its regular route between Charlotte, N. C., and Baltimore, service at the off-route points of Davidson, Mooresville, Mount Pleasant, Albermarle, Denton, Pomona, Kernersville, Mount Airy, Yanceyville, and Roxboro, N. C., Clarksville, La Crosse, Lawrenceville, and Occoquan, Va., and Annapolis and Cockeysville, Md.

Route 3. In connection with its regular route between Greensboro, N. C., and Richmond, Va., service at the intermediate points of Reidsville, N. C., and Danville, Va., and at the off-route points of Walnut Cove, Madison, Mayodan, Stoneville, Leaksville, Spray, and Draper, N. C., and South Boston, Va.

Route 4. All irregular-route service between Baltimore, on the one hand, and points in Gaston, Cleveland, and Rutherford Counties, N. C., on the other.