in interstate or foreign commerce by motor vehicle for compensation, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies, except to the extent that these operations are subject to the provisions of Part I [chapter 1 of this title]."
In which status was the defendant dealing with the plaintiff? That we left to the Jury to determine under the evidence.
In Williston on Contracts, Revised Edition, Vol. 4, Section 1072, at page 2983, the applicable rule is thus stated: "The law determines common carrier status by what is done rather than by the corporate character or declared purposes, and so long as the service is actually rendered on a public basis, lack of authority so to operate, disclaimer or subterfuge designed to simulate private carriage will not absolve the proprietor from the duties of common carriage."
This definition finds support in United States v. Ramsey, 8 Cir., 197 F. 144, 42 L.R.A., N.S., 1031; Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 153, 154, 72 A. 516, 21 L.R.A., N.S., 188; James v. Public Service Commission, 116 Pa.Super. 577, 177 A. 343; Erb v. Public Service Commission, 93 Pa.Super. 421.
There was evidence from which the jury could have found the defendant was a common carrier, i.e., it advertised in telephone directories and on letter-heads that it was ready to transport furniture for the public for compensation; its president testified that it would serve all responsible persons who applied; the carriage of household goods was the regular business of defendant; and daily it operated trucks over the same routes.
We then have the question of whether the defendant, as a common carrier, has properly limited its liability. Common carriers under the Motor Carrier Act of 1935 are subject to the provisions of the Interstate Commerce Act (49 U.S.C.A., § 20(11), which provides for the filing by the carrier of its tariffs and contracts limiting liability, which must be approved by the Commission. We hold that it has not limited its liability, because it has failed to file tariffs with the Interstate Commerce Commission as a common carrier, in accordance with the Act, although it did file schedules as a contract carrier.
Defendant contends it is protected by the Released Rates Order M.C. No. 2 of the Interstate Commerce Commission. We cannot see that this order protects the defendant as a common carrier, because it has neither filed any tariffs as a common carrier, nor had its contracts as a common carrier limiting liability approved by the Interstate Commerce Commission. It does not help the defendant as a common carrier that it has filed its schedules as a contract carrier. We therefore conclude that we cannot grant judgment for the defendant n.o.v.
We now have to consider whether there was such error in the course of the trial as to require us to grant a new trial of this case. Defendant contends that we erred in permitting plaintiff to testify as to the value of her household goods lost in transit. We are not convinced we erred in that respect. We have always understood the rule to be that the owner of household furniture and personal effects was competent to testify as to its value. Barrett v. Fournial, 2 Cir., 21 F.2d 298; Wigmore on Evidence, 2d Ed. Vol. 1, Sec. 716; 22 Corpus Juris, § 683; Denney v. Fenton Storage Company, 124 Pa.Super. 81, 188 A. 92; Whitesell v. Crane, 8 Watts & S., Pa., 369; Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 156, 72 A. 516, 21 L.R.A., N.S., 188.
Defendant also urges that we erred in refusing to permit defendant to cross-examine Maurice Kressin, President of defendant company, who was called for cross-examination by plaintiff. Defendant has not shown or urged that it has been injured in any way, or that it did not get before the jury all the evidence Kressin had to offer as to the matter with reference to which he was called to testify on cross-examination by plaintiff. Defense counsel states he does not have the typewritten record of the testimony of this witness and cannot discuss in detail his testimony. At least he has not shown that defendant's case was prejudiced in any particular by our refusal to permit him to cross-examine Kressin, his own witness.
The only other point raised by defendant that needs discussion is that of interest. We believe we properly instructed the jury in that respect, for as we view the law, interest is allowable from the time the property should have been delivered in imposing damages upon a carrier for the neglect to deliver. Lehigh Valley Railroad Company v. State of Russia, 2 Cir., 21 F.2d 396, 406.
Defendant's motion for judgment n.o.v. and for a new trial will be denied.
© 1992-2004 VersusLaw Inc.