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THOMAS v. NATIONAL DELIVERY ASS'N

September 10, 1937

THOMAS
v.
NATIONAL DELIVERY ASS'N, Inc.



The opinion of the court was delivered by: SCHOONMAKER

This is an action in trespass to recover the value of plaintiff's household goods demolished in course of their transit from New York to Pittsburgh.

Defendant entered into a contract to transport these goods from New York to Pittsburgh. The truck in which defendant was transporting them was overturned on the highway and the goods completely demolished. Plaintiff recovered a verdict for $3,816. Defendant has moved for judgment in its favor, notwithstanding the verdict, or in lieu thereof, for a new trial.

 The written contract between the parties contains, among other provisions, the following:

 "1. The Association reserves the right to accept or refuse any order for the transportation of goods. It is not a common carrier, and therefore is not an absolute insurer of the goods: its liability for moving, packing, and handling being limited to ordinary care. * * *

 "2. The shipper hereby declares that the total value of the goods to be shipped is $2,000. * * *

 "3. The Association agrees to insure the shipper to the extent of $2000 for each van load carried, against loss by fire, collision, overturning, collapse of bridges, floods, and perils while crossing inland waters. * * *"

 The plaintiff contends the defendant is "a common carrier" under the provisions of the Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., and therefore the provisions of the contract limiting liability are not effective, in view of the fact that it had not filed with the Interstate Commerce Commission any common carrier tariffs containing provision for limiting liability. The defendant contends that it is a contract carrier, under the provisions of the Act of 1935, and that, therefore, its contract with the plaintiff was a valid contract.

 We submitted to the jury the question of whether or not the defendant was, in fact, a common carrier, and instructed the jury that if it was found to be a common carrier, the plaintiff was entitled to recover the value of the goods demolished. The jury, finding the defendant to be a common carrier, assessed the value of the plaintiff's goods demolished by the overturning of the truck at $3,816.

 The defendant urges that this Court erred in submitting this question to the jury, and that we should have determined as a matter of law that the defendant was a contract carrier, and that as the plaintiff had failed to present any evidence of want of care, we should have directed a verdict for the defendant.

 We are of the opinion that the case was properly submitted to the jury. The defendant filed an application with the Interstate Commerce Commission for a permit to operate as a contract carrier, for a certificate to operate as a common carrier, and for a brokerage license. No action had been taken by the Interstate Commerce Commission prior to its contract with the plaintiff on these applications, but in view of Sections 206(a) and 209(a) of the Motor Carrier Act of 1935, 49 U.S.C.A. §§ 306(a), 309(a), both types of operation in which the applicant was engaged, might be lawfully continued pending determination by the Commission on the application. Therefore, at the time it contracted with the plaintiff, the defendant might lawfully operate, both as a common carrier, and as a contract carrier. Which was defendant in its dealings with plaintiff?

 Section 203, subd. (a), par. (14), of the Motor Carrier Act of 1935, 49 U.S.C.A. § 303(a)(14), thus defines a common carrier: "The term 'common carrier by motor vehicle' means any person who or which undertakes, whether directly or by a lease or any other arrangement, to transport passengers or property, or any class or classes of property, for the general public 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 ...


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