The opinion of the court was delivered by: DUSEN
The trial judge makes the following Findings of Fact and Conclusions of Law:
1. Plaintiff, a corporation organized and existing under the laws of the State of Delaware, is a common carrier engaged, inter alia, in the interstate carriage of goods, and is subject to the provisions of the Interstate Commerce Act and its amendments and to the regulations of the Interstate Commerce Commission (Complaint, par. 1).
2. Defendants, Thomas J. Holt and Israel Sussman, trade under the partnership name of Thomas J. Holt Company with its principal place of business at 208 Walnut Street, Philadelphia 6, Pennsylvania (Complaint, par. 2).
3. On May 13, 1953, the Hitchcock Company, of Salinas, California, shipped collect 840 cartons of lettuce from Salinas, California, to Philadelphia, Pa., via the plaintiff's transportation facilities (Complaint, par. 4, and Exhibit P-1).
4. Plaintiff's agent at Salinas, California, supervising the handling of carloads of perishable traffic determined the weight of the shipment at origin for purposes of assessing express charges (Deposition of Clark, pp. 2, 5).
5. Such total weight was the estimated total weight and was determined to be 34,944 pounds. The weight per carton, for billing purposes, was determined as 41.6 pounds (Deposition of Clark, pp. 6, 7; Exhibit P-1).
6. The process for arriving at the estimated weight was to weigh two groups of five cartons selected at random from the Hitchcock shipment (215 and 211 pounds, respectively), total the weight (426 pounds), divide by ten (42.6 pound-per-carton average), and then deduct one pound per carton to allow for the moisture drawn off in the cooler, resulting in the 41.6 pound-per-carton weight used for billing (Clark deposition, pp. 7-9, 13, 14, 15).
7. At the shipping point and time of this shipment, plaintiff did not have facilities for weighing the railroad car loaded and empty to determine the weight of the lading (Clark deposition, p. 10).
8. When this shipment was made, the volume of traffic at the Agency receiving point was very heavy and all the cartons could not have been weighed separately without delaying the forwarding (Clark deposition, p. 10).
9. The shipper did not furnish the plaintiff with any statement or estimate of the weight of each carton loaded, but no request for such information was made (Clark deposition, pp. 10, 12).
10. The plaintiff duly delivered said 840 cartons of lettuce to its destination, where it was accepted by the consignee, the defendants named herein, which consignee by such acceptance became liable to plaintiff for the freight charges from Salinas, California, to Philadelphia, Pa. (Complaint, par. 8).
11. Plaintiff has demanded payment from defendants of the sum of $ 1,501.04, which was the total charge computed by plaintiff for this shipment (see P-1), but defendants have denied the right of plaintiff to any sum in excess of $ 1,213.92, which sum has been paid.
12. By the provisions of an Act of Congress approved February 4, 1887, entitled 'An act to regulate commerce,' and its amendments and supplements, every common carrier subject thereto is required to file with the Interstate Commerce Commission, and print and keep open for public inspection, schedules showing all rates, fares, and charges for transportation between points on its own route and between points on its own route and points on the route of any other carrier. The shipper and carrier are alike bound by established and published tariff rates under provisions of §§ 3(2) and 6(7) of the Interstate Commerce Act (49 U.S.C.A. §§ 3(2) and 6(7)). Said Act further provides that the term 'transportation' as used in the Act shall include all instrumentalities of ...