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BOWSER & CAMPBELL v. KNOX GLASS

February 20, 1967

Bowser and Campbell, and Lloyd H. Bowser and Stella Campbell d.b.a. Bowser and Campbell, Plaintiff,
v.
Knox Glass, Inc. Defendant


Marsh, D.J.


The opinion of the court was delivered by: MARSH

MARSH, D.J.:

In this action the plaintiffs, Bowser and Campbell, individually and as a partnership, doing business as a contract motor carrier, seek to recover $26,978.32 *fn1" additional charges for transporting glassware and cartons from the defendant, Knox Glass, Inc. After non-jury trial, the court makes the following:

 FINDINGS OF FACT

 1. Plaintiffs in this action are Bowser and Campbell, a partnership, and Lloyd H. Bowser and Stella Campbell, individuals, doing business as Bowser and Campbell, a partnership, hereinafter called Carrier.

 2. Defendant, Knox Glass, Inc. (Knox), is a corporation organized under the laws of the State of Pennsylvania, and has its principal office in Knox, Pennsylvania.

 3. At all relevant times, Carrier was a contract motor carrier regulated by the applicable provisions of the Interstate Commerce Act, and as such contracted with Knox to haul its products from Knox, Marienville, Parker, Oil City, Kane and Sheffield, all points of origin in Pennsylvania, to destination points in Ohio and New York. Knox was a manufacturer of glassware with manufacturing facilities located at Knox, Marienville and Parker, Pennsylvania, and warehouse facilities at Kane and Sheffield, Pennsylvania.

 4. The several shipments of glassware and empty packing cartons shown on plaintiffs' Exhibit 2 were made by Knox as shipper and hauled by Carrier as a contract carrier.

 5. During the period of time here involved, Carrier performed services as a contract motor carrier for Knox pursuant to a written transportation agreement dated May 14, 1958, executed by both parties, Carrier and Knox (defendant's Ex. F).

 6. The transportation agreement (Ex. F) provided that the Carrier would be compensated for transportation service in accordance with "'MC 1218, MF-I.C.C. No. 3 Schedule of Charges for Transportation as a Contract Carrier', supplements thereto and reissues thereof."

 7. "MC 1218, MF I.C.C. NO. 3 SCHEDULE OF CHARGES FOR THE TRANSPORTATION, AS A CONTRACT CARRIER" was issued April 28, 1958, effective May 1, 1958 (plaintiffs' Ex. 1; defendant's Ex. C). This schedule was in effect during the period of time here involved. The schedule did not contain a written rule or regulation affording Knox the privilege of stopping a shipment to complete loading. (See: Ex. C, p. 4, Item 40(A).)

 8. Despite the absence in the Schedule of Charges of a regulation allowing the privilege of stopping in transit, the Carrier, as a contract motor carrier, during the period of time here involved and prior thereto, had afforded Knox and its predecessor, Knox Glass Associates, Inc., stopping for loading and unloading privileges in connection with the movement of the Knox products.

 9. For all of the shipments shown on Carrier's Exhibit 2, Knox paid Carrier an agreed charge of $6, later $10, for additional stops at the Pennsylvania Knox plants to complete loading of goods. The freight charges were always computed on the aggregate weight of the shipment in Carrier's truck as it proceeded to destination. (Pretrial Stipulation, p. 3; T., pp. 56-57; Plaintiffs' Exs. 2, 4, 5, 6, 7.)

 10. In the agreement executed between Carrier, by Harold R. Bowser, its authorized representative, and Knox, dated August 21, 1964 (defendant's Ex. G), Carrier admitted that the freight charges which it collected from Knox during the period involved in this suit were the charges agreed upon by the parties. *fn2" In addition, Mr. Bowser, appearing as a witness for Carrier, admitted in his testimony that the charges collected were the charges which Carrier had intended to charge and which the parties had agreed upon.

 11. The Schedule of Charges MC 1218, MF I.C.C. NO. 3 (defendant's Ex. C) was supplemented effective January 25, 1964, to provide a published rule permitting defendant to stop a shipment to complete loading (defendant's Ex. D) in conformity with the long-existing ...


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