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RICHARD H. HIGHTOWER v. BEKINS VAN LINES CO. (06/29/79)

decided: June 29, 1979.

RICHARD H. HIGHTOWER
v.
BEKINS VAN LINES CO., APPELLANT



No. 1427 OCTOBER TERM, 1978, Appeal from the Order of the Court of Common Pleas, Trial Division -- Law, of Philadelphia County, at No. 2543 July Term, 1971.

COUNSEL

Denis V. Brenan, Philadelphia, for appellant.

Leonard S. Wissow, Philadelphia, for appellee.

Van der Voort, Wieand and Lipez, JJ.

Author: Van Der Voort

[ 267 Pa. Super. Page 590]

I. On the Appellee's Application to Dismiss the Appeal or to Strike Matters from Appellant's Brief

We will not grant the Application to Dismiss the Appeal, and will consider the appeal on its merits. We tend to agree with appellee that the appellant's reference to an insurance company as the real party in interest is inconsistent with the record, as established by the pleadings filed by the parties; but we note (page 55 of the transcribed oral argument before Judge Chalfin) that defendant's attorney stated in the lower court, without challenge, that "this is a subrogation case."

Whether the "real party in interest" is, completely or partially, Major Hightower, or an insurance company, or the United States Government ought not, and we trust has not affected the exercise of judgment by Judge Chalfin, or by this Court, in the resolving of a question of law on a stated case.

II. On the Merits of the Case

This is an action in assumpsit submitted to the lower court on the following stipulation of facts:

"On June 10, 1969, plaintiff, a Major in the United States Army, under government contract authorized the government to move his goods which were shipped by the defendant, a Government approved Motor Vehicle Common Carrier from Los Angeles, California to Philadelphia, Pennsylvania. The shipment was made under Government Bill of Lading No. F0212852 and Uniform Household Goods Bill of Lading No. 152932. Neither Bill of Lading was signed by plaintiff. True copies of both Bills of Lading are attached hereto and may be considered to be admitted into evidence as Exhibits 'A' and 'B', respectively. Shipping charges were not prepaid.

[ 267 Pa. Super. Page 591]

Defendant was operating under the authority of, and subject to, the regulations of the Interstate Commerce Act, 49 USCA Sec. 1 et seq., as amended by the Second Cummins Amendment and the Cormack Amendment, 49 USCA Sec. 319, et seq. and Sec. 22 of Interstate Commerce Act.

When plaintiff's shipment was delivered at its destination, it was discovered that certain articles of household goods were missing and others were damaged and broken. The amount of the full actual loss and damage to plaintiff's goods was $14,868.83 and the sole question presented to the Court for judgment is one of law: whether defendant is liable to plaintiff in damages for this amount or whether the amount of its liability has been effectively limited by the provisions of Sec. 20(11) of the Interstate Commerce Act, as amended, 49 USCA Sec. 20(11).

Also deemed to be admitted into evidence as Exhibits 'C', 'D', 'E' and 'F', respectively, copies of which are attached hereto, are the Interstate Commerce Commission's Released rates Order No. MC-505 entitled 'Released Rates of Motor Common Carriers of Household Goods' and part 176 'Transportation of Household Goods in Interstate or Foreign Commerce' contained in Code of Federal Regulations Title 49 -- Transportation, parts 165 to end. Revised as of January 1, 1967 and 'Military Rate Tariff 1E' and No. 126-A, MF-I.C.C. No. 142. True copies of this order and the section of the Code of Federal Regulations are attached hereto.

In accordance with the facts stated here, the documents in evidence and the law (which will be presented and argued by briefs of counsel), the Court is requested to enter judgment in one of the following alternatives:

(a) If the Court be of the opinion that plaintiff is entitled to recover the full actual loss and damage to the shipment, then judgment is to be entered for plaintiff in the sum of $14,868.83; or

(b) If the Court is of the opinion that the liability of defendant is limited to an amount not exceeding $1.25

[ 267 Pa. Super. Page 592]

    times the weight of the shipment in pounds, then judgment is to be entered for plaintiff in the amount of $6,650.00; or

(c) If the Court be of the opinion that the liability of defendant is limited to an amount not exceeding $.60 per pound, then judgment is to be entered for plaintiff in the amount of $3,192.00.

Judgment shall be in the amount as decided by the Court, with interest from July 29, 1969, if the Court ...


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