Berger v. Dynamic Imports, Inc.

• Decision Date: 18 February 1966
• Citation: 51 Misc.2d 988,274 N.Y.S.2d 537
• Parties: Stanley BERGER, Plaintiff, v. DYNAMIC IMPORTS, INC., Defendant. Term, Part 44
• Court: New York City Court

Page 537

274 N.Y.S.2d 537

51 Misc.2d 988

Stanley BERGER, Plaintiff, v. DYNAMIC IMPORTS, INC., Defendant.

Civil Court of the City of New York, New York County, Trial

Term, Part 44.

Feb. 18, 1966.

Amend & Amend, New York City, for plaintiff.

William L. Olshan, New York City, for defendant.

ALEXANDER SALOTTOLO, Judge.

This is an action brought to recover the sum of $2,457.32 in cartage charges for three separate shipments of defendant's merchandise from New York to California, which shipments were made and which sum in payment therefor was duly demanded by plaintiff and refused by defendant. Defendant's refusal of payment is based upon several grounds, only one of which merits any lengthy consideration in this opinion.

In the main, the question raised by defendant as an affirmative defense is whether plaintiff has acted in violation of the Interstate Commerce Act, 49 U.S.C.A., § 1 et seq. with respect to these three shipments and, if so, whether such conduct on his part renders the respective contracts void and unenforceable at plaintiff's instance.

The resolution of this question has not been an easy matter because of the paucity of case law on the subject and because of the lack of clarity in the language of the Federal statutes in point with regard to the consequences of their violation. In spite of this difficulty, a decision had to be made, and in arriving at it, the court has relied solely upon the testimony and evidence presented in the case with due regard for the Federal legislation involved and with a desire to serve the interests of justice.

The court declines to take judicial notice, as was requested by defendant, of the fact that a proceeding is pending now in the United States District Court for the District of New Jersey wherein the Interstate Commerce Commission is plaintiff and Stanley Berger, the plaintiff here, as well as Dependable Shippers Association, among others, are defendants. While a court in New York will take judicial notice of its own record of the proceeding of the case before it (Williams v. Kauderer, 5 Misc.2d 152, 165 N.Y.S.2d 560), as well as of its own records, not only of the case before it but also of cases involving one or more of the same parties or even totally different parties (Newitt v. Newitt, 282 App.Div. 81, 121 N.Y.S.2d 311), a court need not take judicial notice of records of proceedings in other actions in other courts (Currier v. Woodlawn Cemetery, 300 N.Y. 162, 90 N.E.2d 18). Formal proof thereof is required and, as such, the records in the other court must be introduced as evidence. Even so, there is nothing to judicially notice here except the fact that an action is pending elsewhere against this plaintiff for the same alleged conduct which is the basis of defendant's affirmative defense. Under our system of jurisprudence, one's innocence is presumed until guilt is established, and, therefore, the other proceeding can bear no weight upon the decision of the court in this matter.

The court is of the opinion that plaintiff has violated Federal law in at least two respects with regard to the shipments made here in that he acted as (1) a broker for shipment in interstate commerce without possessing the permit or license required by section 311(a) of Title 49, 49 U.S.C.A. § 311(a), and as (2) a freight forwarder in interstate commerce within the meaning of section 1002(a)(5) of Title 49, 49 U.S.C.A. § 1002(a)(5), without possessing the permit or license required by section 1010 of Title 49, 49 U.S.C.A. § 1010; Shippers Co-op., Inc. v. Interstate Commerce Commission, 9 Cir., 308 F.2d 888. Implicit within such determinations is the finding that plaintiff's conduct with respect to the three shipments effected here has been more than 'casual' or 'occasional', and therefore plaintiff is not specifically exempted from the scope of Title 49 by section 303(b)(9) of Title 49, 49 U.S.C.A. § 303(b)(9).

However, the record is devoid of sufficient evidence from which it may be inferred reasonably that plaintiff falls within the definition of a 'common carrier by motor vehicle' under section 303(a)(14) of Title 49, 49 U.S.C.A. § 303(a)(14). Thus, the court declines to hold that plaintiff has held himself out 'to the general public (emphasis added) to engage in the transportation by motor vehicle in interstate * * * commerce of * * * property * * * for compensation * * *', supra.

Having found at least two violations of Federal law with respect to the shipments made here, the question put to the court for resolution is whether such conduct on plaintiff's part renders the contracts void and unenforceable at its instance.

Title 49, 49 U.S.C.A., was enacted not only to preserve existing arrangements or competitive practices in interstate commerce but also to be a significant aid in the development of a national transportation policy. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544. The purpose of this legislation was to promote public service, dependability and efficiency in the field of interstate motor transportation for hire and to regulate motor carriers in order to attain order and responsibility within the field of motor transportation. Therefore, the Interstate Commerce Act must express sound public policy. Gregg Cartage & Storage Co. v. United States, D.C., 42 F.Supp. 266, aff'd 316 U.S. 74, 62 S.Ct. 932, 86 L.Ed. 1283; Byers Transp. Co. v. United States, D.C., 49 F.Supp. 828; Interstate Commerce Commission v. Consolidated Freightways, D.C., 41 F.Supp. 651.

The contracts sued upon here are violative of Federal law. Courts in the past have enforced agreements made illegal by statute. Hayes v. Magnus-Cutler, Inc., 41 Misc.2d 420, 245 N.Y.S.2d 632; Holmes v. Nationwide Mutual Ins. Co., 407 Misc.2d 894, 244 N.Y.S.2d 148, aff'd 19 A.D.2d 947, 245 N.Y.S.2d 330. Even in these instances, however, the courts have acknowledged that recovery will not be had on such contracts where public policy, as expressed by statute or case law, decrees their unenforceability. Hayes v. Magnus-Cutler, Inc., supra; Holmes v. Nationwide Mutual Ins. Co., supra. As a final word on the matter, the Supreme Court of the United States in Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356--357, 51 S.Ct. 476, 477, 75 L.Ed. 1112, stated that

'(the) principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.'

Even with this caution in mind, in the light of the cases cited and in the light of the facts of this case, the court must conclude that the contracts being sued upon here are unenforceable because they were made in contravention of the public policy of the United States with regard to interstate commerce as expressed in the Interstate Commerce Act, 49 U.S.C.A.

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