Mt. Tom Motor Lines v. McKesson & Robbins
| Decision Date | 22 November 1949 |
| Citation | 325 Mass. 45,89 N.E.2d 3 |
| Parties | MT. TOM MOTOR LINES, Inc. v. McKESSON & ROBBINS, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued Sept. 21 1949.
C E. Drapeau, Holyoke, for plaintiff.
R. T. King Springfield, for defendant.
Before QUA, C. J and LUMMUS, RONAN, WILKINS, and COUNIHAN, JJ.
This is an action of contract to recover additional payment for the transportation and delivery of the defendant's goods from January 2, 1944, to August 21, 1946. The plaintiff appealed from the denial of its motion to recommit the report of an auditor whose findings were to be final, from the denial of its motion for judgment on the auditor's report, and from the ordering of judgment for the defendant.
The defendant, a large manufacturer and distributor of drugs, has a branch office, warehouse and salesroom in Springfield, and since 1931 and up to January 2, 1944, it had engaged one Ertel doing business under the name of Sauer's Express, to deliver merchandise the defendant had sold to retail drug stores in Hampden and Hampshire counties, paying him at different rates for deliveries made in three different zones or districts into which these counties were divided depending upon their respective distances from the defendant's place of business. The plaintiff, having purchased Ertel's business in December, 1943, notified Ertel's customers, including the defendant, and sought the continuance of their business. It began to make deliveries for the defendant on January 3, 1944, the first business day after it had taken over Ertel's business, and conducted the business in the same manner as had Ertel, receiving the same rate of compensation as had been paid to him until March 30, 1944, when by mutual consent the rates were increased and continued until the parties ceased to do business with each other in August, 1946. The department of public utilities issued on January 4, 1944, an irregular route common carrier certificate to the plaintiff, and on January 18, 1944, it approved a transfer to the plaintiff of Ertel's certificate as a regular route common carrier. The plaintiff filed with the department on March 30, 1944, tariffs [1] pertaining to the rates for work done by it for the defendant, to be effective on May 1, 1944, which stated rates higher than those paid by the defendant. The defendant knew that when the plaintiff began to transport its goods it was necessary for the plaintiff to have a certificate from the department, but it did not know the form of the certificate which had been issued to Ertel or to the plaintiff or the rates filed by the plaintiff; neither did it know that Ertel or the plaintiff never had a permit as a contract carrier. During the period that the plaintiff was transporting goods for the defendant, the plaintiff did business with other shippers charging them different rates both for the delivery of goods and for commissions for collecting the price from customers when cash was paid on delivery. These collections of cash were paid over by the plaintiff's operator to the defendant the day after they were received by him in accordance with the agreement between the plaintiff and the defendant. The moneys so collected did not go through the office of the plaintiff. The auditor found that the plaintiff was acting as a contract carrier in furnishing transportation for the defendant, and that therefore the defendant was not indebted to the plaintiff.
This general finding, which the auditor expressly based upon his subsidiary findings, must stand if supported by such findings together with such inferences as may be properly drawn from them where these findings are not inconsistent with each other and are not vitiated by any error of law appearing on the face of the report. Galluzzi v. Beverly, 309 Mass. 135, 34 N.E.2d 492; Mahoney v. C. & R. Construction Co., 311 Mass. 558, 559, 42 N.E.2d 255; Benjamin Foster Co. v. Commonwealth, 318 Mass. 190, 193, 61 N.E.2d 147, 166 A.L.R. 925.
The distinction between a common carrier and a private or contract carrier has been frequently stated. Houle v. Lewonis, 245 Mass. 254, 140 N.E. 427; Haddad v. Griffin, 247 Mass. 369, 142 N.E. 74; Dion v. Drapeau, 254 Mass. 186, 150 N.E. 14; Commonwealth v. Boston & Maine Transportation Co., 282 Mass. 345, 349, 185 N.E. 40. A common carrier is one who holds himself out as furnishing transportation to any and all members of the public who desire such service in so far as his facilities enable him to perform the service, while a contract carrier does not furnish transportation indiscriminately but furnishes it only to those with whom he sees fit to contract. Paine Furniture Co. v. Acme Transfer & Storage Co., 290 Mass. 195, 195 N.E. 302; United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567; Steele v. General Mills, Inc., 329 U.S. 433, 67 S.Ct. 439, 91 L.Ed. 402; Ace-High Dresses, Inc. v. J. C. Trucking Co., Inc., 122 Conn. 578, 191 A. 536, 112 A.L.R. 86; Trudeau v. Pacific States Box & Basket Co., 20 Wash.2d 561, 148 P.2d 453. This difference is recognized in § 2 of G.L. (Ter.Ed.) c. 159B, as appearing in St.1938, c. 483, § 1, as amended, the chapter regulating the transportation for hire of goods by motor vehicles. A carrier may be a common carrier as to one part of its business and a special or contract carrier in another part. Terminal Taxicab Co., Inc. v. Kutz (Public Utilities Commission of the District of Columbia), 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann.Cas.1916D, 765; Commonwealth v. Boston & Maine Transportation Co., 282 Mass. 345, 349, 185 N.E. 40; Rugg v. Davis, 320 Mass. 388, 391, 69 N.E.2d 579. A carrier may be issued a certificate to conduct the business of a common carrier and also a permit to engage in the business of a special or contract carrier. G.L. (Ter.Ed.) c. 159B, § 8.
The holding of a certificate authorizes one to act as a common carrier in accordance with the terms and provisions of the statute, G.L. (Ter.Ed.) c. 159B, § 3, as amended, and he is expected to conduct his business in conformity thereto, but it does not necessarily follow that every transportation of goods is undertaken by him as a common carrier and not as a special or contract carrier, even though in that case the carrier would be subject to the penalty provided by G.L. (Ter.Ed.) c. 159B, § 21. Rugg v. Davis, 320 Mass. 388, 69 N.E.2d 579; Sea Ins. Co. v. Sinks, 7 Cir., 166 F.2d 623, 625; Trudeau v. Pacific States Box & Basket Co., 20 Wash.2d 561, 148 P.2d 453.
One to whom a certificate has been granted is bound to collect and the shipper to pay the established rates for the service rendered, and neither is excused through fraud, accident, mistake or any other cause from collecting or paying the said rates. The holder of a permit as a contract carrier is under the same obligation and so is the one for whom the transportation is performed. G.L.(Ter.Ed.) c. 159B, §§ 6, 7, 19. Papetti v. Alicandro, 317 Mass. 382, 58 N.E.2d 155; New York Central & Hudson River Railroad v. York & Whitney Co., 256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016; Steele v. General Mills, Inc., 329 U.S. 433, 67 S.Ct. 439, 91 L.Ed. 402. Where he is in fact acting in the latter capacity, he cannot claim the benefits that would otherwise accrue if he were rendering services as a common carrier. Whether the carrier is acting as a common carrier or a contract carrier depends upon all the circumstances under which the transportation is furnished, and presents a question of fact where the evidence is conflicting. First National Stores, Inc. v. H. P. Welch Co., 316 Mass. 147, 150, 55 N.E.2d 200; Rugg v. Davis, 320 Mass. 388, 391, 69 N.E.2d 579.
The arrangement which the defendant had since 1931, when Ertel first began to deliver its goods, continued without interruption during the entire period after the plaintiff succeeded to Ertel's business. The plaintiff charged and was paid the same rates as had been previously charged by and paid to Ertel excepting only that the rates were increased in 1944. On one hand, there is hardly any occasion to make an executory contract with a common carrier as he is bound to furnish transportation in accordance with the provisions of the statute and to demand and collect the rates filed with the department, G.L. (Ter.Ed.) c. 159B, §§ 6, 19, while on the other hand there is necessity for such a contract if the transportation is to be performed by a special or contract...
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