Papetti v. Alicandro
| Decision Date | 07 December 1944 |
| Parties | WILLIAM PAPETTI v. BERNADINO ALICANDRO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 25, 1944.
Present: FIELD, C.
J., QUA, DOLAN WILKINS, & SPALDING, JJ.
Carrier, Of goods. Jurisdiction, Public utilities, Carrier. Public Utilities. Practice, Civil, Auditor: amendment of report. Estoppel. No provision of c. 159B, as inserted in G. L. (Ter. Ed.) by St 1934, c.
264, or as amended or as revised by St. 1938, c. 483, repealed by implication the right of any party to a carriage of goods by motor vehicle to bring an action in his own name for an overpayment of a scheduled rate, or for an underpayment even if effected by way of rebate. Per WILKINS, J.
The provisions of G. L. (Ter. Ed.) c. 159B, as amended and revised, did not oust the courts of jurisdiction of an action at law by a carrier of goods by motor vehicle for the difference between an amount received from a shipper and an amount which he should have received according to a reasonable minimum rate legally established under the statute.
Although a motion to strike out a portion of an auditor's report is an appropriate method of seeking an elimination of findings based on alleged errors of law apparent on its face, a motion so to strike out and also to substitute other matter for that struck out was improper even though the matter sought to be substituted was a correct conclusion of law on the auditor's findings; an appropriate method of achieving the result so intended would have been by requests for rulings or instructions at the hearing or trial on the merits.
A carrier of goods by motor vehicle was entitled to maintain an action at law against a shipper for the difference between a sum received from him for services as a common carrier and as a contract carrier and a sum which the plaintiff should have received according to a reasonable minimum rate legally established under G. L. (Ter. Ed.) c. 159B, as amended and as later revised by St. 1938, c. 483, where his evidence showed an arrangement between the parties whereby he at frequent intervals gave statements to the defendant of his charges at the legally established rate, and, whenever such a statement was received, the defendant forthwith paid him at that rate and he as a part of the same transaction paid back to the defendant the difference between the sum so received and an amount which he would receive at a less rate; such transactions resulted in unlawful rebates in violation of the statute.
A carrier of goods by motor vehicle was not estopped to maintain an action against a shipper to recover a portion of a legally established minimum rate which the plaintiff had unlawfully rebated to the defendant in violation of G. L. (Ter. Ed.) c 159B, as amended and as later revised by St. 1938, c. 483.
CONTRACT. Writ in the Central District Court of Worcester dated February 17, 1941.
On removal to the Superior Court, the case was referred to an auditor and was later tried before Beaudreau, J.
C. W. Proctor, for the plaintiff.
H. H. Hartwell & J.
F. Driscoll, for the defendant, submitted a brief.
In this action of contract the plaintiff, a contract carrier and later a common carrier under G. L. (Ter. Ed.) c. 159B, as added by St. 1934, c. 264, and revised by St. 1938, c. 483 alleging that he carried gasoline and fuel oil for the defendant and had been paid less than the minimum rates prescribed by the department of public utilities, seeks to recover the difference between the minimum rates and the amounts actually received. The case was referred to an auditor, findings of fact not to be final, and he filed a report. At a jury trial the judge directed a verdict for the defendant, and the plaintiff excepted.
The auditor's report was in substance as follows: The plaintiff was a contract carrier under St. 1934, c. 264, from February 18, 1937, until July 5, 1938, and continued as such under St. 1938, c. 483, until March 12, 1940, when he became instead a common carrier under the latter act. In both capacities he was authorized to carry gasoline, fuel oil, and similar commodities over the ways of the Commonwealth in motor vehicles. During the entire period the department of public utilities established minimum rates for the carriage of such commodities by contract and common carriers. The plaintiff, when a contract carrier and later when a common carrier, published and filed with the department and kept open for public inspection tariffs showing all rates and charges for the transportation of property and all services for the transportation of gasoline, fuel oil, and similar commodities requiring transportation by means of tank trucks. During this period the plaintiff carried gasoline and fuel oil upon order of the defendant from places in this Commonwealth to the fuel depository of the defendant. At frequent intervals a statement of charges due the plaintiff for carriage at the legally established rate was given the defendant. Whenever such a statement was received, payment in full, in almost every instance by check, was forthwith made to the plaintiff. When each statement was prepared by the plaintiff, he also computed the amount which he would receive at a less rate. After payment was made to the plaintiff at the legal rate, the plaintiff paid the defendant the difference in cash. The respective acts of payment by the defendant and by the plaintiff took place upon the same occasion, usually at the defendant's place of business. This practice was acquiesced in by both parties. The third paragraph of the auditor's report, with brackets supplied to show the effect of a motion quoted below, was: "The plaintiff seeks to recover the amount of money so rebated, which in the aggregate was $1,159.51. He relies upon the legal proposition that where minimum rates for the charges of carriers are duly established, as in this case, the carrier is entitled to recover the legal established minimum rate. [I conclude upon the foregoing facts that the plaintiff has received for the services rendered payment in accordance with the legally established minimum rate, even though there was a voluntary rebate immediately after payment and there should be judgment for the defendant. If, however, my conclusion is wrong, and the facts I have found do not amount to a payment to the plaintiff, and there is no legal bar to the plaintiff's recovery under these circumstances, the plaintiff should receive the difference between the amount received by the plaintiff and the amount to which he is entitled, or $1,159.51. The difference between the amount received by the plaintiff while he was a contract carrier under the provisions of Chapter 264 of the Acts of 1934 and the amount to which he is entitled during this period is $232.11; and the difference between the amount received by the plaintiff while he was a contract carrier under the provisions of Chapter 483 of the Acts of 1938 and the amount to which he is entitled during this period is $624.60; and the difference between the amount received by the plaintiff while he was a common carrier under said act and the amount to which he is entitled during this period is $302.80, or a total of $1,159.51.
There should be judgment for the plaintiff in such amount as the court may rule he is entitled to recover while transporting under any or all of said periods.]"
The portion of the foregoing quotation enclosed in brackets was the subject of the following motion: "Plaintiff moves that the auditor's report be amended by striking out everything after the first two sentences in paragraph 3 and substituting therefor the following: `Upon the foregoing facts the plaintiff received [sic] a rebate for services rendered or less than the legally established minimum rate and is therefore entitled to recover the difference or the sum of $1,159.51 made up as follows: as a contract carrier under Chapter 264 of the Acts of 1934, $232.11; as a contract carrier under Chapter 483 of the Acts of 1938, $624.60; and as a common carrier under said act, $302.80.'" The motion was heard by a judge, who denied it. The plaintiff did not except or appeal. Subsequently the case was reached for trial before a judge sitting with jury. Before the jury was empanelled the plaintiff filed a motion which was identical with the earlier motion. The judge refused to accept the motion for the reason that it had been previously presented, The plaintiff excepted. The jury was empanelled, and the plaintiff offered in evidence and read the auditor's report, and rested. The judge stated that he would direct a verdict for the defendant. The defendant's counsel said that he had not rested, and that he desired to introduce evidence in contradiction of the facts found by the auditor. The judge directed a verdict for the defendant, and the plaintiff excepted. The parties stipulated,
1. The defendant challenges the jurisdiction of the courts on the ground that the subject matter is exclusively confided to the department of public utilities, which, it is contended, is invested by G. L. (Ter. Ed.) c. 159B with "complete jurisdiction, control and supervision of all carriers by motor vehicles for hire of property within the Commonwealth." Assuming this to be true as a general proposition, it does not follow that the statute has ousted the courts of...
To continue reading
Request your trial