Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co., No. 202

CourtCourt of Appeals of Maryland
Writing for the CourtBefore COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and FLOYD J. KINTNER; COLLINS
Citation214 Md. 18,133 A.2d 59
Decision Date18 June 1957
Docket NumberNo. 202
PartiesSHIRKS MOTOR EXPRESS CORPORATION v. FORSTER TRANSFER & RIGGING COMPANY, Inc.

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214 Md. 18
133 A.2d 59
SHIRKS MOTOR EXPRESS CORPORATION
v.
FORSTER TRANSFER & RIGGING COMPANY, Inc.
No. 202.
Court of Appeals of Maryland.
June 18, 1957.
Rehearing Denied Sept. 24, 1957.

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[133 A.2d 60] William B. Dulany, Baltimore (Bladwin, Jarman & Norris, Baltimore, on the brief), for appellant.

Edwin A. Gehring, Baltimore (James J. Doherty, Baltimore, on the brief), for appellee.

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Before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and FLOYD J. KINTNER, Special Judge.

COLLINS, Judge.

This case presents for decision the question of proper charges for transportation of freight.

During the summer of 1953 the United States Government, Department of the Army, (the Government), accepted bids 'for furnishing the necessary drivers, riggers, helpers, packers, etc., and tractors, trailers & rigging equipment, in sufficient quantities to pack, package and transport * * * Signal Corps and miscellaneous equipment and Supplies stored at Utility Electronics Corporation, 231 Grant Avenue, East Newark, New Jersey', to be delivered F. O. B. destination to various points.

Appellant, Shirks Motor Express Corporation, and appellee, Forster Transfer and Rigging Company, Inc., were both interstate common carriers by motor vehicle. Appellee made a bid on the Government's proposal and was awarded the contract to move equipment from the Electronic plant to various destinations. Appellee itself transported substantial portions of the freight under this contract to Baltimore. The contract specified, however, that a portion of the freight was to move to Tobyhanna Signal Depot, Tobyhanna, Pennsylvania, and to New Cumberland General Depot, New Cumberland, Pennsylvania.

Appellee did not hold authority from the Interstate Commerce Commission (the Commission), to perform the required transportation to Tobyhanna, Pennsylvania, or to New Cumberland, Pennsylvania. Appellant held a certificate of public convenience and necessity from the Commission authorizing it to transport general commodities from East Newark, New Jersey, to Tobyhanna and New Cumberland, Pennsylvania. Appellee requested appellant to transport the seven truckloads of freight, the subject of this case, two of which were destined to Tobyhanna and five of which were

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destined to New Cumberland. Appellee loaded the freight on appellant's vehicles and executed shipping orders on the bill of lading forms customarily used by motor carriers, with respect to each of the seven truckloads of freight.

[133 A.2d 61] Not only did the appellant know that the transportation was for the Government but knew as much as did the appellee concerning the identity of the commodities, which were packed in sealed containers prior to shipment. In addition the appellee, on two occasions before the subject transportation occurred, conveyed to appellant all information in its possession regarding identity of the freight, whereupon appellant agreed to transport the freight at $.44 cwt. to Tobyhanna Signal Depot. This rate was modified to $.65 cwt. at the time of or after the movement occurred. Appellant also agreed to transport the freight at $.50 cwt. to New Cumberland, Pennsylvania. The agreed rate was not just for 'nuts and bolts' (five of the seven shipping orders herein described the commodities as 'nuts and bolts, etc.') but for the miscellaneous equipment, supplies, etc., located at the Utility Electronics Corporation, East Newark, New Jersey, regardless of identity of individual items. Relying on this agreed rate, appellee made its bid to the Government and was awarded the contract to move all equipment from the Electronics plant to various destinations. These rates, to which appellant agreed and on which appellee relied when making its bid, as later modified, were paid in full by appellee.

Appellee admitted that it was the shipper on each of the movements and that it was to prepay the freight charges on each of the movements. Appellant admitted, for the purpose of this appeal, that it knew beforehand that it would be transporting freight which appellee had contracted to move for the Government, though it did not know the terms and contents of the contract.

Appellee described the commodities in the shipping orders as 'Nuts and Bolts' in two instances, and as 'Nuts, Bolts, etc.' in five instances. Appellant billed the traffic as 'Nuts and Bolts' and appellee paid to appellant those charges. Appellant learned that the freight did not consist entirely of nuts and bolts. The commodities shipped to

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Tobyhanna were chairs and tables 'and other articles classified same or lower', and those shipped to New Cumberland were electrical appliances or instruments 'and other articles classified same or lower'. According to testimony of appellant's witness, this resulted in additional charges due appellant totaling $1,336.06, plus interest from August 29, 1953. The issue of damages, however, was not finally determined by the trial judge.

Appellant's witness testified that the shipping orders constituted the contracts between appellant and appellee, and that it was bound by its tariffs on the movements as a matter of law because it was not performing carriage for the Government within the purview of Section 22, Part I, Interstate Commerce Act, hereinafter referred to as 'the Act', (49 U.S.C.A. § 22), hereinafter referred to as 'Section 22'. Appellant therefore seeks payment of its published tariff rate based on a corrected description of the commodities.

Suit was therefore entered for appellant, as plaintiff, against appellee, as defendant, for the rates as specified in the tariffs in effect at that time. Appellee claimed that, as Section 22 governed, its contract rates with appellant were the correct charges which it had paid. The trial judge sustained the position taken by appellee holding that appellant was not governed by its tariffs on the shipments in question, as Section 22 applied, and entered judgment for the appellee, defendant, for costs. From that judgment, appellant, plaintiff, appeals.

It is admitted by all the parties that an interstate common carrier is required to collect its published tariff rate for freight transportation unless the transportation falls within the exemption set forth in Section 22. United States v. Interstate Commerce Commission, 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211, decided December 17, 1956.

It is provided by the Act, Part II, Section 217(b), (49 U.S.C.A. § 317(b), [133 A.2d 62] (hereinafter referred to as 'Section 317(b)'):

'No common carrier by motor vehicle shall charge or demand or collect or receive a greater or

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less or different compensation for transportation or for any service in connection therewith between the...

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10 practice notes
  • Consolidated Exp., Inc. v. New York Shipping, Inc., Civ. A. No. 76-1645
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 11, 1978
    ...made in violation of the Interstate Commerce Act would be void and unenforceable. See Shirks Motor Express Corp. v. Forster T & R Co., 214 Md. 18, 133 A.2d 59 Whether the issue is framed in terms of an illegality defense or a lack of standing to sue, the ILA's uncontradicted allegations tha......
  • Adams v. Manown, No. 2
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...at law, relying on Messick v. Smith, 193 Md. 659, 69 A.2d 478 (1949) and Shirks Motor Express Corp. v. Forster Transfer & Rigging Co., 214 Md. 18, 133 A.2d 59 (1957). The intermediate appellate court then concluded that, as a matter of law, the doctrine completely barred Adams's claims. In ......
  • Len Stoler, Inc. v. Volkswagen Grp. of Am., Inc., Case No. 1:15–cv–1659
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • January 25, 2017
    ...may, in some circumstances, support such affirmative defenses. See, e.g. , Shirks Motor Express Corp. v. Forster Transfer & Rigging Co. , 214 Md. 18, 29, 133 A.2d 59 (1957) (holding that a party "having entered into [an] illegal contract with the [opposing party] was in pari delicto ... and......
  • Bourgeois v. Live Nation Entm't, Inc., Misc. No. 8
    • United States
    • Court of Appeals of Maryland
    • January 18, 2013
    ...Md. 24, 30–31, 116 A. 836, 839 (1922), Van Meter v. Wilkinson, 187 Md. 492, 498, 50 A.2d 557, 560 (1947), and Shirks Corp. v. Forster Co., 214 Md. 18, 30, 133 A.2d 59, 65 (1957). The Harrington Court noted that the reason for allowing the recovery of money paid under a contract still execut......
  • Request a trial to view additional results
10 cases
  • Consolidated Exp., Inc. v. New York Shipping, Inc., Civ. A. No. 76-1645
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 11, 1978
    ...made in violation of the Interstate Commerce Act would be void and unenforceable. See Shirks Motor Express Corp. v. Forster T & R Co., 214 Md. 18, 133 A.2d 59 Whether the issue is framed in terms of an illegality defense or a lack of standing to sue, the ILA's uncontradicted allegations tha......
  • Adams v. Manown, No. 2
    • United States
    • Court of Appeals of Maryland
    • September 1, 1992
    ...at law, relying on Messick v. Smith, 193 Md. 659, 69 A.2d 478 (1949) and Shirks Motor Express Corp. v. Forster Transfer & Rigging Co., 214 Md. 18, 133 A.2d 59 (1957). The intermediate appellate court then concluded that, as a matter of law, the doctrine completely barred Adams's claims. In ......
  • Len Stoler, Inc. v. Volkswagen Grp. of Am., Inc., Case No. 1:15–cv–1659
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • January 25, 2017
    ...may, in some circumstances, support such affirmative defenses. See, e.g. , Shirks Motor Express Corp. v. Forster Transfer & Rigging Co. , 214 Md. 18, 29, 133 A.2d 59 (1957) (holding that a party "having entered into [an] illegal contract with the [opposing party] was in pari delicto ... and......
  • Bourgeois v. Live Nation Entm't, Inc., Misc. No. 8
    • United States
    • Court of Appeals of Maryland
    • January 18, 2013
    ...Md. 24, 30–31, 116 A. 836, 839 (1922), Van Meter v. Wilkinson, 187 Md. 492, 498, 50 A.2d 557, 560 (1947), and Shirks Corp. v. Forster Co., 214 Md. 18, 30, 133 A.2d 59, 65 (1957). The Harrington Court noted that the reason for allowing the recovery of money paid under a contract still execut......
  • Request a trial to view additional results

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