McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c.
This appeal is taken from a judgment entered in favor of the defendant by the Hudson County District Court sitting without a jury.
Plaintiff is a retail coal dealer in the City of Elizabeth. It is an established practice of retail coal dealers to purchase coal from producers in Pennsylvania, which coal is transported to the yards of the dealers by railroads. The usual manner in which the transaction takes place is as follows. The railroad company receives the coal which has been purchased by the retail dealer at the point of origin. The coal is loaded into open cars and weighed by the railroad at said point. The cars are weighed while empty and again when filled, the difference being the net weight of the contents. At this point a waybill (similar to a bill of lading) is issued to the purchaser which specifies the net weight of the contents of the car. The purchaser (retail dealer) pays the shipper for the coal and the carrier his freight charges based on the weight of the coal as specified in the waybill.
The plaintiff commenced this action on August 10, 1950, claiming damages in the amount of $540.86 for actual loss of
coal occurring during certain shipments. The complaint alleged that 94 carloads of coal which were delivered by the defendant railroad under dates in 1949 and 1950 contained less coal when reweighed by defendant at plaintiff's request at point of destination, than when weighed at point of origin. There is attached to the complaint a schedule prepared by the plaintiff which sets forth, among other things, the number of each of the 94 cars, the weight at point of origin, the weight at destination, the net loss in weight, the cash amount due as a result of such alleged loss of coal, and the date the claim for such shortage was rejected by the defendant railroad.
At the pretrial, it was admitted by both litigants that the alleged loss of coal in each case amounted to less than 1 1/2% of the total net weight of the contents of each car. The defendant admitted the accuracy of the schedule but denied that the difference in weight indicated on the schedule is an actual loss of coal, but contended rather that the difference was due to other factors. Defendant further contended that a tariff tolerance allowance of 1 1/2% contained in a schedule filed with the Interstate Commerce Commission applied to damage claims for actual loss of coal and constitutes a bar to liability and recovery for any weight disparity which is less than 1 1/2% of the weight at origin.
At the trial Harry A. Toker, president of the plaintiff company, testified as to the facts contained within the schedule annexed to the complaint. He also explained that whenever a shipment was found to weigh less at point of destination than at point of origin a claim for actual loss was made to the defendant railroad. There was admitted into evidence a letter sent by the railroad rejecting certain of these claims wherein the difference in weight was less than 1 1/2% of the weight of the coal. The letter states that "* * * the loss in each instance is under the tolerance. Therefore, in view of our clear record of handling these cars, we are obliged to disallow these claims." It was admitted, however, that whenever the difference in weight exceeded 1 1/2%
the defendant paid for the full amount of difference in weight as an actual loss.
Defendant produced an expert witness who testified that the weight differential between weighings at point of origin and point of destination which do not exceed 1 1/2% of the total net weight of the contents of the open car are deemed to be due to numerous factors, such as variations in scales due to mechanical deficiencies, weather conditions, differences in the manner of weighing and differences in the persons who do the weighing, rather than to any actual loss of material.
In rebuttal, plaintiff introduced an expert in the field of interstate commerce practice who testified that the tariff tolerance relates solely to freight rates and in no way relates to loss of coal in shipment. He further testified that the I.C.C. has held that it has no jurisdiction on losses for claims for damages, and that there are no cases holding that tolerances do not apply to actual loss because the I.C.C. would not even entertain such a complaint.
The lower court, after consideration of the testimony and arguments, found that the plaintiff had failed to sustain the burden of proving an actual loss of coal by merely showing that there was a difference of less than 1 1/2% between the weight at origin as shown by the waybill and the weight at ...