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Keiffer v. Food Products Trucking Co.

Decided: March 27, 1962.


Goldmann, Foley and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.


Defendant appeals from a Law Division judgment entered in plaintiff's favor upon a jury verdict, as well as from the denial of its motion for a new trial.

Plaintiff sued to recover alleged underpayments for trucking services rendered defendant company during the years 1952 through 1956, as well as damages resulting from what he claims was his wrongful discharge from its employ. The jury returned a general verdict of $3,203.45 in plaintiff's favor for the underpayments. This figure reflected the several sums it found to be due him in its answers to interrogatories making up its special verdict. The jury found in defendant's favor on the wrongful discharge issue. An accordant judgment was entered.

Defendant then moved for a new trial. The motion was denied, but the trial court reduced the judgment to $2,651.85 in order to correct certain errors discovered in one of the items of the special verdict. Defendant appeals from the money judgment as well as from the order denying its motion for a new trial. Plaintiff does not cross-appeal.

Defendant trucking company, a contract carrier with Interstate Commerce Commission rights, had a contract with Food Fair Stores to transport groceries and produce. Plaintiff leased his truck -- at first a "straight" truck and later, after March 1956, a tractor-trailer -- to defendant under oral contracts from 1952 through 1954, and under

written contracts in 1955 and 1956. Plaintiff agreed, among other things, to operate the leased truck. In return he was to receive a designated percentage of the "revenue earned" by defendant from Food Fair.

Plaintiff's claim of having been underpaid was based on allegations that defendant improperly charged Food Fair, the contract shipper, in five specific categories. The fifth of these need not detain us. It involved a claim that defendant had actually received from Food Fair 8 cents, and not 7 cents, per hundredweight for the intrastate transportation of groceries. Defendant does not contend that the jury's special verdict on this item was incorrect. We may therefore consider this phase of the appeal abandoned.

Defendant argues four main points: (1) the trial court erred in denying its motions for judgment at the close of plaintiff's case and the entire case; (2) the court erred in denying its motion for a new trial; (3) errors in the admission of evidence contributed to the jury verdict, making it inconsistent with substantial justice; and (4) the trial court committed legal errors in its charge.


Plaintiff's first claim was that defendant in specific instances improperly billed Food Fair at the TL (truckload) rate, rather than at the higher LTL (less than truckload) rate for groceries shipped in interstate commerce. This, he says, resulted in his being underpaid.

The TL rate, specified in the ICC schedule filed by defendant, is designed to provide a cheaper rate for one who ships in quantities of 23,000 pounds or more. Plaintiff's expert witness, George A. Olson, testified that if Food Fair shipped a load of more than 23,000 pounds interstate by defendant, and defendant divided the load among several contract truckers so that each picked up and carried less than 23,000 pounds, the TL rate would apply. Defendant's expert, Bort H. Collins, corroborated this; it was the weight of the shipment tendered defendant by the shipper (Food

Fair), rather than the weight actually carried by an individual trucker after the original load was divided up, that determined which rate was applicable.

With regard to the TL vs. LTL rate, we have in the past had occasion to state that the differentiation between truckload and less than truckload shipments was obviously designed to provide a cheaper rate for one who ships in large quantities. For a carrier to break down a large shipment into smaller ones -- for its own convenience and to suit available equipment -- and then charge the shipper on the basis of several partial shipments, would not only thwart the purpose of the rate differential but would unquestionably result in the shipper's soon looking elsewhere for a carrier. The ICC schedule does not compel such an illogical and impractical conclusion, and there is no reason why it should be inferred.

It was plaintiff's burden to establish a prima facie case by showing that the less than 23,000-pound loads for which he claims he was underpaid because defendant charged Food Fair the lower TL rate, were the very loads which Food Fair initially turned over to defendant for interstate carriage. Plaintiff produced a two-page summary (Ex. P-3) listing alleged loads of under 23,000 pounds for which he had been paid on the basis of the TL rate. These represented loads carried from New Jersey to New York City and Brooklyn. However, he failed to present any evidence whatever of the weight of the shipments which Food Fair had originally turned over to defendant. The weight of these shipments was the determinant, under what we have previously said on the subject (see preceding paragraph) as well as the uncontroverted testimony of the two ICC experts, Olson and Collins. The trial court could well have granted defendant's motion at the close of plaintiff's proofs for failure to establish even a prima facie case. It took a more conservative course and heard the entire case. Cf. Advance Piece Dye Works, Inc. v. Travelers Indemnity Co. , 64 N.J. Super. 405, 415 (App. Div. 1960).

Its motion denied, defendant proceeded to present substantial and uncontroverted proof that Food Fair never gave it a load weighing less than 23,000 pounds to be carried in interstate commerce from New Jersey to New York. One of the four witnesses who so testified, Arthur Jones, pointed out that on occasion there were pick-up orders in New York for delivery to the warehouse in Linden. These pick-up loads might weigh over or under 23,000 pounds, and in the latter case defendant would charge Food Fair the LTL or higher rate. This is confirmed by plaintiff's own exhibit P-4, showing such pick-ups in Brooklyn or New York for the Linden warehouse. He conceded the correctness of the payments for these loads.

At the close of the entire case defendant renewed its motion for judgment, based on plaintiff's failure to establish the size of the orders tendered by Food Fair to defendant for delivery from New Jersey to New York. The motion was denied, and wrongly so. Not only had plaintiff failed to establish a prima facie case, but defendant had additionally shown that the loads Food Fair gave defendant to be carried to New York all exceeded 23,000 pounds.

Recognizing, as we must, that on a motion for judgment -- as on a motion at the close of plaintiff's case -- the trial court must accept plaintiff's proofs as true and give him the benefit of every legitimate inference that might reasonably be drawn therefrom, we are convinced that there was no factual question to go to the jury on this phase of the case. There were no facts that would logically support even an inference that what plaintiff carried on any trip from New Jersey to New York was the complete order which Food Fair gave defendant. Indeed, the proofs eventually were all the other way; Food Fair's complete orders were always in excess of 23,000 pounds.


Plaintiff's second claim was that the intrastate produce he carried was improperly billed by defendant to Food Fair

at $25 the load -- the rate these companies had agreed upon between themselves. The correct billing, he maintains, should have been $35 because he and defendant had agreed that the interstate rate set out in the ICC schedule should apply. Defendant, on the other hand, contends that rates in the tariff filed with the ICC could not possibly be applied to intrastate shipments of produce; that defendant and Food Fair had the right to contract at any price, and that plaintiff was compensated on the basis of the price agreed upon between defendant and Food Fair.

Defendant points to the absence of any proof that plaintiff ever carried a single load of produce in interstate commerce. Plaintiff's attorney admits this, and our own reading of the record confirms it. Defendant also contends, as it did when it moved for judgment, that plaintiff's expert, Olson, admitted that the ICC schedule governed only interstate commerce, that there was no controlling New Jersey regulation, and that defendant was free to contract with Food Fair for whatever rate was thought proper for the intrastate carriage of produce.

The question is not the applicability of the ICC rate. Clearly, ICC could not regulate the intrastate commerce here involved. Rather, the question is: What were the terms of the agreement entered into between plaintiff and defendant with regard to such intrastate shipments? Our review of the record convinces us that the resolution of this controverted issue was properly left to the jury for determination.

Plaintiff testified that when he first spoke to Arthur Jones, defendant's representative, about trucking, Jones had said in the presence of Michael Cuozzo, another contract trucker, that "he [ i.e. , defendant] had the ICC license and I [plaintiff] will receive eighty five percent of the monies received from Food Fair." Cuozzo testified that Jones had told plaintiff he was to be paid "under ICC rates," and "The base figures were to be taken from ICC rights." Plaintiff was to be paid at the same rates as Cuozzo, and these were based on the ICC tariff. Cuozzo further testified that

he had received the same rate for a shipment of produce wholly within the State as when he carried produce outside the State.

Plaintiff's expert explained that the inclusion of an exempt item like produce, in a tariff of items over which the ICC had no control, was a practice often used when the framer of the tariff wanted to protect a rate rather than make a new rate on every shipment. Asked if there was any ICC rule or regulation which would prevent a shipper like Food Fair and a trucking company like defendant from including in their tariff a schedule of rates and scope of operating rights covering exempt items, such as produce, fish and dairy products, Olson replied that there was not.

The testimony makes clear that the parties to this action were entirely free to agree that ICC rates were to apply to intrastate shipments. In the light of the testimony of plaintiff, Cuozzo and Olson, enough of a factual issue was created as to the rate defendant had agreed to pay plaintiff for intrastate shipments of produce to create a jury question. Where reasonable minds may entertain different views as to the truth of the evidence adduced, the factual issue must be resolved by the jury. Koch v. LaPorta , 30 N.J. Super. 388, ...

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