Opinion
Sept. 28, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Morris Rifkin, Denver, for plaintiff in error.
Allen P. Mitchem, and Thomas A. Cox, Denver, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This action was instituted by a common carrier trucking company, which company is not a party to this appeal. In its action, the carrier sought payment from Gorrell Lumber, the defendant in error here, of certain shipping charges payable as to lumber which the carrier had transported in interstate commerce and which was shipped by Gorrell Lumber. The plaintiff in error, Manchester, a truck broker, was joined as a third-party defendant under a cross-claim by Gorrell Lumber which sought recovery from Manchester as to any of the asserted shipping charges which exceeded the sum of $800. Trial was to the court, which determined that the total shipping charges which were payable by Gorrell Lumber to the carrier were $1,816.40. The trial court also entered judgment on the cross-claim against Manchester in the amount of $1,016.40, and from such judgment Manchester has appealed.
In awarding judgment against Manchester, the trial court found he had acted negligently in his capacity as a truck broker, after accepting the responsibility of arranging interstate shipments for Gorrell. The trial court specifically found that Gorrell and Manchester had entered into an agreement under which Gorrell would pay the sum of approximately $400 per load for the haulage of the two loads of lumber involved in this case. The record also discloses without contradiction that Manchester was advised by two drivers for the carrier that they would haul the two loads at a rate of $400 per load; that Manchester thereafter issued written loading orders on the loads directed to the carrier, which orders stated in substance that the freight was prepaid and directed the carrier to mail signed loading and unloading papers to Manchester for freight payment, less 6% Brokerage. The record is also clear that, under the Interstate Commerce Commission's tariff rates applicable to the carrier, the loads could not have been lawfully hauled by the carrier for a total cost of less than $1,816.40, the amount actually demanded by the carrier and awarded to it.
It is Manchester's primary position that because the carrier's I.C.C. rates were a matter of public knowledge Gorrell Lumber was charged with notice of those rates, and that to allow it redress against Manchester constitutes a violation of the Interstate Commerce Commission regulations. Manchester also contends that the trial court erred in finding that he was acting as a broker and in finding that the functions he performed in that capacity were done in such a manner as to render him liable to Gorrell.
As to the trial court's factual determinations that Manchester was in fact a haulage or trucking broker and that he performed negligently in that capacity, it is adequate to state here that the evidence in the record supports those factual findings and that we will not disturb them on review. Andersen-Randolph Co. v. Taylor, 146 Colo. 170, 361 P.2d 142.
The trial court was also correct in ruling that Manchester was liable to Gorrell Lumber for the damages it suffered as a result of his negligent acts. Under the facts of this case, it was Manchester, acting independently and outside the scope of his authorization, who selected and contracted with the carrier. Manchester was not merely a middleman who brought two parties together so that those parties could then contract at their individual risk. It was Manchester, not Gorrell Lumber, who knew the identity of the carrier, and consequently it was only Manchester who could be charged with notice of the selected carrier's I.C.C. tariff rates. In such position, it was Manchester who possessed the duty to determine those rates. Having failed to discharge those duties, Manchester was liable for the damages by way of excesses over authorized costs which Gorrell Lumber ultimately suffered. Interstate Employment System v. Hall, 82 Colo. 156, 257 P. 1075. See Granite State Fire Insurance Co. v. Mitton, D.C., 98 F.Supp. 706, affirmed, 10 Cir., 196 F.2d 988.
This result does no violence to the statutory or regulatory requirements of the Interstate Commerce Commission since, from the standpoint of Gorrell Lumber, those requirements were met. The only possible violations of those requirements arose from the acts of Manchester.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.