Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.
From a judgment for $6,323.04 and costs, in favor of plaintiff George Hart, doing business as Hart Motor Express, entered against defendants James L. Gallis, James Chilis and Peter Chrisos, partners, doing business as Chicago Truck Terminal Service Station, they have appealed. Jurisdiction was based upon diversity of citizenship and the case was tried without a jury.
A cargo of eggs was shipped by a consignor from Wadena, Minnesota to Pittsburgh, Pennsylvania, via plaintiff, a common carrier by motor vehicle authorized to operate between points in the state of Minnesota and Chicago, Illinois.A covering bill of lading designated the Great Atlantic & Pacific Tea Co. at Pittsburgh as consignee. Plaintiff transported the cargo by his truck to Chicago. His Chicago office issued a freight bill for said eggs.
Located in the middle of the South Water Market, in Chicago, defendants operate a service station catering to itinerant truckers, who bring loads to the Chicago market and park their vehicles at such stations until outgoing loads can be found. Especially where commodities exempt under the Interstate Commerce Act are involved, defendants furnish to shippers and originating truck lines a service in contacting itinerant truckers who undertake to carry a shipment to destination beyond Chicago. Defendants have a drivers' room and a restaurant.Their advertisement in the telephone company's Red Book includes the name shown in the caption of this opinion.
Defendants charge a fee for their services to truckers in finding loads of exempt goods for transportation usually to the places from which the truckers come. The charges vary according to circumstances, such as the desire of the driver to leave in a hurry.
Witness Jacobsen, when he was plaintiff's employee, was solicited by or had done business with other stations similar to defendants' and knew the custom of the trade. Jacobsen wrote on the freight bill in this case "Pay Gallis $217.51" and gave the driver (Ray Fisher) selected by defendants a check for that amount payable to defendant Gallis.This check was cashed by defendants. This payment was figured on the mileage basis of the relative distances the carriers were to handle the load.
Plaintiff put ice in the trailer and also hay as packing to protect the eggs. Jacobsen testified that he said to the dispatcher when the driver came from defendants, "Look at his outfit to see if it is a good sturdy piece of equipment." Defendants gave Fisher a check for around $189 to $199. This left defendants with a finder's fee of about $10, $12, or $15.
The findings of fact entered by the district court include:
7. Upon arrival of said load of eggs in Chicago, Illinois, plaintiff called and requested defendants to find an interline carrier to haul such load from Chicago to Pittsburgh.
8. Defendants, pursuant to plaintiff's said request, sent a trucker who operated an appropriate vehicle to the place of business of plaintiff in Chicago, where the cargo was loaded onto the said vehicle and where plaintiff drew a check to defendants' order in the amount of $217.51 and gave it to the trucker, who then endorsed the through bill of lading "Paid Ray Fisher".
9. The said check was made payable to one of the defendants at defendants' request.
10. The trucker returned to defendants' place of business, gave defendants the said check and received in return from defendants the defendants' checks for a total sum between $180 and $200.
The difference between the amount of the plaintiff's check and the sum of defendants' checks was the amount of defendants' fees for gas station services and services in ...