
    Commonwealth v. Freed
    
      Elmer L. Menges, assistant district attorney, for Commonwealth.
    
      Louis M. Childs, II, for defendant.
    March 9, 1934.
   Corson, J.,

Defendant appeals from a summary conviction under the Act of May 25,1933, P. L. 1064, which adds section 824 to The Vehicle Code of May 1,1929, P. L. 905. The contention of the Commonwealth is that the 'truck operated by defendant had a carrying capacity of two tons or over and that such truck was not equipped with flares as required by the Act of 1933, supra.

Defendant contended, and produced evidence to show, that the carrying capacity of the truck in question was less than one and one-half tons. The Commonwealth did not deny the testimony produced by the defendant, but alleged that because the truck was licensed under what is known as a T license, it was therefore authorized to carry a gross weight load of 11,000 pounds. The Commonwealth, however, made no attempt to show the weight of the body and cab, although testimony was produced by the defendant to show that the weight of the chassis and body was approximately 5,275 pounds.

Upon this testimony, the truck would be authorized under its license class .to carry the difference between 5,275 pounds and 11,000 pounds, or 5,725 pounds. The load which this truck would be authorized to carry under its license class would therefore be more than the two tons provided in the Act of 1933, supra. However, while the authorized load under the truck’s license class may be considered in determining the carrying capacity of such truck, yet the trial judge is convinced by the evidence produced in this case that the carrying capacity of the defendant’s truck, as the phrase “carrying capacity” is to be construed in the Act of 1933, was less than two tons, and that such truck therefore does not come within the provisions of such act. We cannot find that the authority to carry and the ability or capacity to carry are in this case the same.

And now, March 9, 1934, for the reasons given, the defendant is adjudged not guilty. From Aaron S. Swartz, Jr., Norristown, Pa.  