Kentner Truck Line, Inc. v. Maier Brewing Co.

• Citation: 183 Cal.App.2d 89,6 Cal.Rptr. 572
• Court: California Court of Appeals
• Decision Date: 25 July 1960
• Parties: KENTNER TRUCK LINE, INC., a corporation, Plaintiff and Respondent, v. MAIER BREWING COMPANY, corporation, Defendant and Appellant. Civ. 18810.

Page 572

6 Cal.Rptr. 572

183 Cal.App.2d 89

KENTNER TRUCK LINE, INC., a corporation, Plaintiff and Respondent, v. MAIER BREWING COMPANY, corporation, Defendant and Appellant.

Civ. 18810.

District Court of Appeal, First District, Division 2, California.

July 25, 1960.

G. Vernon Brumbaugh, Los Angeles, for appellant.

Robert E. Phelan, Vernon W. Humber, San Francisco, for respondent.

SHOEMAKER, Justice.

Plaintiff Kentner Truck Line, Inc., a radial highway common carrier, in a complaint of three counts, sued defendant Maier Brewing Company for undercharges growing out of transportation services furnished between the years 1952-1954 inclusive. Each count carried a demand for somewhat less than the jurisdictional amount of the superior court but the total fulfilled this requirement. A demurrer was filed to each count. It was overruled as to count one but was sustained as to counts two and three on the ground that said counts were barred by the statute of limitations. Following trial by court, judgment was entered for plaintiff on the first count in the sum of $2531.36 which included $73.73 in federal taxes, from which judgment defendant appeals.

The facts are not in dispute. During the years 1953 and 1954 defendant kept one million or more pounds of rice on hand at the premises of its supplier, C. E. Grosjean Rice Milling Company, in San Francisco. Defendant's president testified that in January of 1953 a representative of plaintiff quoted a price of about 36 or 37 cents per 100 pounds for the bulk shipping by truck of said rice from San Francisco to defendant's place of business in Los Angeles. He stated, 'The rate was based on 80,000 pounds rail.'

Plaintiff introduced into evidence one copy of a bill of lading and two copies of a freight bill for each of 49 shipments, these documents bearing various, dates from March 5, 1953 to May 10, 1954 (Plaintiff's Exhibit No. 1). The bills of lading are signed by a representative of defendant and defendant was billed for each of these shipments at the agreed rate of 37 cents and paid said bills in accordance with their terms.

Plaintiff's case was presented on the theory that the billing at the above-mentioned rate was erroneous, inasmuch as that rate is lower than the minimum tariff prescribed by the Public Utilities Commission for such shipments. Plaintiff showed that the rate actually charged was a rail rate applicable to the product here involved only when shipments thereof are in quantities of at least 60,000 pounds. No single shipment in the instant case weighed more than 43,000 pounds (Plaintiff's Exhibit No. 1).

Plaintiff also introduced into evidence the tariff regulations promulgated by the Public Utilities Commission (Plaintiff's Exhibit No. 2) and prayed judgment for the minimum charges specified therein which it alleged to be yet unpaid, plus the taxes aforementioned. The court's findings are in substantial harmony with the plaintiff's contentions.

There is no question but that a contract for a rate lower than that prescribed by the Public Utilities Commission is nugatory and a recovery for such undercharge may be had (Hischemoeller v. National Ice, etc., Storage Co., 1956, 46 Cal.2d 318, 294 P.2d 433). However, defendant contends that the superior court was without jurisdiction to hear and determine the matter and, in this connection, argues that although the complaint originally involved claims totaling to $3,017.10, this amount was reduced to $2,661.77 (the prayer of count one) by virtue of the action of the trial court in sustaining the demurrer to the second and third counts of said complaint and that this amount is clearly within the jurisdiction of the municipal court. This contention seems plausible but the law of California is to the contrary. The rule is that a complaint which seeks a total recovery of an amount in excess of the superior court's jurisdictional minimum states a cause of action within that court's jurisdiction even though it may appear from the face of the complaint that some of the recovery sought may be defeated by application of the statute of limitations (Brooks v. Brooks, 1941, 48 Cal.App.2d 347, 349, 119 P.2d 970).

While it is true that the effective demand of the complaint must be made in good faith (13 Cal.Jur.2d 574), there is no indication that such is not the situation here. The statute of limitations is a defense which must be properly raised else it is waived. If a plaintiff trims his demand and initially files his action in an inferior court he prematurely concedes the conclusiveness of a defense which a defendant might neglect to plead or be unable to prove (1 Witkin,...