Macco Const. Co. v. Farr

• Decision Date: 25 June 1943
• Docket Number: No. 10312.,10312.
• Parties: MACCO CONST. CO. v. FARR et al.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F.2d 52 (1943)

MACCO CONST. CO. v. FARR et al.

No. 10312.

Circuit Court of Appeals, Ninth Circuit.

June 25, 1943.

Walter O. Schell and Gerald F. H. Delamer, both of Los Angeles, Cal., for appellant.

Phillip Barnett, of San Francisco, Cal., for appellees.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from the District Court of the United States for the Northern District of California, Southern Division.

The case originated with the filing of a complaint in the superior court of the State of California for the City and County of San Francisco.

The complaint alleged that the defendant entered into an oral contract with the plaintiffs whereby the latter agreed to furnish four automobile trucks and their personal services in the operation of the same, and the defendants agreed to hire the exclusive personal service of said plaintiffs and said trucks and equipment for the entire duration of a certain grading and excavation project of defendants; that relying upon said oral agreement and pursuant thereto plaintiffs purchased said number of automobile trucks and defendants did hire the personal services of plaintiffs and the use of said equipment, commencing on the 3rd day of December, 1940; that on or about the 18th day of January, 1941, the defendants without cause discharged the plaintiffs and refused to allow them to continue performance of said contract and that thereby they were damaged in the sum set forth in said complaint.

On motion of the defendant Macco Construction Company said cause was removed to the District Court of the United States for the Northern District of California, Southern Division.

The defendant Macco Construction Company (Appellant here) filed its answer admitting that on or about the 3rd day of December, 1940 it entered into an oral agreement with the plaintiffs whereby the plaintiffs agreed to furnish four automobile trucks and their personal services in the operation thereof and that defendant agreed to hire said personal services of plaintiffs and said truck equipment. The answer, however, denied the agreement was for hire of said trucks and services for the entire duration of said project or for any other specified time. The answer further alleged that the agreement for the hiring was merely for such time as the defendant desired to avail itself of said truck and personal services. The answer admitted that on or about the 18th day of January, 1941, the defendant ceased to desire to avail itself of said services and equipment and thereupon terminated the said agreement. The answer denied the damages alleged in the complaint.

For a second and separate defense the answer alleged that the trucks furnished were not in good serviceable condition and were not maintained in workable condition and that by reason of their defective condition, plaintiffs breached the said agreement.

In a third defense the answer alleged that by reason of the unserviceable condition of the said trucks the consideration to the defendant for entering into the agreement for hire failed in a material part.

As a fourth defense it was alleged that prior to the commencement of the action plaintiffs had assigned all their right and interest therein to another corporation.

A jury trial was held. At the conclusion of plaintiff's case the defendant moved to dismiss, which motion was denied. At the conclusion of all the evidence defendant made a motion for a directed verdict in its favor, which motion was denied and exception allowed. The jury returned a verdict in favor of the appellees in the sum of $2,500.00.

Appellant filed a motion to set aside the verdict and any judgment entered thereon and that judgment be entered in its favor, or in the alternative, a new trial be granted. Said motion was denied and final judgment entered in favor of the appellees from which this appeal is taken.

There are a number of specifications of error based upon matters of evidence — that the evidence fails to support the damages awarded; that even if the evidence shows that appellant breached the contract appellees did not lose any profits by reason thereof; that the evidence is insufficient to support a finding that the contract was for a definite period of time; that the evidence fails to support a finding that appellant breached any existing contract between the parties.

The above enumerated assignments of error based upon matters of evidence with a few other minor ones are not discussed herein in detail. It is sufficient to say that these issues of fact were properly submitted to the jury upon conflicting testimony and its determination of them must be sustained because supported by substantial evidence.

Appellant's principal contention is that as a matter of law appellees were not entitled to recover because they had obtained no permit from the Railroad Commission of the State of California. Appellant strongly insists that by virtue of the City Carriers' Act No. 5134, Deering's General Laws of the State of California, Stats.1935, p. 1057 as amended Stats.1937, p. 629, the contract was void since the appellees had obtained no license from the Railroad Commission of the State of California permitting transportation of property by trucks over public streets.

Appellees made out their case in chief without any reference having been made as to where or by what route the earth to be moved should be transported.

After the appellant had brought out that some of the earth was moved over the public street in claimed violation of the above cited City Carriers' Act one of the appellees was recalled and he testified that during the negotiations leading up to the contract Mr. Wells who represented the company had stated the hauling job would be on private property of the Bethlehem Steel Company where the excavating was taking place and that it was understood that the dirt would be loaded on barges and taken to Alameda. Appellant argues that this testimony although not denied is not true and in any event contends that the contract was void because at least some use was made of the highway without the required permit.

Appellant moved that the trial court dismiss the action on the ground that upon the showing that some use had been made of the city street without an official permit the contract was rendered void. It should be noted that the answer had not pleaded this defense. The trial court refused to dismiss and this claimed error is the principal point of contention in this case.

The California City Carriers' Act specifically provides penalties for its violation. Certain of these are denominated "Criminal Penalties", Section 13, and others designated "Civil Penalties", Section 14. Where the legislature thus particularly enumerated these penalties we must not assume that some others not named were intended to be included. The Act does not declare that a contract entered into or executed between the parties which involved the use of a highway in transporting materials was void because no permit had been secured.

The contract did not require the use of the street. On the contrary, at the time it was made the intention was otherwise. Admittedly, much of the transportation of the dirt was carried out wholly on the premises of the Bethlehem Steel Company as originally contemplated. No attempt was made by the appellant to show what part of the hauling was over the street although it alone had this accurate information. Moreover, the contract did not require that appellees perform the work without procuring a permit; nor does it appear that appellees could not have secured a permit or license if necessary.

The evidence of appellees was that the dirt was to be hauled entirely upon the premises of the Bethlehem Steel Company where the excavating was being done. When the work began this plan was followed. The evidence shows that appellant was to engage the drivers of the trucks, that it did hire them, paid them and directed their work. The change of the dump to a place which necessitated some use of the street was directed by appellant and carried out by the drivers hired by it and under its direction. There is no showing that any of the appellees were personally engaged in this part of the work.

In an exact sense, appellees were not public carriers at all as the operation of hauling in its inception did not contemplate the use of the city street and to do the work the way it was inaugurated would not require a permit. Appellees were not "engaged in transportation for compensation or hire as a business over any public highway in any city or any city and county of this state by means of a motor vehicle or vehicles", as the City Carriers' Act provides.

It is apparent that this contract was not entered into for any illegal purpose or with any understanding or intent to violate the law and hence is not malum in se, but appellant insists that the decisions of the California courts hold that where a statute...