Miles v. Enumclaw Co-op. Creamery Corp.

• Decision Date: 06 February 1942
• Docket Number: 28549.
• Citation: 12 Wn.2d 377,121 P.2d 945
• Parties: MILES v. ENUMCLAW CO-OPERATIVE CREAMERY CORPORATION.
• Court: Washington Supreme Court

121 P.2d 945

12 Wn.2d 377

MILES v. ENUMCLAW CO-OPERATIVE CREAMERY CORPORATION.

No. 28549.

Supreme Court of Washington

February 6, 1942

Department 2.

Action by Charles Miles against the Enumclaw Co-operative Creamery Corporation, to recover the difference between the amount received by the plaintiff for hauling cream for the defendant and the amount chargeable at the rate fixed for common carriers. Judgment for the plaintiff and the defendant appeals.

Judgment reversed and cause remanded with directions.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

John T. McCutcheon, of Tacoma, for appellant.

Samuel L. Crippen, of Tacoma, for respondent.

BLAKE Justice.

The defendant operates a creamery at McKenna, some thirty miles south of Tacoma. About the year 1930, defendant entered into a contract with plaintiff to haul cream from the McKenna plant to Tacoma for twenty cents per hundred pounds, with a guarantee of an average of forty cans a day. Plaintiff continued to operate under this contract until May 15, 1940 when the defendant made other arrangements for sending its cream to Tacoma.

In the meantime (December 14, 1933), plaintiff was granted, under the provisions of chapter 166, Laws of 1933, p. 613, a 'For Hire Carrier' permit by the department of public works (now public service). In 1935, he made application for reclassification as a 'Common Carrier,' and a permit as such, was granted to him September 30th of that year. He filed a tariff which conformed to the rate provided for in his contract with defendant.

May 10 1938, pursuant to the provisions of § 11-a, chapter 184, Laws of 1935, as amended by chapter 166, § 10, Laws of 1937, the department of public service promulgated Order M. V. No. 28132, effective July 15th, by which it established a rate for common carriers of forty cents per hundred weight for hauling cream from McKenna to Tacoma. This rate was double that which plaintiff was charging defendant. In all respects but charging the rate fixed by the departmental order, plaintiff complied with the law and regulations relating to common carriers. He continued, however, to haul cream for defendant at the rate agreed upon until defendant cancelled the contract May 15, 1940. Shortly after that, he commenced this action to recover the difference between the amount he received between August 1, 1938, and May 15, 1940, from defendant at the contract rate and the amount chargeable at the rate fixed by Order M. V. No. 28132 for common carriers. From a judgment in his favor for $6,333.40, defendant appeals.

The basic question for determination is whether respondent was a common carrier. If he was such, he was bound to charge and collect the rate fixed by the order of the department of public service, M. V. No. 28132. Northern Pac. R. Co. v. Longmire, 104 Wash. 121, 176 P. 150; Union Pac. R. Co. v. Eyres Transfer & Warehouse Co., Wash., 121 P.2d 340; State v. Washington Tug & Barge Co., 140 Wash. 613, 250 P. 49; New York Central R. Co. v. Frank H. Buck Co., 2 Cal.2d 384, 41 P.2d 547. The respondent seems to contend that he became a common carrier ipso facto when he was granted a permit as such and complied with the law and the regulations pertaining to common carriers. With this contention, we cannot agree.

The state, under its regulatory powers, cannot, by legislative fiat or through its administrative officers, convert a private or contract carrier into a common carrier. 13 C.J.S., Carriers, p. 49, § 19(2); 9 Am.Jur. 437, § 15; State ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 48 S.Ct. 41, 72 L.Ed. 241; Big Bend Auto Freight v. Ogers, 148 Wash. 521, 269 P. 802. While what constitutes a common carrier is a question of law, the status of a carrier, as such, must be determined from his method of operation. Dairymen's Coop. Sales Ass'n v. Public Service Comm., 318 Pa. 381, 177 A. 770, 98 A.L.R. 218; State v. Washington Tug & Barge Co., supra; State ex rel. Stimson Lumber Co. v. Kuykendall, supra.

Redfield, in his work on Carriers and other bailees (p. 15, § 19), draws the following distinction between private and common carriers: 'It is generally considered that where the carrier undertakes to carry only for the particular occasion, pro hac vice, as it is called, he cannot be held responsible as a common carrier. So, also, if the carrier be employed in carrying for one or a definite number of persons, by way of special undertaking, he is only a private carrier. To constitute one a common carrier he must make that a regular and constant business, or at all events, he must, for the time, hold himself ready to carry for all persons, indifferently, who choose to employ him.' (Italics ours.)

This court has recognized and acted on such distinction. Big Bend Auto Freight Co. v. Ogers, supra. In that case, it was held that one engaged by contract to haul the goods of one shipper was not a common carrier even though occasionally he carried goods for others. It was there said, page 524 of 148 Wash., page 803 of 269 P.:

'If, as a matter of fact, the hauling of ar

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