Pratt v. Coast Trucking, Inc.

• Decision Date: 23 June 1964
• Citation: 39 Cal.Rptr. 332,228 Cal.App.2d 139
• Court: California Court of Appeals Court of Appeals
• Parties: Richard PRATT, Plaintiff and Appellant, v. COAST TRUCKING, INC., a corporation, and Baugh Lumber Sales Co., Inc., a corporation, Defendants and Respondents. Civ. 332.

Page 332

39 Cal.Rptr. 332

228 Cal.App.2d 139

Richard PRATT, Plaintiff and Appellant, v. COAST TRUCKING, INC., a corporation, and Baugh Lumber Sales Co., Inc., a corporation, Defendants and Respondents.

Civ. 332.

District Court of Appeal, Fifth District, California.

June 23, 1964.

As Modified on Denial of Rehearing July 21, 1964.

Hearing Denied Aug. 20, 1964.

Guy Knupp, Jr., Porterville, for appellant.

Russell & Schureman and Theodore W. Russell, Los Angeles, Orville A. Schulenberg, Fresno, for respondents.

Richard E. Tuttle and Donald B. Day, San Francisco, for amicus curiae.

CONLEY, Presiding Justice.

This case tests the relationship and the relative jurisdiction of the Public Utilities Commission of the State of California and the courts of this state other than the Supreme Court.

The appeal is from a judgment of the superior court in favor of the defendants. The plaintiff, at the instance and direction of the Public Utilities Commission, brought action against the defendants for a balance claimed to be due as full charges for prime hauling at the rate prescribed by the commission; the defendants take the position that a prior hearing held by the Public Utilities Commission at which that body found that Coast Trucking, Inc. was the alter ego of the lumber shipper, Baugh Lumber Sales Co., Inc., and that the existence of Coast Trucking, Inc. was a mere device to enable the Baugh Lumber Sales Co., Inc. to secure lower transportation rates for their product was not binding upon the court; on the other hand, the Public Utilities Commission as amicus curiae contends in this court that those matters were wholly within the competence of the commission, that they were decided by it, that the Supreme Court was not asked to review the commission's order, and that the superior court therefore had no jurisdiction to determine such questions contrary to the findings and order of the commission.

The complaint alleged that plaintiff is an individual engaged in business under the name of Pratt Livestock & General Transportation as a highway permit carrier with his principal place of business in Tulare County; that from time to time between the first day of December, 1959, and the 29th day of April, 1961, he engaged as a prime carrier in the carriage of commodities on behalf of the defendants as shippers pursuant to which there became due and payable to him at the rates prescribed by the commission the sum of $42,113.99; that the defendants paid plaintiff the sum of $33,249.00 leaving a balance due of $8,864.99. It is further alleged:

'That the defendant, COAST TRUCKING INC. was not in fact a prime hauler in good faith and with respect to such hauling was not capable of doing any hauling of the commodities which were so carried by the plaintiff for want of necessary equipment therefore, and that said defendant COAST TRUCKING, INC. was in fact a device contrived by the stockholders aforesaid whereby the defendant BAUGH LUMBER SALES, CO., INC., as shipper, might receive transportation of property at rates less than those prescribed by the Public Utilities Commission, and whereby said defendant BAUGH LUMBER SALES CO., INC., has received from plaintiff the transportation of property at such lesser rates, in the following manner: that defendant COAST TRUCKING, INC. as purported prime carrier for defendant BAUGH LUMBER SALES CO., INC., as shipper paid to plaintiff for hauling and and carriage of goods at a rate which would have been applicable had the plaintiff actually been engaged as a true sub-hauler under defendant COAST TRUCKING, INC. as prime hauler, whereas plaintiff was in fact the prime hauler of such goods for BAUGH LUMBER SALES CO., INC., as shipper; that the amounts so paid by the defendants to the plaintiff at sub-hauler's rates, between December 1, 1959 and April 29, 1961 were less than the amounts to which plaintiff was entitled as in truth and in fact a prime hauler in the sum of $8,864.99 and the defendant and each of them therefore became and are thereby indebted to the plaintiff in the sum of $8,864.99.'

The answer of Coast Trucking, Inc., a corporation, besides denying that any sum is due, pleads section 339, subdivision 1 of the Code of Civil Procedure as a bar to the action and urges a counterclaim under which it claims an offset against the plaintiff because of a written contract dated March 30, 1959. In its separate answer, Baugh Lumber Sales Co., Inc. denies that any amount is due to the plaintiff, and also asserts the applicability of section 339, subdivision 1 of the Code of Civil Procedure. The special defenses of the statute of limitations were disposed of by stipulation in the court below.

The court failed to pass upon the counterclaim; as to other issues it held as follows:

'It is true that:

'1. Defendant Coast Trucking, Inc. was not at any time involved herein in alter ego of defendant Baugh Lumber Sales Co., Inc.

'2. At no time involved herein was defendant Coast Trucking, Inc. used as a 'device' to obtain transportation for any property between points within this state at rates less than the minimum rates approved by the Public Utilities Commission within the meaning of Public Utilities Code Section 3668.

'3. No transportation of property between points within this state involved in the within action was obtained by defendant Baugh Lumber Sales Co., Inc. at less than the minimum rates as prescribed by the Public Utilities Commission.

'4. At all times involved herein defendant Coast Trucking, Inc. participated in the transportation involved herein of property between points within this state as 'prime carrier' and not as a shipper, and plaintiff participated in such transportation as a subhauler.

'5. Plaintiff did not provide transportation for the defendant Baugh Lumber Sales Co., Inc.

'6. Plaintiff has been paid for all services and facilities which plaintiff provided to the defendant Coast Trucking, Inc. between December 1, 1959, and April 29, 1960, both inclusive.'

The judgment is for defendants.

The appeal is based upon the assertion that the evidence does not warrant the judgment. But strangely enough, the findings of the commission that Coast Trucking, Inc. and Baugh Lumber Sales Co., Inc. are one and the same from the standpoint of transportation, and that Baugh Lumber Sales Co., Inc. used the name of Coast Trucking, Inc. as a mere device to secure a financial advantage in trasportation were not relied advantage in transportation were not relied appellant. This was an inscrutable failure to insist upon the best point that it had.

The Public Utilities Commission did not participate in the trial of the case, but it was granted permission to file an amicus curiae brief in this court. Consequently, we are confronted by the rule that an amicus curiae must accept the case as it finds it and that a 'friend of the court' cannot launch out upon a juridical expedition of its own unrelated to the actual appellate record. In Eggert v. Pacific States S. & L. Co., 57 Cal.App.2d 239, 251, 136 P.2d 822, 829, the Building and Loan Commissioner intervened at the trial level but failed to appeal from the judgment. Thereafter, the Commissioner was permitted to file a brief on appeal as amicus curiae; the opinion thus discusses the position of the Commissioner:

'By this brief he urges various propositions for the modification of the judgment which are not presented by either plaintiffs (respondents) or defendant (appellant). These questions will not be considered by us for the reason that the rule is universally recognized that an appellate court will consider only those questions properly raised by the appealing parties. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered. (Citations).'

In a 1960 case decided by the United States Supreme Court, Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed. 128, it was said:

'Some point is made in an amicus curiae brief of the fact that Knetsch in entering into these annuity agreement relied on individual ruling letters issued by the Commissioner to other taxpayers. This argument has never been advanced by petitioners in this case. Accordingly, we have no reason to pass upon it.'

A compelling answer to the quandry is that as the court below had the duty to take judicial notice of the files and the order of the commission (59 Opinions of the Public Utilities Commission, pp. 339-343) they may be considered as a part of the record on appeal by this court. In Chas. L. Harney, Inc. v. State of California, 217 Cal.App.2d 77, 31 Cal.Rptr. 524, cases are summarized in which judicial notice was taken of the records and files, as well as the rules and regulations of similar state agencies. At page 85 of 217 Cal.App.2d, at page 529 of 31 Cal.Rptr. it is said:

'At the outset we observe that the trial court and this court have the power to take judicial notice of the official records and files of the State Board of Control and of the office of the State Controller. (Code Civ.Proc., § 1875, subd. 3; Dittus v. Cranston (1959) 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671 (records of State Board of Control); Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 210, 5 Cal.Rptr. 553, 353 P.2d 33 (records of Department of Social Welfare and Board of Social Welfare); Department of Mental Hygiene v. Rosse (1960) 187 Cal.App.2d 283, 287-288, 9 Cal.Rptr. 589 (official records of Department of Mental Hygiene); Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 772-773, 308 P.2d 872 (records of State Board of Education and county planning commission); Adoption of McDonnell (1947) 77 Cal.App.2d 805, 808, 176 P.2d 778 (official files of Department of Social Welfare); McPheeters v. Board of Medical Examiners (1946) 74 Cal.App.2d 46, 47, 168 P.2d 65 (records of said Board); see also Livermore v. Beal (1937) ...