R. E. Tharp, Inc. v. Miller Hay Co.

• Decision Date: 12 April 1968
• Court: California Court of Appeals Court of Appeals
• Parties: R.E. THARP, INC., Plaintiff and Respondent, v. MILLER HAY COMPANY, and Ted Miller, Defendants and Appellants. Civ. 851.

Page 854

67 Cal.Rptr. 854

261 Cal.App.2d 81

R.E. THARP, INC., Plaintiff and Respondent, v. MILLER HAY COMPANY, and Ted Miller, Defendants and Appellants.

Civ. 851.

Court of Appeal, Fifth District, California.

April 12, 1968.

Hearing Denied June 5, 1968.

Schroeder, Campbell & McFeeters, by Truman F. Campbell, Fresno, for defendants and appellants.

Lester J. Gendron, Madera, for plaintiff and respondent.

GARGANO, Associate Justice.

Plaintiff, a licensed radial highway common carrier, brought this action to recover $11,935.22 from defendant on an open book account. ¹ During the trial plaintiff attempted to prove that the money which it sought to recover was for undercharges resulting from the transportation of defendants' hay. Defendants, however, objected to plaintiff's evidence on the ground that it was at variance with the pleadings and the objection was sustained. Plaintiff then moved the court for leave to amend its complaint to state a cause of action for an account stated in order to conform to proof. Plaintiff's motion was granted by the court and the complaint was deemed amended accordingly. At the conclusion of the trial the trial judge (Judge Coffee) resigned before awarding judgment to either party. By stipulation the cause was submitted to another judge (Judge Hammerberg) for decision on the reporter's transcript. Judgment was granted in favor of defendants and plaintiff moved for a new trial. It asserted that irregularities in the proceedings prevented plaintiff from having a fair trial; plaintiff alleged that Judge Coffee erred when he rejected plaintiff's proffered evidence relating to the undercharges. Plaintiff's motion was granted and this appeal followed.

Defendant correctly contends that plaintiff did not prove an account stated. There is absolutely no evidence that the parties ever struck a balance on the undercharges. On the contrary, it is clear from the evidence that defendants consistently denied liability for the undercharges and maintained that plaintiff's hauling services were performed under a contract of sale, not one of transportation. It is elementary that an account stated is an express or implied agreement between a debtor and his creditor that a certain sum shall be paid and accepted in discharge of the debtor's obligation (1 Cal.Jur.2d, § 32, p. 366, 1952 ed.). And an open book account is not transformed into an account stated by striking a balance unless both parties expressly or impliedly assent to its correctness, or unless the debtor expressly or impliedly acknowledges that he owes the amount struck (1 Cal.Jur.2d, § 50, p. 377, 1952 ed.) ²

Defendants also correctly assert that plaintiff could not recover undercharges under the pleaded 'open book account.' Plaintiff's president testified that defendants calculated the charges due each week and paid plaintiff on that basis. Thus, the open book account terminated with each weekly payment even though the balance struck may have rested on an illegal computation (Groom v. Holm, 176 Cal.App.2d 310, 1 Cal.Rptr. 410). In fact, an open account between a shipper and a licensed radial highway common carrier cannot remain open for more than 15 days under the 'Collection of Charges Rule' of the Public Utilities Commission. ³

The plaintiff's right to recover undercharges in the instant case, if it exists at all, is based on defendants' legal obligation (a so-called 'implied promise') to pay the minimum transportation rates fixed by the Public Utilities Commission which became a part of the parties' original transportation agreement as a matter of law despite the parties' billing procedure (Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 54 Cal.Rptr. 290). Thus, it is manifest that plaintiff's proffered evidence was at variance with the pleadings and that the trial court correctly sustained defendants' objections. It is settled that a plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs (Bailey v. Brown, 4 Cal.App. 515, 88 P. 518; Lewis v. South S.F. Yellow Cab Co., 93 Cal.App.2d 849, 210 P.2d 62).

Thus, the crucial question is whether the trial judge should have ordered an appropriate amendment to plaintiff's pleadings even though the amendment would have required plaintiff to state an entirely different cause of action. If so, the court erred when it neglected to do so, and this error would support the order for a new trial. On the other hand, if the trial judge was not under a duty to order an amendment the subsequent order granting a new trial was in excess of the court's discretion. It is the rule that there is no legal ground for granting a new trial if it is granted for an error of law which did not occur (Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823).

It is absolutely clear from the record that defendants were not misled by the pleadings as to the true nature of plaintiff's action. Defendants requested and received a bill of particulars prior to trial in which the claimed undercharges were itemized in detail. Moreover, it is difficult to believe that defendants were unaware of the investigation of the Public Utilities Commission or that they did not know that the commission had directed the plaintiff to collect the undercharges in question. Thus, we may safely assume that defendants were prepared to meet the undercharges issue at the time of trial. Nevertheless, it has long been the decisional law of this state that a trial judge who correctly sustains an objection to proffered evidence because it is at variance with the pleadings is not under a duty to order an appropriate amendment to enable the plaintiff to prove his case (Davey v. Southern Pacific Co., 116 Cal. 325, 48 P. 117). And ordinarily we would be reluctant to depart from this long established rule of pleading, particularly in a case where, as here, the plaintiff knew the exact reason for the court's ruling and yet failed to protect its interest by offering an appropriate amendment. ⁴

We do not here deal with ordinary circumstances. On the contrary, the recovery of undercharges by a carrier through the judicial process is founded on salutary public policy and is not only a right but a duty. In fact, it has been repeatedly held that the recovery of undercharges is one of the most effective means of preserving the minimum rate structure and of eliminating collusion between carriers and shippers (Hischemoeller v. Nat. Ice, etc., Storage Co., 46 Cal.2d 318, 294 P.2d 433; Gardner v. Basich Bros. Construction Co., 44 Cal.2d 191, 281 P.2d 521; Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; People ex rel. Public Util. Com. v. Ryerson, 241 Cal.App.2d 115, 50 Cal.Rptr. 246). As the court said in Transmix Corp. v. Southern Pac. Co., 187 Cal.App.2d 257, 265, 9 Cal.Rptr. 714, 719:

'* * * The reason why there must be Inflexibility in the enforcement of the published rate Against all and every suggestion for relaxation rests upon the practical impossibility otherwise of maintaining equality between all shippers without preferential privileges of any sort. The rate when published becomes established by law. It can be varied only by law, and not by act of the parties.'

Moreover, it is common knowledge that carriers are Less than enthusiastic in their pursuit of litigation to recover undercharges from their Customers. Therefore, in the absence of careful judicial Supervision, inept pleadings could be used as a clever device to thwart the orders of the Public Utilities Commission and to contravene the legislative scheme which is designed to protect the public interest in a vital quasi-public industry.

We conclude that the public policy underlying the preservation of the minimum rate structure and the importance of maintaining integrity in the orders of the Public Utilities Commission overshadows the purpose for adhering to strict rules of pleading and imposed on the trial judge, in the instant case, the duty to order an appropriate amendment to plaintiff' pleadings after he sustained defendants' objections. Significantly, Code of Civil Procedure section 469 provides that:

'No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the Court may order the pleading to be amended, upon such terms as may be just.'

And we are persuaded by Chief Justice Beatty's dissenting opinion in Davey v. Southern Pacific Co., 116 Cal. 325, 333, 48 P. 117, 119, that the instant case requires special treatment. This eminent jurist, with less compelling reasons, stated:

'In this case, if this law (Code Civ.Proc. § 469) had been observed, the worst that could have...