Southern Pac. Co. v. Fish

• Decision Date: 18 December 1958
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. George M. FISH et al., Defendants and Respondents. SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents. SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents. SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents. Civ. 22933.

Page 133

333 P.2d 133

166 Cal.App.2d 353

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. George M. FISH et al., Defendants and Respondents.

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents.

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents.

SOUTHERN PACIFIC COMPANY, a corporation, Plaintiff and Appellant, v. SEABOARD MILLS et al., Defendants and Respondents.

Civ. 22933.

District Court of Appeal, Second District, Division 1, California.

Dec. 18, 1958.

A. T. Suter, Frederick E. Fuhrman, San Francisco, E. D. Yeomans, Walt A. Steiger and John H. Gordon, Los Angeles, for appellant.

Schramm, Raddue & Seed, Edw. W. Schramm, Santa Barbara, for respondents.

LILLIE, Justice.

This is an appeal by plaintiff from summary judgments in defendants' favor in each of the above actions which were consolidated for the purpose of considering defendants' motions. Hereinafter, and for the purposes of this appeal, we shall treat the motions as a single pleading.

From the affidavit supporting the motion, and the entire record before us, it appears that the instant litigation had its genesis in a dispute over the availability of transit privileges or service at defendants' Santa Barbara processing plant, with respect to several carloads of dried beans and peas shipped from points in Idaho and Washington by way of Portland, thence to Santa Barbara and finally to eastern destinations. The recognized privilege of transit enables a commodity to be shipped from point A to point B, there to be stored, marketed or processed, and later reshipped to point C at a rate less than the combined separate rates from A to B and B to C.

During the time in question defendants were engaged at Santa Barbara in the processing of beans and peas to be sold in eastern markets. They arranged to do business with growers in the Pacific Northwest and accordingly made certain inquiries from a Union Pacific freight agent in Idaho, there and then alleged by defendants to be likewise acting for plaintiff, who advised them that, under the rules and regulations of the Interstate Commerce Commission, transit privileges were available at Santa Barbara in connection with transcontinental rates from Portland, Oregon, and that defendants could avail themselves of such rates and transit service by paying the local rates from Idaho origins to Portland, plus the rates from Portland to eastern destinations. Between April of 1949 and February of 1951, defendants shipped from points in Idaho and Washington, by way of Portland, numerous carloads of dried beans and peas consigned to themselves at Santa Barbara. Plaintiff, as delivering carrier, collected charges at Santa Barbara based on the combination of local rates to and from Portland with respect to the Idaho shipments, and on the basis of the joint through rates via Portland on the Washington carloads. On the outbound shipments from Santa Barbara, after the transiting operation had been completed, tariff charges based on the transcontinental rate from Portland via Santa Barbara were assessed and paid to plaintiff. Thereafter, at defendants' request, plaintiff refunded to them that portion of the charge pertaining to the movement from Portland to the transit point at Santa Barbara, less the transit charge. These refunds were made because of the belief, then allegedly adhered to by both plaintiff and defendants, that dried beans and peas were 'foodstuffs' which, under applicable tariff provisions, would authorize the transit operation at Santa Barbara. Later, it developed that this belief was erroneous and that the commodities in question were not 'foodstuffs' within the definition of that term by the Interstate Commerce Commission.

Plaintiff's four actions, alleging payment of money under mistake, sought recovery of a portion of the refunds paid to defendants, such portion representing the freight charges from Portland to Castle Crag, California, a point near Dunsmuir in the northern part of the state. As plaintiff points out in its brief, the total charges for the through movement would thus be based on the applicable rates from origin points to Castle Crag, plus the applicable rate from that point to final eastern destinations, plus transit charge. The selection of Castle Crag as a pivotal point may be explained by the fact that the Pacific coast territory for transit privilege purposes has been divided by the transcontinental lines, with the apparent approval of the Interstate Commerce Commission, into three zones: (1) north of Castle Crag; (2) south of Mojave and San Luis Obispo, embracing Santa Barbara, and (3) between Castle Crag and the Mojave-San Luis Obispo line. Transit privileges, in connection with eastbound rates, are available only in that zone which embraces the point of origin.

Plaintiff's suits were held in abeyance pending a decision by the Interstate Commerce Commission on a complaint filed by the defendants in which it was initially claimed that the charges originally assessed by plaintiff and paid by defendants were applicable; subsequently the complaint was limited to the claim that plaintiff's failure to provide transit at Santa Barbara was unjust, unreasonable and unduly prejudicial and that the rates from the points of origin in Idaho and Washington destined to transcontinental destinations were unjustly and unreasonably high, particularly with respect to the Portland to Castle Crag segment or factor. Both contentions were rejected by the Commission, which concluded: 'We find that the defendant's (Southern Pacific Company) failure to provide transit service at Santa Barbara on dried beans and peas originating in Idaho and Washington, in connection with transcontinental rates from Portland, is not shown to have been or to be unjust, unreasonable, or unduly prejudicial, and that the assailed rates on this traffic are not shown to have been or to be unjust or unreasonable. The complaint will be dismissed.'

Following the rendition of this decision, defendants answered the complaints on file and denied the existence of any mutual mistake of fact. Shortly thereafter, they moved the court below for summary judgment based on a single affidavit executed by George M. Fish, as an individual defendant in one of the actions and as President of Seaboard Mills, a corporation, a defendant in each of the remaining suits, to which affidavit there was attached an unauthenticated copy of the Commission's report and order. A memorandum of authorities accompanied the motion. No counteraffidavit was executed by plaintiff, although it also filed a memorandum of points and authorities in opposition thereto. The trial court granted the motion for summary judgment, setting forth its reasons in a memorandum which has been made part of the record. It adopted the argument of defendants (1) that if the plaintiff made the refunds by mistake, the mistake was one of law and no recovery could be had; and (2) assuming that there was no mistake of law, then the contract was an illegal one and plaintiff could not recover since the courts will not assist any party to an illegal contract.

Appellant argues herein that it is suing to recover lawful tariff charges which it has the right and the obligation to collect under applicable provisions of the Interstate Commerce Act, regardless of any circumstances that may be involved; and therefore it is immaterial whether the refund to defendants resulted from a mistake of law or pursuant to an illegal contract. Because, contends appellant, the issue here is purely one of law, it additionally requests this appellate court to exercise the powers conferred by section 53, Code of Civil Procedure, and not only reverse the lower court's judgment, but direct the entry of judgment for appellant. Respondents, on the other hand, submit that their uncontroverted affidavit is sufficient to support their judgment.

With respect to appellant's contentions, it is necessary at the outset to observe, since the point is not once touched upon by appellant, that we are not here confronted with an appeal from a judgment after trial on the merits. To the contrary, the proceeding in the court below was a summary one, authorized and governed by section 437c. Code of Civil Procedure, which insofar as then pertinent read as follows: 'In superior courts * * * when an answer is filed in any kind of action if it is claimed that * * * the action has no merit, on motion * * * supported by affidavit * * * the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.'

'By an unbroken line of decision in this state since the date of the original enactment of section 437c, the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns' (Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62; Poochigian v. Layne, 120 Cal.App.2d 757, 760, 261 P.2d 738); hence, a hearing on motion for summary judgment is not a trial on the merits (Luders v. Pummer, 152 Cal.App.2d 276, 279, 313 P.2d 38; Shea v. Leonis, 29 Cal.App.2d 184, 187, 84 P.2d 277).

We first dispose of appellant's contention that it is entitled to an entry of judgment in its favor upon a reversal herein, by reason of the asserted undisputed facts set forth in defendants' affidavit and the applicable law, notwithstanding appellant's failure to file a counteraffidavit on its own behalf. Actually, appellant herein seeks to rely upon respondents' affidavit supporting respondents' motion for summary judgment in the lower court. As section 437c clearly indicates, a complaint may be dismissed or answer stricken 'unless the other part...