State v. Washington Tug & Barge Co.

• Decision Date: 25 October 1926
• Docket Number: 20000.
• Citation: 140 Wash. 613,250 P. 49
• Court: Washington Supreme Court
• Parties: STATE v. WASHINGTON TUG & BARGE CO.

250 P. 49

140 Wash. 613

STATE v. WASHINGTON TUG & BARGE CO.

No. 20000.

Supreme Court of Washington

October 25, 1926

Department 2.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Action by the State of Washington against the Washington Tug & Barge Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed and remanded, with directions.

John H Dunbar and H. C. Brodie, both of Olympia, and L. L. Thompson of Tacoma, for the State.

Stratton & Kane, of Seattle, for respondent.

MAIN J.

By this action the state sought to recover penalties because the defendant did not charge for services rendered by it in accordance with the tariff on file with the department of public works. In the complaint there are eleven causes of action separately stated. During the trial two of these were dismissed by the state. The trial to the court without a jury proceeded upon the other nine causes and resulted in findings of fact, conclusions of law, and a judgment dismissing the complaint as to all causes of action. From this the state appeals.

The respondent was engaged in the business of operating two boats, tugs, scows, barges, and lighters in the conveyance of property for hire over and upon the waters of Puget Sound and the waters adjacent thereto. Its place of business, from which the towboats were dispatched, was in Seattle. As stated, the action was one to recover penalties. The respondent for services rendered at times charged the tariff rate, other times more, and sometimes less. It claims to be a private carrier and therefore not bound by the tariff rate.

The question is whether the respondent was a public or private carrier. This is largely a question of fact, or, as in this case, a conclusion from the facts, which are not in serious dispute. The question is not whether the respondent was a public carrier at common law but whether it comes under section 10344, Rem. Comp. Stat., which provides that a vessel, which includes towboats, tugs, scows, barges, and lighters shall be a common carrier when 'operated, for the public use in the conveyance of persons or property for hire over and upon the waters within this state. * * *' To make the question more specific it is whether the respondent was operating its towboats, etc., 'for the public use.'

That the service was rendered and for hire is admitted. The evidence shows that the business of the respondent was conducted in this manner. In its office at Seattle there was what was called a dispatcher, whose duties were to receive applications for service and furnish the equipment. If the service desired was a matter of consequence it was submitted to the manager. The company had solicitors who went about the waterfront calling upon their customers and looking for business. These solicitors did not have the power to make contracts, but when business was obtained it was submitted to the dispatcher, and, as said, if it was a matter of some consequence, was in turn submitted to the manager.

A witness called by the state who was formerly the dispatcher for the respondent in part testified:

'Q. While you were employed, did the defendant here have solicitors employed to solicit business for this tugboat company? A. Yes. 'Q. Were these solicitors employed all the time? A. Well they were employed all the time--not all the time, possibly, as solicitors. There was other work to which they were assigned.

'Q. Do you know what their duties were as solicitors? A. Well, in a general way to call on the trade and get business, I presume, follow up leads.

'Q. Soliciting business from the general public? A. Well, whenever there was prospective business, I would say.'

The same witness further testified:

'Q. During your employment, did you ever receive orders from the defendant to take work only from certain specific individuals? A. I did not.

'Q. Was it your understanding that the work would be done for any that might apply? A. Yes.'

An officer of the company called as a witness by the respondent testified in part as follows:

'Q. Mr. Duncan, has the Washington Tug & Barge Company solicitors on the waterfront? A. Yes.

'Q. Soliciting business? A. Certain business; yes.

'Q. This business for its tugs, barges, and lighters? A. Yes.'

The same witness further testified:

'Q. You do go after all the ships' business, don't you, towing ships? A. No.

'Q. You have a call flag, don't you? A. Yes.

'Q. You wouldn't refuse a call, would you, unless it involved extra risk? A. We wouldn't refuse a call?

'Q. Yes. A. If the business was desirable we would not.

'Q. What would you call undersirable business? A. Business going into dangerous waters, dangerous waters where the question of collection was involved, where there was a hazard to the towboat performing the service, or if we had other work for the towboat and couldn't spare it for that job.'

Referring again to the solicitors, he said:

'Q. And the solicitors aren't restricted to soliciting business from some particular persons are they? If a nice job comes up they are supposed to go after it, aren't they? A. Yes, sir.'

During the year 1922 the respondent carried an advertisement in the Seattle telephone directory which contained this:

'Tugs--Scows--Barges.

"Anytime--Anywhere.'

'Alaska, Coastwise, Local.'

About two years before the present action was instituted 'Anytime--Anywhere' was eliminated from the advertisement. There was inserted in its place 'Private carrier.' After this the business was conducted in the same manner as before.

The respondent did not tow boomsticks, but at times had towed logs. Aside from this limitation it seems accurate to say that it was engaged in a general towing business. In fact, the officer whose testimony has already been referred to testified, referring to the business of the company as a jobbing business, that it was carried on largely as was that of other towboat companies. He said:

'Q. Your jobbing business--the business you describe as jobbing--is the same as carried on by all these other towboat companies, isn't it? A. Largely.'

From the foregoing it appears to us that it must be found that the respondent held itself out in its dealings and course of business with the public as being ready and willing for hire to perform the services rendered by it and within the field of its operations for the public generally. The test, as stated in section 49 (3d Ed.) Hutchinson on Carriers, p. 44, as to whether a carrier is public or private, is this:

'The criterion by which it is to be determined whether he belongs to the one class or the other is generally considered to be, whether he has held himself out or has advertised himself in his dealings or course of business with the public as being ready and willing, for hire, to carry particular classes of goods for all those who may desire the transportation of such goods between the places between which he professes in this manner his readiness and willingness to carry. If he has done so, he is of course to be regarded as a common carrier; but if not, he will be treated only as a private carrier for hire.'

The fact that the respondent declined to render services when the financial responsibility of the proposed customer was not satisfactory or the service required involved undue hazard does not make it a private carrier. In Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 60 L.Ed. 984, Ann. Cas. 1916D, 765, it was said:

'The next item of the plaintiff's business, constituting about a quarter, is under contracts with hotels by which it agrees to furnish enough taxicabs and automobiles within certain hours reasonably to meet the needs of the hotel, receiving the exclusive right to solicit in and about the hotel, but limiting its service to guests of the hotel. We do not perceive that this limitation removes the

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