Transmix Corp. v. Southern Pac. Co.

• Decision Date: 09 December 1960
• Citation: 187 Cal.App.2d 257,9 Cal.Rptr. 714
• Court: California Court of Appeals Court of Appeals
• Parties: TRANSMIX CORPORATION, a corporation, etc., Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, et al., Defendants and Appellants. Civ. 24643.

Page 714

9 Cal.Rptr. 714

187 Cal.App.2d 257

TRANSMIX CORPORATION, a corporation, etc., Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, et al., Defendants and Appellants.

Civ. 24643.

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

Dec. 9, 1960.

Rehearing Denied Dec. 27, 1960.

Hearing Denied Jan. 31, 1961.

E. D. Yeomans, Walt A. Steiger, Los Angeles, for appellants.

Turcotte & Goldsmith, Jack O. Goldsmith, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from a judgment in favor of plaintiff with reference to certain claims arising out of overcharges on shipments of cement.

The plaintiff brought the action to collect from the railroad companies freight overcharges on 217 carload shipments of cement, consigned and delivered to plaintiff by defendants at Los Angeles. Two hundred and fourteen (214) cars originated at Permanente, which is located on a branch line of Southern Pacific Company at a point west of Palo Alto, and three cars originated at Kentucky House, which is located in or near Calaveras County. Defendant carriers collected freight charges based upon a rate of 31 cents per 100 pounds from Permanente and 35 cents per 100 pounds from Kentucky House in the total amount of $120,997.31. Plaintiff thereafter contended that the proper charge to have been applied was $72,619.39 and that therefore it was overcharged $48,377.92 and was entitled to such amount plus interest until paid. The claim was denied by the railroads and this action followed. The plaintiff asserted that the published through rate assessed by defendants was inapplicable, that there was an excess charge on each of the shipments and that there was a lower combination rate which was in effect during all of the times in question. $An extensive stipulation of facts was filed (which became a part of the pre-trial conference order) and thorough and complete trial briefs were submitted to the trial judge. The stipulation, among other things, contained the basic freight tariff, referred to as No. 88-T, issued January 31, 1951 and effective March 24, 1951 and supplements as follows: Supplement No. 36 issued March 10, 1954 and effective April 14, 1954; Supplement No. 37 issued April 6, 1954 and effective May 13, 1954; Supplement No. 46 issued June 3, 1955 and effective July 9, 1955; Supplement No. 66 issued October 4, 1956 and effective November 10, 1956; Supplement No. 67 issued October 26, 1956 and effective December 3, 1956.

Two hundred and fourteen (214) carloads of the shipment were from Permanente to Los Angeles and were shipped between April 25, 1954 and October 4, 1955. Three carloads of the shipment originated at Kentucky House and delivered at Los Angeles, and the shipments were made between April 15, 1955 and May 4, 1955. It was agreed in effect that if the plaintiff's contentions were correct with reference to the Permanente shipments, that judgment would necessarily follow likewise for the Kentucky House shipments. In each instance the shipments were transported from the point of origin to Los Angeles solely by Southern Pacific Company which then turned over the cars to Union Pacific at Los Angeles for the purpose of switching them to the plaintiff's place of business.

What is the proper rate from Palo Alto to Los Angeles is the real question in the action. The 15 percent surcharge and the switching charges are actually not in dispute in this case.

Plaintiff contended in part that it was entitled to the particular rate it sought under the Intermediate Rate Rule which was contained in the basic Tariff, No. 88-T. That rule reads in pertinent part as follows:

'Commodity Rates Applicable From (Or To) Intermediate Points (Applies on Intrastate Traffic only).

'Except as otherwise specifically provided in connection with individual rates, the rates named herein will apply from (or to) directly intermediate points on the same line or route. * * *'

That rule is contained in the tariff in order to protect against violations of the long and short haul clauses contained in Section 460 of the Public Utilities Code and Article XII, Section 21, California Constitution.

The through rate from Permanente and Kentucky House to Los Angeles in Item 1735-C of Supplement No. 36 was stated to be 31 cents and 35 cents per 100 pounds, respectively. Defendants assert that such rates were the effective rates for the shipments in question.

Plaintiff claimed that there was a published rate of 11 cents per 100 pounds from Redwood City to El Centro. Redwood City is north and west of Palo Alto on the lines of the Southern Pacific. El Centro is in Imperial County in the southeast part of the state and is located on the lines of the Southern Pacific. Plaintiff asserts that if the 11-cent rate applies from Redwood City to El Centro that it necessarily then applies from Palo Alto to Los Angeles; Palo Alto being intermediate from Redwood City and Los Angeles, and Los Angeles intermediate to El Centro. In other words, Palo Alto and Los Angeles are both intermediate between Redwood City and El Centro.

The tariffs provide for a combination rate and prevail over through rates whenever they result in a lower charge. The tariff (88-T) recites as follows:

'Item 245--Rates Within California (Applies on California Interastate Traffic only).

'Whenever a Class Rate and a Commodity Rate are named between specified points, the lower of such rates is the lawful rate, unless some combination of Class Rates, or of Commodity Rates, or of Class and Commodity Rates makes a lower through rate.'

This item was in effect during all of the time the shipments were made. Plaintiff arrived at the rate it contends for by taking the published 7 1/2-cent rate from Permanente to Palo Alto and adding thereto the intermediate 11-cent rate, making a total of 18 1/2 cents per 100 pounds as distinguished from the through rate of 31 cents from Permanente to Los Angeles, contended for by the railroads.

In the basic tariff (88-T) in Item 475 it is set forth that the rate per 100 pounds from '3896 Redwood City' to '8 El Cerrito' is 11 cents. It is also stated at the top of the page where such item is listed that 'The number prefixed to a station name is its Index Number.'

In Supplement No. 37 to Tariff 88-T the same phraseology with reference to index numbers is contained at the top of the page and it is further set forth in Item 475A, which cancels Item 475, that the rate per 100 pounds from '3896 Redwood City' to '8 El Centro' is 11 cents.

In Supplement No. 46 to Tariff 88-T the same wording with reference to index numbers is contained at the top of the page as heretofore indicated in Supplement No. 37. In item 475A mentioned therein as cancelling item 475 the rate per 100 pounds from '3896 Redwood City' to '8 El Centro' is 11 cents.

Supplement No. 66 to 88-T sets forth substantially the same matters and figures as are set forth in Supplements Nos. 37 and 46.

Supplement No. 67 to 88-T duplicates substantially the wording contained in the original tariff (88-T) and sets forth that for item 475A from '3896 Redwood City' to '8 El Cerrito' the rate per 100 pounds is 11 cents.

It is admitted that Supplements numbered 37, 46 and 66 provided for an 11-cent rate from Redwood City to some point of destination; the sole question of any consequence in the action is what destination is prescribed by the tariffs, El Cerrito or El Centro. It is to be noted that El Centro appeared in the tariff items in the supplements under question from May 13, 1954 to December 3, 1956; or a period in excess of two and one-half years.

Item No. 2905 of the basic tariff (88-T) provided an authorized route from Redwood City, and also from Permanente to each and every station in California on the lines of Southern Pacific Company, including El Centro. The shipment of plaintiff in question moved solely over the Southern Pacific Company railroad from Permanente to Los Angeles.

The plaintiff and the Southern Pacific Railroad Company each had one witness, namely an expert on rates. It was stipulated that each witness was an expert in the field and a rate expert was defined to be:

'* * * one who is thoroughly conversant with the theory and practice of rate making; who is well qualified in the art of rendering opinions with respect to compilation and interpretation of tariffs. He is one who is qualified to quote rates, upon request, from freight railroad tariffs. That a rate expert is one who is qualified and has knowledge with respect to the history of rate making and the compilation of those rates into tariffs.' (Emphasis added.)

The testimony of the experts was in sharp conflict and many conflicting inferences could be drawn from their testimony.

The trial judge found in favor of the plaintiff holding in effect that the 11-cent rate was in effect from Redwood City to El Centro during the period in question. The amount of the judgment is not in question as the parties had previously stipulated that if the court found for the plaintiff the amount should be the amount as awarded plus interest.

The court further found substantially the same with reference to the shipments from Kentucky House.

The general rule has been stated repeatedly to the effect that where the evidence is in conflict this court will not disturb the findings of the trial court. Every presumption is in favor of the judgment and we must, in this case, consider the evidence in the light most favorable to the plaintiff and give it the benefit of every reasonable inference and resolve the conflicts in favor of the judgment. See Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183; Richter v. Walker, 36 Cal.2d 634, 640, 226 P.2d 593; Newman v. Albert, 170 Cal.App.2d 678, 683, 339 P.2d 588; Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757; E. K. Wood Lumber Co. v. Higgins, 54 Cal.2d 91, 4 Cal.Rptr. 523.

The evidence in favor of the plaintiff was substantial, clear...