Trudeau v. Pacific States Box & Basket Co.

• Decision Date: 24 April 1944
• Docket Number: 29064.
• Citation: 20 Wn.2d 561,148 P.2d 453
• Court: Washington Supreme Court
• Parties: TRUDEAU v. PACIFIC STATES BOX & BASKET CO. et al.

148 P.2d 453

20 Wn.2d 561

TRUDEAU v. PACIFIC STATES BOX & BASKET CO. et al.

No. 29064.

Supreme Court of Washington, En Banc.

April 24, 1944

Action by A. T. Trudeau against Pacific States Box and Basket Company and L. P. Michelsen to collect difference between rate charged and legal rate on box shooks transported by plaintiff. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

JEFFERS J., dissenting.

JEFFERS J., dissenging.

Appeal from Superior Court, Pacific County; John I. O'Phelan, judge.

John T. Welsh, of South Bend, and Theodore B Bruener, of Aberdeen, for appellant.

Velikanje & Velikanje, of Yakima, Arthur A. Goldsmith, of Portland, Or., Fred M. Bond, of South Bend, and Smith Troy, Hugh A. Dressel, and Joseph P. Lavin, all of Olympia, for respondents.

BEALS Justice.

Plaintiff in this action, A. T. Trudeau, a resident of Hoquiam, was for some years the owner of a truck, which, during the fruit season, he was accustomed to use in driving through the Yakima district, where he purchased fruit, which he sold in and around the Grays Harbor district. In 1939 he received from the department of public service a permit to operate as a common carrier, and a notice to this effect was properly displayed on his truck. In order that his trip from his home to Yakima might be profitable, he agreed with defendant Pacific States Box & Basket Company to haul from its mill in Raymond to defendant L. P. Michelsen, a fruit packer in Yakima, loads of box shooks to be made into fruit boxes, which had formerly been shipped to Michelsen by rail. It does not appear that there had been any regular trucking delivery service between Raymond and Yakima, and when the question of freight charges was discussed between plaintiff and the box company, the latter stated that it had been paying the railroad for transporting the shooks at the rate of twenty cents per hundred pounds. This rate was satisfactory to plaintiff, and between June 17 and November 29, 1940, plaintiff carried shooks from Raymond to Mr. Michelsen at Yakima, at the rate of twenty cents per hundred pounds.

Prior to September, 1941, the state public service commission had promulgated no tariff governing charges for hauling freight by motor truck from Raymond to Yakima, the through rate according to effective railroad tariffs being the rate above stated, twenty cents per hundred pounds. In September, 1941, the public service commission established a through rate between Raymond and Yakima, for motor-borne freight such as box shooks, in the sum of twenty-seven cents per hundred pounds. By combining the preexisting motor truck rates between Raymond and Tacoma, and Tacoma and Yakima, a rate of fifty-eight cents per hundred pounds was effective prior to September, 1941.

In September, 1941, plaintiff instituted this action against the defendants above named, alleging that he was a common carrier and subject to the rules, orders, regulations and tariffs promulgated by the department of public service of Washington; that between June and November, 1940, plaintiff, at defendants' request, had transported twenty-three shipments of box shooks, property of defendant box company, from Raymond to Yakima, where he had delivered the shipments to defendant Michelsen; that plaintiff had charged and collected from defendants, by way of freight, a sum less than the lawful rates prescribed by the department; and that the difference between the rate charged and collected by plaintiff and the legal rate amounted to $1,807.05, for which amount plaintiff demanded judgment.

Defendant box company answered, admitting the hauling of the freight, and alleging affirmatively that the shooks had been delivered to defendant Michelsen at the box company's plant at Raymond, to whom the answering defendant made a freight allowance of twenty cents per hundred pounds, and that the box company had not hired plaintiff or contracted with him or agreed to pay any transportation or other charges.

Defendant Michelsen answered, denying the material allegations of plaintiff's complaint, and pleading as an affirmative defense that the box company had included in the price of shooks the freight charges thereon, and that he had not, by any contract, assumed liability for freight or other charges.

Plaintiff having denied the affirmative allegations in the answers of the two defendants, the cause was tried to the court sitting without a jury, and resulted in the entry of findings of fact, from which the court concluded that plaintiff's action should be dismissed, with prejudice. From a judgment dismissing the action, plaintiff has appealed.

Error is assigned upon the exclusion of certain testimony offered by plaintiff; upon the making of one finding of fact; and upon the entry of judgment dismissing the action.

The trial court found that appellant was, at all times material to the action, the holder of a common carrier permit, and was 'a common carrier engaged in the transportation of box shooks for hire,' and that he held himself out to the public, including respondents, as a common carrier, of all of which respondents were advised. The court found that appellant had carried box shooks and collected for carriage thereof, as alleged in his complaint; that there was no other rate established by the department of public service for the carriage of box shooks from Raymond to Yakima; and that at all times material to the action, the combination rate for such carriage, according to the schedules established by the department, amounted to fifty-eight cents per hundred pounds. The court further found that appellant never filed any tariff rate with the department; that he never circularized the trade, advertised in any paper, nor solicited any establishments for hauling for hire; that the railroad freight rate for hauling shooks from Raymond to Yakima was twenty cents per hundred pounds, and that the department of public service had never established any through rate for hauling shooks by auto truck between the points mentioned; that there was no discrimination or destructive competition existing for the hauling of box shooks from Raymond to Yakima; that during the month of September, 1941, the department established a rate of twenty-seven cents per hundred pounds for hauling such merchandise from Raymond to Yakima; and that in April, 1942, the department established a rate of twenty-nine cents per hundred pounds for such carriage. Findings Nos. 13 and 14 read as follows:

'13. That between the 17th day of June, 1940, and the 29th day of November, 1940, and prior thereto, plaintiff was engaged in the business of purchasing fruit in the Yakima valley and selling the same for his own account on the coast. That the only hauling done by plaintiff from west to east was the hauling of box tops and slats from the plant of the defendant, Pacific States Box and Basket Company at Raymond, Washington, to the defendant, Michelsen, at or in the vicinity of Yakima, Washington. Plaintiff only hauled fruit for sale on his own account from Yakima to the west.

'14. That the rate claimed of 58 cents per hundred pounds from Raymond to Yakima for carload lots, and 65 cents per hundred pounds for less than carload lots, is excessive, unreasonable, and is an absurdity.'

The department, by a regulation, had provided that: 'Except as otherwise provided in this tariff * * * (d) The lowest rate or combination of rates * * * over the route which a shipment moves shall be the legal rate * * *,' and for the purposes of this opinion and upon the record we assume that pursuant to the department's rate schedules, the combination rate of fifty-eight cents per hundred pounds was the legal rate for carriage of box shooks by motor freight from Raymond to Yakima.

By Rem.Rev.Stat. § 6382-11, the legislature conferred power upon the department of pubilc service, and made it the duty of the department, to prescribe rules, rates and regulations for common carriers. By §§ 6382-12 and 6382-13, similar powers were conferred upon the department in connection with the operation of contract carriers, and private and exempt carriers. By § 6382-19, it is provided that no common or contract carrier may receive greater or less remuneration than that established by the department, By chapter 166, Laws of 1937, relating to transportation by motor vehicles, the legislature amended the preexisting law in certain particulars. By § 2 of this act, Rem.Rev.Stat. § 6382-2, the legislature defined the different classes of carriers, as follows:

'(e) The term 'common carrier' means any person who undertakes to transport property for the general public by motor vehicle for compensation, whether over regular or irregular routes, or regular or irregular schedules, including motor vehicle operations of other carriers by rail or water and of express or forwarding companies.

'(f) The term 'contract carrier' shall include all motor vehicle operators not included under the terms 'common carrier' and 'private carrier' as herein defined in paragraph (e) and paragraph (g), and further shall include any person who under special and individual contracts or agreements transports property by motor vehicle for compensation.

'(g) A 'private carrier' is a person who, in his own vehicle, transports only property owned or being bought or sold by him in good faith and only when such transportation is purely an incidental adjunct to some other established private business owned or operated by him in good faith.'

Laws of 1935, chapter 184, providing for the supervision and regulation of motor vehicle transportation, by § 2, defined terms used in the act, subdivisions (e) and (f) defining the terms 'common carrier' and 'contract carrier,' respectively. These definitions...