Wolverton Auto Bus Co., Inc. v. Robinson

• Decision Date: 26 February 1929
• Docket Number: 21650.
• Citation: 274 P. 1056,151 Wash. 67
• Parties: WOLVERTON AUTO BUS CO., Inc. v. ROBINSON.
• Court: Washington Supreme Court

274 P. 1056

151 Wash. 67

WOLVERTON AUTO BUS CO., Inc. v. ROBINSON.

No. 21650.

Supreme Court of Washington

February 26, 1929

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by the Wolverton Auto Bus Company, Inc., against John S Robinson, as Receiver of Sound Ferry Lines, Inc. From a judgment of the superior court reversing an order of the State Department of Public Works, plaintiff appeals. Affirmed.

Cleland & Clifford, of Olympia, for appellant.

Robert Bronson and William H. Gorham, both of Seattle, for respondent.

PARKER J.

This is an appeal by the Wolverton Auto Bus Company from a judgment of the superior court for Thurston county, reversing an order of the State Department of Public Works ordering respondent John S. Robinson, as receiver of the Sound Ferry Lines, to transport the stages of the Wolverton Auto Bus Company between Port Ludlow and Edmonds, across Puget Sound, for a compensation of $100 per month, in accordance with a special contract entered into between the Wolverton Company and the Ferry Lines prior to its affairs passing into the hands of Robinson as receiver.

As we view the right of this controversy, the controlling facts are not in dispute, and may be summarized as follows: During the period in question, the Wolverton Company has operated an autostage line as a public carrier, under a certificate of public convenience and necessity issued to it by the Department of Public Works, serving the northerly portion of the Olympic Peninsula, to and from Port Ludlow, the westerly landing of the route of the Ferry Lines on the westerly shore of Puget Sound. During the period in question the Ferry Lines has operated as a public carrier across Puget Sound between Port Ludlow on the westerly shore and Edmonds on the easterly shore of Puget Sound. During the period in question, the Yost Auto Company has operated, as a public carrier, an autostage line between Richmond and Seattle, under a certificate of public convenience and necessity issued to it by the Department of Public Works. Neither the Wolverton Company nor the Yost Company had or has any transportation rights as a public carrier over the route of the Ferry Lines, though they, of course, had and have the right to be served as shippers by the Ferry Lines upon payment of the proper tariff rates the same as any other member of the public. Through passenger rates were duly established over the lines of these three public connecting carriers and duly apportioned between them, wholly apart from the transportation of the stages of either the Wolverton Company or the Yost Company over the route of the Ferry Lines. Shipping rates were duly established, by tariff effective July 12, 1926, over the route of the Ferry Lines, reading in part as follows:

'Touring Auto Busses or Stages:

'Not over seven passenger capacity same rate as heavy passenger cars;

'Over seven passenger and not over fifteen passenger capacity, $5.00;

'Over fifteen passenger and not over twenty-five passenger capacity, $8.00;

'Over twenty-five passenger capacity, $10.00.'

These rates have never been lawfully changed, unless we must hold that they were effectually and lawfully changed as between the Wolverton Company and the Ferry Lines by special contracts thereafter entered into between them, which we shall presently notice. In the spring of 1927, the Wolverton Company and the Yost Company entered into a contract by which the stages of each should run through over their entire through-fare route without requiring their passengers to change from stage to boat and from boat to stage. This, of course, necessitated payment of a ferry charge for shipping the stages over the route of the Ferry Lines. Instead of complying with the then duly established tariff rates, above quoted, the Wolverton Company and the Ferry Lines entered into a contract in writing, reading as follows:

'March 5, 1927.

'AGREEMENT.

'In the interest of Public Convenience, it is hereby mutually agreed between the Wolverton Auto Bus Co. and the Sound Ferry Lines, Inc., that the stages of the Wolverton Auto Bus Co., carrying passengers to the Sound Ferry Lines, Inc., terminal at Port Ludlow, will be carried across on the ferry or ferries operating between Edmonds and Port Ludlow under the following conditions:

'Stages carrying passengers on regular scheduled trips meeting the ferry on its regular scheduled trips will be carried between Edmonds and Port Ludlow or vice versa for $2.50 per round trip. * * *

'This agreement to become effective upon the placing in commission on the Edmonds-Ludlow Route the new ferry now being built for the Sound Ferry Lines, Inc.

'The Wolverton Auto Bus Co. reserves the right to accept or reject this agreement after a sixty day trial over the new ferry and does not bind them to operate all of its trips through from the Peninsula to Seattle, or vice versa.

'This agreement to remain in full force and effect for three years, if the Wolverton Auto Bus Co. accepts it.'

Operation commenced and continued under this contract until April 1, 1928, when there became operative a new oral contract, or an oral modification of that contract, by which the Ferry Lines were to carry the stages of the Wolverton Company for a compensation of $100 per month; it being understood that there would be three stage round tripe per day over the route of the Ferry Lines. On May 9, 1928, respondent Robinson, was, by the superior court for King county, duly appointed receiver of the Ferry Lines, and as such he then took charge of its property and affairs looking to the liquidation of its affairs. On May 17, 1928, Robinson, as receiver, communicated by letter to the Wolverton Company as follows:

'Seattle, May 17th, 1928.

'Wolverton Auto Bus Company, Central Terminal, Seattle, Washington. Gentlemen: Supplementing my letter of May 10th, 1928, I beg leave to say that following your suggestion at a conference here between us and our attorneys on May 11th, we took up the matter informally with the Department of Public Works. After a full discussion of the matter, I asked said Department to certify the lawful existing and effective tariffs of the Sound Ferry Lines, Inc. I now have such certified tariffs before me, and with respect to the Edmonds-Port Ludlow route, they show the following classification and rates:

"Touring Auto Busses or Stages

"Not over seven passenger capacity same rate as heavy passenger cars.

Over seven passenger and not over

fifteen passenger capacity ............. 5 00 #A--

Over fifteen passenger and not over

twenty-five passenger capacity ......... 8 00 #A--

Over twenty-five passenger capacity .... 10 00 #A--

" '#Advance. This rate effective July 12, 1926.'

'My attorneys inform me that this tariff applies to your stages and that I will be held legally accountable for its collection. Assuming that my information is correct, that your stages are of such capacity as to require the application of the maximum rate, and that they are making six crossings per day, you have already become indebted to me as Receiver for this service (apart from our proportion of the passenger fare) in the sum of $480.00. The amounts involved in this transaction are so large that I feel that the proper administration of my trust requires me to insist that in the future you either,

'(1) Pay the appropriate tariff as each stage goes aboard the ferry,

'(2) Or furnish bond satisfactory as to amount and surety to cover monthly settlements.

'Unless you have arranged to comply with one or the other of these proposals by the morning of Saturday, May 19th, I will be compelled to deny your stages transportation.

Very truly,

'[Signed]

J. S. Robinson

'Receiver of Sound Ferry Lines, Inc.'

This communication was followed by a formal complaint being made by the Wolverton Company, addressed to the Department of Public Works, looking to the compelling of Robinson, as receiver, to comply with...