Butler v. Bell Oil & Refining Co.

POX, J. pro tem.

Defendant appeals from a judgment in favor of plaintiff, who brought this action as the assignee for collection of the Bradley Truck Company. Plaintiff’s assignor was at all times herein engaged in business as a licensed highway contract carrier under the Highway Carriers’ Act (Stats. 1935, chap. 223, as amended by Stats, of 1937 and 1939, respectively; Deering’s Gen. Laws, Act 5129a, as amended), transporting property for compensation by motor vehicle over the public highways of the state. As such highway contract carrier, plaintiff’s assignor transported crude oil for defendant (and its predecessor) from certain wells to defendant’s refinery. It charged and collected freight charges less than the minimum rates prescribed by the California Railroad Commission for such services. Plaintiff, therefore, seeks to recover the difference between the legally prescribed rate and the rate paid by the defendant pursuant to a purported contract with said carrier.

[730]

In the language of the appellant, “the sole question here presented is: Does the Highway Carriers’ Act permit a suit by the carrier to collect from the shipper a higher rate of transportation than that solemnly agreed to and accepted by it at the time the service was rendered?” This question has been answered in the affirmative by the recent decision of this court in the case of

Gardner

v.

Rich Mfg. Co.

(1945), 68 Cal.App.2d 725 [158 P.2d 23]. It was there stated (p. 730): “The schedule of minimum rates . . . [established by the Railroad Commission] became a part of every contract between a highway contract carrier and the shipper. [Citing cases.] The tariff applicable, on the facts, to any particular shipment cannot be changed by an agreement between the parties . . . and the carrier or its assignee is entitled to collect the proper rate. [Citing authorities.] Otherwise, the statute would be ineffectual for the purpose for which it was enacted.”

The only argument here advanced that was not presented in the Gardner case is that the act does not and was not intended to regulate the conduct of the shipper; that to enforce the tariff established by the Railroad Commission against the appellant is, in effect, to regulate the shipper, and that said tariff is not binding on appellant because the act does not require notice to be given to the shipper. It is true, as stated in