Gardner v. Basich Bros. Construction Co.

SPENCE, J.

Defendants appeal from a judgment awarding plaintiffs the difference between the amount defendants paid plaintiffs for a trucking job at the hourly rate and the larger amount allegedly due at the ton-mileage rate. Both minimum rates were fixed in public tariffs issued by the Railroad Commission (now the Public Utilities Commission) pursuant to the Highway Carriers’ Act. (Stats. 1935, ch. 223, p. 878; 2 Deering’s Gen. Laws, Act 5129a; now Public Utilities Code, §§ 3501-3809.) As grounds for reversal, defendants rely on these two principal contentions: (1) that plaintiffs waived the higher rate; and (2) that plaintiffs’ action is barred by the statute of limitations. (Code Civ. Proe., § 339, subd. 1.)

In 1948 defendants were engaged in constructing a state highway. They employed plaintiffs, licensed highway car

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riers, to haul certain materials by dump trucks. The hauling was done during the period from April 1 to early in July, 1948. Pursuant to its power to makes rules and regulations establishing rate schedules for transportation services and to provide for their enforcement, the Railroad Commission (Highway Carriers’ Act,

supra,

§10; now Pub. Util. Code, § 3665) had established two minimum rates which might be applied to the type of hauling here involved: (1) ton-mileage; and (2) hourly. Section No. 4, page 40, Highway Carriers’ Tariff No. 7, issued by the commission in October, 1947, and applicable here, provided: “Rates in this section are Hourly Rates and . . . will apply only when notice in writing is given to the carrier, before the transportation commences, of the shippers’ intention to ship under such rates. When such notice is given rates in Sections Nos. 2 and 3 will not apply. ’ ’ Section 2 concerned ton-mileage rates.

In the preliminary discussions of the parties, plaintiffs told defendants that they would prefer to work at the ton-mileage rate rather than on an hourly basis; and that in the absence of a written requisition, the hauling would be based on the commission’s standard rate, fixed on the minimum ton-mileage scale. No written requisition or work order was given either before or after the work started April 1, 1948; However, defendants daily furnished cards to plaintiffs’ drivers and the latter completed them so as to show the hours worked. On May 18, June 10, and July 9, 1948, defendants gave plaintiffs written schedules of the number of hours worked during the preceding month with checks attached payable to plaintiffs based on the hourly rate. Plaintiffs accepted the schedules and checks without objection.