Kentner Truck Line, Inc. v. Maier Brewing Co.

SHOEMAKER, J.

Plaintiff Kentner Truck Line, Inc., a radial highway common carrier, in a complaint of three counts, sued defendant Maier Brewing Company for undercharges growing out of transportation services furnished between the years 1952-1954 inclusive. Each count carried a demand for somewhat less than the jurisdictional amount of the superior court but the total fulfilled this requirement. A demurrer was filed to each count. It was overruled as to count one but was sustained as to counts two and three on the ground that said counts were barred by the statute of limitations. Following trial by court, judgment was entered for plaintiff on the first count in the sum of $2,531.36 which included $73.73 in federal taxes, from which judgment defendant appeals.

The facts are not in dispute. During the years 1953 and 1954 defendant kept one million or more pounds of rice on

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hand at the premises of its supplier, C. E. G-rosjean Rice Milling Company, in San Francisco. Defendant’s president testified that in January of 1953 a representative of plaintiff quoted a price of about 36 or 37 cents per 100 pounds for the bulk shipping by truck of said rice from San Francisco to defendant’s place of business in Los Angeles. He stated, “The rate was based on 80,000 pounds rail. ’ ’

Plaintiff introduced into evidence one copy of a bill of lading and two copies of a freight bill for each of 49 shipments, these documents bearing various dates from March 5, 1953, to May 10, 1954 (Plaintiff’s Exhibit No. 1). The bills of lading are signed by a representative of defendant and defendant was billed for each of these shipments at the agreed rate of 37 cents and paid said bills in accordance with their terms.

Plaintiff’s case was presented on the theory that the billing at the above-mentioned rate was erroneous, inasmuch as that rate is lower than the minimum tariff prescribed by the Public Utilities Commission for such shipments. Plaintiff showed that the rate actually charged ivas a rail rate applicable to the product here involved only when shipments thereof are in quantities of at least 60,000 pounds. No single shipment in the instant case weighed more than 43,000 pounds (Plaintiff’s Exhibit No. 1).

Plaintiff also introduced into evidence the tariff regulations promulgated by the Public Utilities Commission (Plaintiff’s Exhibit No. 2) and prayed judgment for the minimum charges specified therein which it alleged to be yet unpaid, plus the taxes aforementioned. The court’s findings are in substantial harmony with the plaintiff’s contentions.