McMahon v. Republic Van & Storage Co., Inc.

SCHAUER, J.

Plaintiff appeals from a judgment of dismissal of his complaint (first amended) as against demurring defendants Republic Van & Storage Co., Inc. (hereinafter called Republic), and Paul Smith, president of Republic, following the sustaining of their general demurrer thereto without leave to amend. We have concluded that the complaint does not establish that the action is barred by any limitation statute applicable to the demurring defendants, and that the judgment should therefore be reversed.

Plaintiff’s original complaint was filed February 6, 1961, and in addition to Republic and Smith named as defendants Majestic Warehouses, Inc. (hereinafter called Majestic), Southern Pacific (Railroad) Company, and three individuals alleged to be coemployes of plaintiff. Thereafter, on August 21, 1961, the first amended complaint was filed against the same defendants.

In both the original and the amended complaint plaintiff

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alleges in relevant part: In June 1953 he entered into a shipping order agreement with defendant Majestic, as a freight forwarding agent, for the storage in Chicago, Illinois, and later shipment of plaintiff’s household goods and certain other equipment from Chicago to plaintiff’s residence in Hawthorne, California; the goods were then estimated to weigh 5,500 pounds. In March 1954 part of plaintiff’s goods arrived in Los Angeles via the Southern Pacific Railroad and was delivered to the warehouse of defendant Republic. In April 1954 plaintiff was billed by Republic for $1,770 “for the then represented transportation and storage charges” of defendant Majestic “in addition to $600.00 previously paid to” Majestic by plaintiff, and was informed by Republic and by defendant Smith, its president, “that the total weight shipped was 16,780 pounds” and that plaintiff would be required to pay storage and transportation charges accordingly. The true weight of the shipment was only 5,500 pounds but defendants reported it to be 16,780 pounds with “intent to deceive and defraud” plaintiff. Republic refused to permit plaintiff to examine the shipment for “approximately 24 months after delivery to” its warehouse. Defendants Majestic, Republic and Smith also induced the three individual defendants who were plaintiff’s coemployes to “threaten plaintiff with dismissal from his employment . . . unless all of said demanded shipping and storage charges were paid.” Plaintiff believed and relied upon the representations and statements, paid the charges demanded, and received delivery of the goods February 7, 1958. On May 10, 1960, plaintiff “learned for the first time that said representations were false and untrue.” Plaintiff seeks recovery of $4,400 as alleged fraudulent overcharges by defendants, plus $600 as special damages and $15,000 exemplary damages.