I am unable to agree with the majority opinion. The trial court found that appellant Trudeau was a common carrier, engaged in the transportation of box shooks for hire, and that he held himself out to the public, including respondents Pacific States Box Basket Company (hereinafter referred to as Pacific Box Co.) and L.P. Michelsen, as a common carrier; that respondents knew appellant was a common carrier operating under a common carrier permit; that appellant was subject to the rules, orders, regulations, and tariffs issued by the department of public service; that, between June 17, 1940, and November 29, 1940, appellant, at the instance and request of respondents, transported twenty-three shipments of box shooks between Raymond, Washington, and Yakima, Washington, as a common carrier, under common carrier permit No. 6870.
The court further found that there was no through rate established by the department for the shipment of box shooks from Raymond to Yakima, but that at all times material to this action it was possible to ascertain the combination rate for the transportation of box shooks from Raymond to Yakima, which combination rate had been duly made and established by the department; that the combination rate consisted of the rates from Raymond to Tacoma, and from Tacoma to Yakima, and amounted to fifty-eight cents per hundred pounds.
The court further found that the rail rate on box shooks from Raymond to Yakima was twenty cents per hundred pounds in 1940, and that all parties knew what the through railroad rate was; that there was no discrimination or destructive competition existing for the hauling of the products involved in this action from Raymond to Yakima; that, during the month of September, 1941, the department established a rate of twenty-seven cents per hundred *Page 582 pounds for the transportation of articles by motor truck between Raymond and Yakima, similar to those involved in this action, and in April, 1942, the department established a rate of twenty-nine cents.
The trial court further found that the only hauling done by appellant from west to east during 1940 was the hauling of box tops and slats from the plant of Pacific Box Co. at Raymond to respondent Michelsen at or near Yakima; that, between June 17, 1940, and November 29, 1940, appellant was engaged in the business of purchasing fruit in the Yakima valley and selling the same for his own account on the coast.
In addition to the foregoing findings of fact, the court found that the rate claimed of fifty-eight cents per hundred pounds from Raymond to Yakima is excessive, unreasonable, and is an absurdity. Based upon the findings of fact, the court concluded that appellant's complaint should be dismissed.
The majority opinion admits that the judgment of the trial court cannot be sustained upon the theory that the combined rate of fifty-eight cents established by the department was unreasonable, as the question of the reasonableness of this rate is one which must, in the first instance, be determined by the department, under the authority vested in it by the statutes. The opinion, however, seeks to apply the rule that, if the judgment of the lower court can be sustained upon any legal ground, the judgment should be affirmed. The opinion then concludes that the judgment can be sustained under the provisions of Rem. Rev. Stat., Vol. 7A, § 6382-2a. In reaching the conclusion that the section last referred to is applicable herein, the opinion holds that appellant was not a common carrier, but was in fact a contract carrier, and that the section referred to contract carriers.
Respondents introduced no testimony in this case.
It is not disputed that at all times herein material appellant held common carrier permit No. 6870. Appellant testified that he had upon his truck or trucks the identification plates required by Rem. Rev. Stat., Vol. 7A, § 6382-27 *Page 583 [P.C. § 234-13 3/4b], which plates indicate whether the operator holds a common carrier or contract carrier permit. Counsel for respondents, at page 63 of the statement of facts, stated: "We knew that this man had or claimed to have a common carrier permit."
Appellant testified that he was a truck hauler for the general public, and hauled any place in the state of Washington; that he had never refused to haul for hire; that he held a common carrier permit; that he actually collected twenty cents per hundred pounds for the hauling from Raymond to Yakima. He further testified that prior to 1940 he had been purchasing fruit in the Yakima valley, and hauling it to the harbor, where he sold it, and this he continued to do in 1940, after obtaining his common carrier permit; that in 1940 he only hauled from west of the Cascades, east, for respondent Pacific Box Co. It further appears from his testimony that he did not seek other business, as he was kept busy hauling for respondent; that he filed no tariffs with the department in 1940, but that tariffs were sent to him by the department; that he was unable to figure out the tariff from Raymond to Yakima. When appellant was asked how he knew what to charge for his hauling, he answered: "Mr. Richardson told us what the rate was."
Ellery Grandstrand, testifying for appellant, stated that he was interested in Mr. Trudeau's trucking business, and was familiar with these shipments. Among other questions, the witness was asked if he knew the tariff rate on box shooks between Raymond and Yakima in 1940, to which he replied:
"No, the tariff rate becomes kind of complicated to work out, we tried to figure a rate out at the time, and we could not arrive at one. When we arrived at the mill, we figured Mr. Richardson shipped these shooks and would know what the rate was and we accepted his rate as correct and made no further check on it."
The rate named by Mr. Richardson, and which was subsequently paid by respondents and collected by appellant, was the rail rate from Raymond to Yakima. *Page 584
Appellant further testified that on or about June 12, 1941, he was ordered by the department to collect the difference between the rate charged and that established by the department and that his permit was revoked until this action was commenced.
While I appreciate that statements will be found in our decisions, beginning at least as early as Cushing v. White,101 Wash. 172, 172 P. 229, to the effect that the status of a carrier, as such, is a factual question to be determined from his method of operation, I am satisfied that since the enactment of Laws of 1935, chapter 184, p. 890, § 15 (see present law, Rem. Rev. Stat., Vol. 7A, § 6382-15 [P.C. § 234-13 1/2p]), that determination is one which must be made in the first instance by the department and not by the courts. I quote from the section last above referred to:
"Whether or not any motor vehicle is being operated upon the highways of this state within its proper classification, as defined by section 2 of this act [§ 2 defines "common carrier," "contract carrier," "private carrier," and "motor carrier"] shall be a question of fact to be determined by the department."
However, I am satisfied that in the instant case, assuming that the court had jurisdiction, the court did not err in holding that appellant was in fact a common carrier.
The majority opinion makes a point of the fact that, during the time herein mentioned, appellant neither advertised for nor solicited business from parties other than respondents. It should be kept in mind that under Rem. Rev. Stat., Vol. 7A, § 6382-11, the department is
". . . vested with power and authority, and it is hereby made its duty, to supervise and regulate every `common carrier' in this state; to make, fix, alter and amend, just, fair, reasonable, minimum, maximum, or minimum and maximum, rates, charges, classifications, rules and regulations of all `common carriers; . . .'"
Under Rem. Rev. Stat., Vol. 7A, § 6382-12 [P.C. § 234-13 1/2l], the department is vested with power, *Page 585
". . . and it is hereby made its duty, to supervise and regulate every `contract carrier' in this state; to fix, alter and amend, just, fair and reasonable classifications, rules and regulations and minimum rates and charges of each such `contract carrier; . . .'"
The only identification that the statute requires of the operator is that provided for in Rem. Rev. Stat., Vol. 7A, § 6382-27, and is as follows:
"It shall be unlawful for any `common carrier,' or `contract carrier' to operate any motor vehicle within this state unless there shall be displayed and firmly fixed upon the front and rear of such vehicle an identification plate to be furnished by the department. Such plates shall be different in design for the different classes of carriers, shall bear the number given to the vehicle by the department, and such other marks of identification as may be required, and, subject to the qualification hereinafter contained, shall be in addition to the regular license plates required by law."
Not only is it uncontroverted that appellant's vehicle had on it the plates showing the operator had a common carrier permit, but respondents admit that they knew he had such a permit.
I am of the opinion that when it appears, as it does in this case, that an operator holds a common carrier permit, and that such fact is shown by appropriate plates upon the operator's vehicle or vehicles, and where it further appears that the shipper knew that the carrier held a common carrier permit, and it further appears that the carrier had not refused to transport goods for any person requiring such transportation, such operator is clearly within the definition of a common carrier, as defined by Rem. Rev. Stat., Vol. 7A, § 6382-2. In other words, such facts constitute a sufficient advertisement to the public that the operator is a common carrier, and a shipper who procures such a carrier to transport goods for him is required to pay the rate established by the department for such hauling, regardless of any rate agreed upon between the carrier and the shipper. As long as the established rate stands, the carrier must charge and collect, and the shipper must pay, *Page 586 such rate. It is admitted here that there was an established rate of fifty-eight cents per hundred pounds for the transportation of box shooks between Raymond and Yakima.
In Miles v. Enumclaw Co-operative Creamery Corp., 12 Wash. 2d 377, 121 P.2d 945, we stated:
"The basic question for determination is whether respondent was a common carrier. If he was such, he was bound to charge and collect the rate fixed by the order of the department of public service, M.V. No. 28132. [Citing cases.]"
It may be admitted that the rate of fifty-eight cents does seem excessive, when compared with the rail rate of twenty cents, but nevertheless this does not permit a common carrier and a shipper to agree upon some rate other than that established by the department. If the rate as established is excessive, there is a method prescribed for having it adjusted.
This court was not influenced by the great difference between the rate agreed upon between the Sound Ferry Lines and Wolverton Auto Bus Co. and the amount fixed by the tariff filed with the department, in the case of Robinson v. Wolverton Auto Bus Co.,163 Wash. 160, 300 P. 533, wherein we allowed recovery on the basis of the established rate. In the cited case, we stated:
"The tariff of ten dollars per stage was fixed by a lawful tariff filed by respondent with the department of public works, and, with the other rates fixed by the tariff, was valid and effective until modified. The carrier and its patron cannot evade the collection and payment of such lawful rates by any agreement between themselves. The rate fixed by the lawful tariff on file must be charged and paid. . . . If the rate fixed by the tariff on file was unreasonable, the same was subject to attack and modification. As long as such rate stood, however, it must be held operative."
The majority opinion cites authority from other jurisdictions, as well as cases from this state, to support the conclusion reached, that whether or not an operator is a *Page 587 common carrier is a question of fact to be determined from the method of operation. Without discussing the cases, it may be admitted that they contain statements of the above rule, but, in my opinion, the cases are factually so different from the instant case as not to be controlling.
Having concluded that appellant was in fact a common carrier, it follows, of course, that Rem. Rev. Stat., Vol. 7A, § 6382-2a, cited and relied upon in the majority opinion, has no application herein.
But assuming, for the sake of argument, that appellant was only a contract carrier, and that the section last above referred to has some application, I cannot agree with the construction placed upon it by the majority opinion.
I frankly admit that it has been difficult, if not impossible, for me to determine what the legislature had in mind in passing § 6382-2a, supra. In view of the statutes vesting in the department authority to supervise and regulate both common and contract carriers, and to fix rates, and in view of the statute which prohibits either a common or contract carrier from collecting or receiving any rate, charge, or remuneration different from that established by the department, it is impossible for me to believe that it was intended by § 6382-2a to permit a contract carrier and a shipper to agree upon a rate to be charged for transportation, without at least having first filed such proposed rate and obtained the approval of the department.
There is no question raised as to the amount appellant is entitled to recover in this case, if he is entitled to recover at all.
For the reasons assigned, I am of the opinion the judgment of the trial court should be reversed, with instructions to enter judgment for appellant as prayed for in his complaint. *Page 588