JOHN C. MATSON, Trading and Doing Business as L.A. & PHOENIX EXPRESS, Appellant,
ED BRADBURY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Messrs. Windes & Miller, for Appellant.
Mr. V. L. Hash, for Appellee.
[40 Ariz. 141] ROSS, J.
Ed Bradbury, as plaintiff, brought this action against John C. Matson, doing business
as L.A. & Phoenix Express, as defendant, to recover damages for the breach of a contract of hire.
On January 9, 1930, by an agreement reciting that defendant was engaged in a general freight, express, and baggage business between Phoenix, Arizona, and Los Angeles, California, the parties bound themselves as follows: The defendant, to lease of plaintiff one 6-7 ton Stewart truck chassis No. 27X108 and trailer, and to employ him in the transportation of freight, express, and baggage between Los Angeles and Phoenix and between Phoenix and Los Angeles, guaranteeing to him a minimum of six trips per month, with a minimum tonnage of 90 tons per month, and a full tonnage with each trip from Los Angeles to Phoenix, and to pay him $17.50 per ton therefor, and $330 per month for commodities transported from Phoenix to Los Angeles; the plaintiff to enter defendant's employment; to accept no freight except for defendant's account; to furnish trucks and trailers; to keep the same up at his expense, paying all licenses, taxes, etc., and to furnish reliable, responsible, and capable drivers therefor; to maintain a 36-hour service between Phoenix and Los Angeles, for the above stipulated [40 Ariz. 142] compensation. The agreement was to go into effect as of its date and run for two years.
Plaintiff alleges in his complaint, in substance: That he and defendant undertook to carry out said agreement, and in pursuance thereof he did furnish one 6-7 ton Stewart truck chassis No. 27X108 and a trailer to transport the freight as provided in the contract, but that defendant failed to furnish the minimum tonnage guaranteed or to pay him such minimum compensation; that he was ready, able and willing to perform his part of the contract and to maintain a 36-hour service between the termini mentioned. He states his damages to be the minimum monthly tonnage of 90 tons $17.50 per ton for 5 1/2 months in making trips from Los Angeles to Phoenix, and $330 per month for 5 1/2 months for making trips from Phoenix to Los Angeles, or a total of $10,477.50, upon which he admits defendant has paid him $6,722.84. He prays for the difference or $3,749.10.
He alleges a second cause of action upon another contract entered into two days after the first and in the same language. The same breach is alleged and the same damages.
The defendant admitted the execution of the contracts sued on, but denied plaintiff had available trucks and trailers in accordance with the contracts; alleged affirmatively that plaintiff was negligent, inattentive, and careless, ignored orders of defendant, did not receive and discharge freight in accordance with his agreements, and on at least four occasions remained away from defendant's depot or shipping point, necessitating the employment of other trucks, and thereby diminishing the tonnage for plaintiff; that his drivers were without experience and familiarity with the work of loading, and were often unable to load plaintiff's trucks; denied any indebtedness.
[40 Ariz. 143] The case was tried to a jury, and resulted in a verdict in favor of plaintiff in the sum of $3,615. A motion being made for a new trial, it was granted, unless plaintiff filed a remittitur of $980. Such remittitur was filed, and judgment was entered for $2,635. From the judgment and from the order overruling the motion for new trial, defendant has appealed.
The trial court took the view that under each contract the plaintiff was entitled, whether he made six trips per month from Los Angeles to Phoenix and trucked 90 tons or less, to be paid the guaranteed minimum, providing he was ready, able, and willing to render such services, and to be paid $330 per month for return trips to Los Angeles, regardless of the tonnage, with a deduction if he made less than six monthly trips of the cost of the trips not made. In other words, the plaintiff was entitled to be paid for 90 tons per month per truck for 5 1/2 months $17.50 per ton and $330 per truck per month for six return trips, minus the cost of any trips not made. That is, if in any month he made less than six trips, the cost he would have been put to to make the round trip should be deducted from the guaranteed minimum compensation.
This we believe to be a correct interpretation of the contracts. It is undisputed that defendant did not furnish the plaintiff the stipulated minimum tonnage for transportation from Los Angeles to Phoenix, and that plaintiff did not make six round trips per month, or for the 5 1/2 months he was employed 33 round trips per truck, or 66 for the two trucks; but that he made only 44 round trips, leaving 22 not made. Defendant, however, undertook to show that plaintiff did not receive the minimum guaranteed tonnage for transportation because his drivers were incompetent and refused to accept freight offered, or were not accessible when wanted by defendant. It was shown that [40 Ariz. 144] one of plaintiff's drivers on one of his regular trips had failed to deliver a package to the consignee at Buckeye, a station on the regular traveled route between Los Angeles and Phoenix. The driver admitted such failure, but explained when he arrived in Buckeye it was night and consignee's place of ...