Bottemueller v. Wilson & Co.

• Decision Date: 14 October 1944
• Docket Number: No. 1757.,1757.
• Citation: Bottemueller v. Wilson & Co., 57 F. Supp. 766 (W.D. Mo. 1944)
• Parties: BOTTEMUELLER v. WILSON & CO.
• Court: U.S. District Court — Western District of Missouri

57 F. Supp. 766

BOTTEMUELLER v.WILSON & CO.

No. 1757.

District Court, W. D. Missouri, W. D.

October 14, 1944.

Harry B. Jenkins, of Kansas City, Mo., for plaintiff.

Gage, Hillix, Shrader, Hodges, Cowherd & Phelps, Carson E. Cowherd and Richard K. Phelps, all of Kansas City, Mo., for defendant.

REEVES, District Judge.

The defendant seeks a summary judgment under Rule 56(b),Federal Rules of Civil Procedure,28 U.S.C.A.followingsection 723c.This rule provides that: "A party against whom a claim * * * is asserted * * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

It is the contention of the defendant that the action is barred by limitation for the reason that the suit is upon a liability created by statute and that under the law of the State of Kansas, where the obligation originated, the limitation upon such action is three years.

The plaintiff's second amended complaint alleges substantially that he is a contract carrier by motor in interstate commerce and was such at the time he contracted with the defendant to haul certain of its products from the place where processed in the State of Kansas to points in one or more southern states.As a contract carrier the plaintiff asserts that he had complied with the interstate commerce law, and particularly Section 318 of Title 49 U.S.C.A.This section requires the filing of a schedule of tariff charges for transportation services.Said section contains a provision that: "No such carrier shall demand, charge, or collect a less compensation for such transportation than the charges filed in accordance with this paragraph * * *."For the services rendered to or the hauls made for the defendant the schedules filed with the Interstate Commerce Commission provided for the payment of 98 cents per hundred weight for meat products and 83 cents per hundred weight for lard products.The contract, however, between the parties provided for the payment of $1 per hundred weight and 85 cents per hundred weight respectively for the services mentioned.After the services were performed defendant actually paid 90 cents and 70 cents respectively.Plaintiff has sued for the difference between the tariffs actually paid and the schedules filed with the Interstate Commerce Commission and promulgated as required by law.It is upon this state of facts that the defendant asserts that the action, being upon a liability created by statute, is barred by the three year statute of limitations.

1.Quite obviously the suit is one on a hauling or transportation contract.The plaintiff undertook to perform certain services for the defendant for a compensation set out in schedules attached to a written contract.The schedule of charges did not agree with published rates filed by the plaintiff and promulgated by him as an interstate contract carrier by motor.Under such circumstances the published tariffs superseded the agreed rates and entered into and became a part of the contract just as effectively as if written therein.The liability was not created by statute.Such liabilities are created by the revenue laws, statutory official bonds and statutory double liability in cases of certain corporations—a liability created by statute is a liability which would not exist but for the statute.Fidelity & Deposit Co. of Maryland v. Lindholm, 9 Cir., 66 F.2d, 56, 89 A.L.R. 279.

In the instant case, the plaintiff, being a contract carrier, agreed with the defendant to transport its products for compensation specified in a schedule attached to the contract.The published rates...