Humphrey Feed & Grain v. Union Pac. R. Co.

• Decision Date: 17 August 1977
• Docket Number: No. 41088,41088
• Citation: 257 N.W.2d 391,199 Neb. 189
• Parties: HUMPHREY FEED & GRAIN, INC., a Nebraska Corporation, Appellant and Cross Appellee, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee and Cross Appellant.
• Court: Nebraska Supreme Court

Page 391

257 N.W.2d 391

199 Neb. 189

HUMPHREY FEED & GRAIN, INC., a Nebraska Corporation, Appellant and Cross Appellee, v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee and Cross Appellant.

No. 41088.

Supreme Court of Nebraska.

Aug. 17, 1977.

Syllabus by the Court

1. In actions by a shipper against a carrier for lost goods, a prima facie case is made out when the shipper shows delivery of a quantity of goods to the carrier; arrival at destination of a lesser quantity, taking into account normal losses inherent in goods such as grain due to loss of moisture; and the amount of damages.

2. Where the bill of lading reflects the shipper's weight and load count, the weight listed on the bill of lading is not, in and of itself, sufficient evidence of the quantity of goods delivered by the shipper to the carrier. In such a case the shipper must produce further evidence of the quantity of goods delivered to the carrier.

3. In cases involving loss of property in interstate shipments, interest and attorney's fees may not be recovered under section 74-715, R.R.S. 1943.

4. The Interstate Commerce Commission and the federal courts do not have exclusive jurisdiction of claims against interstate carriers. The Interstate Commerce Act did not supersede the jurisdiction of state courts in cases where the decision does not involve the determination of matters calling for the exercise of the administrative power and discretion of the Interstate Commerce Commission; or relate to a subject as to which the jurisdiction of the federal courts had otherwise been made exclusive.

5. A charge of unlawful discrimination on the part of a common carrier may be predicated upon the furnishing to some patrons of services or facilities which are unjustifiably denied to others.

6. Under the doctrine of "primary jurisdiction," preliminary resort to the Interstate Commerce Commission is required where the inquiry is essentially one of fact and of discretion in technical matters, and when uniformity can only be secured if determination is made by the Interstate Commerce Commission.

7. The Interstate Commerce Commission must make the initial determination as to whether rail service provided by an interstate carrier is reasonable.

8. It is the general rule that a railroad has a duty under its state franchise to maintain and repair its lines and provide service thereon. Such duty is based on the railroad's obligation to properly provide services to the public impartially, without discrimination for or against persons demanding similar services.

9. Whether or not a railroad has a duty to maintain a spur track or sidetrack depends on whether the track benefits only private interests, or whether the track has become part of the main line and is used to serve the public at large.

10. Where a claim by a shipper involves the questions of whether rail service and facilities provided by an interstate carrier were reasonable and nondiscriminatory, the doctrine of "primary jurisdiction" applies.

Raymond M. Crossman, Jr., Crossman, Barton & Norris, Omaha, for appellant and cross appellee.

Daniel P. Morisseau, Omaha, for appellee and cross appellant.

Heard before PAUL W. WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and C. THOMAS WHITE, JJ.

BRODKEY, Justice.

This is an action by Humphrey Feed & Grain, Inc. ("Humphrey"), against Union Pacific Railroad Company for damages resulting from alleged losses of grain transported by the railroad for Humphrey; and for loss of profits allegedly caused by the railroad's failure to maintain in good repair a sidetrack which serves the premises leased to Humphrey by the railroad. The District Court granted summary judgment in favor of Union Pacific on Humphrey's claim for lost profits. Humphrey received a jury verdict on its claim for damages resulting from losses of grain, and the trial court denied Humphrey interest or attorney's fees on its judgment. Humphrey has appealed from the summary judgment granted to the railroad, and from the denial of interest and attorney's fees on the judgment. Union Pacific has cross-appealed from the judgment in Humphrey's favor on the ground a verdict should have been directed. We affirm the judgment for Humphrey for damages for loss of grain, and also the denial of interest and attorney's fees. We vacate, with instructions, the summary judgment granted in favor of Union Pacific on the claim for lost profits.

In its petition, Humphrey alleged that between October 1, 1971, and December 31, 1974, it had delivered to the railroad 121 carloads of grain for shipment, and had received a bill of lading for each car which reflected the number of pounds of grain loaded aboard each car. Plaintiff alleged that each carload of grain was delivered by the defendant or a connecting carrier to a point of destination with a shortage of grain in excess of generally accepted shrinkage. Humphrey alleged that the railroad is subject to the provisions of the Carmack Amendment, Title 49 U.S.C.A., § 20, par. (11); and it was liable to Humphrey thereunder for the loss of the grain in excess of normal shrinkage. Humphrey further alleged that it had filed claims with the railroad for the alleged losses within the time provided by section 74-715, R.R.S.1943; that the claims were not adjusted or paid by the railroad within the specified time period; and that it was therefore entitled to interest and reasonable attorney's fees under that section. Humphrey prayed for judgment against the railroad in the amount of $21,677.36, plus interest and attorney's fees.

In a separate cause of action, Humphrey alleged that it was the lessee of a portion of the railroad's right-of-way, and that there is an implied covenant under the lease that the railroad would keep its sidetrack, which serves the leased premises, in such a state of repair and maintenance so as to provide Humphrey with full and satisfactory shipping facilities. Humphrey also alleged that the railroad had a statutory duty to keep the sidetrack in repair under section 74-503, R.R.S.1943. Humphrey alleged that the railroad has failed to maintain the sidetrack in good repair during the period from September 1, 1972, through December 31, 1974; that only three cars could be "spotted" on the sidetrack due to the disrepair; that the railroad failed to make necessary repairs despite oral demands by Humphrey; and that Humphrey received approximately 130 cars less on the average than his competitors as a result of the disrepair of the sidetrack. Humphrey prayed for a judgment against the railroad in the amount of $91,000 for lost profits incurred as a result of the alleged failure of the railroad to maintain its sidetrack in good repair.

In its answer, Union Pacific denied the shortages of grain and its liability on Humphrey's claim for damages. The railroad admitted the existence of the lease, but denied it had failed to keep the sidetrack in good repair, and denied the allegation of lost profits. Union Pacific filed a motion to dismiss the claim for lost profits on the ground that the subject matter of that claim was outside the jurisdiction of the District Court, but that motion appears not to have been ruled on by the trial court. The railroad also moved for summary judgment on the claim for lost profits, and that motion was sustained by the District Court. As previously stated, Humphrey received a jury verdict and judgment in its favor on its claim for damages incurred as a result of grain losses, but the trial court denied interest and attorney's fees on that judgment.

We first examine the contentions of the parties in regard to the judgment in Humphrey's favor on its claim for damages resulting from grain losses. The facts adduced at trial are as follows.

From October 1, 1971, through December 31, 1974, Humphrey delivered 118 carloads of grain to the railroad for shipment. Three claims for 121 carloads originally filed were withdrawn prior to or during the trial. The cars were "spotted" by the railroad on the sidetrack which serves Humphrey's business, and were loaded by Humphrey. In loading the cars, Humphrey uses a "dump" scale, which is a balance scale governed by a 560 or 600 pound weight. Grain is loaded into the scale, which automatically dumps the grain when the 560 or 600 pound weight limit is reached. A counter is automatically tripped when each dump occurs so that the number of dumps is recorded.

After a car is loaded, the railroad is notified, and its agent seals the car. The agent prepares a bill of lading, and in so doing uses the weight figure provided by Humphrey. After the grain reaches its destination, an account of sales is sent to Humphrey, which shows the weight at destination. The bills of lading and the account of sales regarding the 118 shipments involved in this case were received in evidence, and showed that the weight at destination was less than the weight at origin, taking into account the tariff of normal shrinkage of 1/8 of 1 percent, on the 118 shipments.

In support of the contention that the dump scale was accurate, Humphrey's owner testified that the weights arrived at by using the dump scale compared with weights recorded on Humphrey's truck scale. Such comparisons were made when a grain producer delivered grain to Humphrey in a truck and the grain was weighed on the truck scale. When the grain was immediately loaded on railroad cars via the dump scale, the truck scale weight could be compared to the dump scale weight. The truck scale was inspected annually by the State of Nebraska, and passed inspections for accuracy.

Humphrey also introduced evidence that one of its customers, who had a truck too large for its truck scale, would load grain on the truck via the dump scale, and the weight would be checked by weighing the truck at a scale of another elevator. Comparisons between the dump scale weight and the weight recorded on the scale of the other elevator were favorable.

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