Northwestern Auto Parts Co. v. Chicago, B. & QR Co.

• Decision Date: 04 March 1957
• Docket Number: No. 15611-15614.,15611-15614.
• Citation: 240 F.2d 743
• Parties: NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellee. NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellee. NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee. NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F.2d 743 (1957)

NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellee.

NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellee.

NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee.

NORTHWESTERN AUTO PARTS COMPANY, Appellant, v. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY, Appellee.

Nos. 15611-15614.

United States Court of Appeals Eighth Circuit.

January 17, 1957.

Rehearing Denied March 4, 1957.

Sidney S. Feinberg, Minneapolis, Minn. (Robins, Davis & Lyons, Minneapolis, Minn., were with him on the brief), for appellant.

Gene F. Bennett, Minneapolis, Minn., and Harry S. Stearns, Jr., St. Paul, Minn. (Edwin C. Matthias, Anthony Kane, Robert W. Cronon, St. Paul, Minn., Richard Musenbrock, William J. Powell, L. C. Corcoran and Stuart W. Rider, Jr., Minneapolis, Minn., were with him on the brief), for appellees.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

These actions were brought by appellant against the several named railroads, appellees herein, to recover alleged freight overcharges collected from appellant in connection with various carload shipments transported by the several carriers and delivered to the appellant at Minneapolis. Each particular appellee was sued on account of each shipment delivered by it.

The plaintiff alleged in the first count of its complaint against defendant Chicago, Milwaukee, St. Paul & Pacific Railroad Company that the court had jurisdiction under Title 28 U.S.C.A. § 1337, and that on or about October 19, 1953, there was consigned to plaintiff at Minneapolis, Minnesota, from Mira Loma, California, a carload shipment of scrap iron or steel and that said shipment was transported by various carriers in car No. UP 22983 and was delivered to the plaintiff by defendant. That the lawful freight charge, including tax, for the transportation of said car of scrap iron or steel was in the amount of $833.00, but that the defendant demanded and received of the plaintiff $2040.00 on account thereof. That by reason of the facts alleged, defendant is indebted to plaintiff in the amount of $1207.00.

The complaint contained five similar counts, each alleging a shipment of scrap iron or steel, a lawful freight charge of a certain amount, and an overcharge. The prayer was for $3,562.73 with interest.

The defendants, admitting federal jurisdiction, answered that the shipments referred to in the complaint were respectively of "tractor treads, old, used, having value only for reconditioning," or "auto parts, engine parts, and parts other than body parts, having value for reconditioning only," and that the charges made and collected were in accord with the lawful published and filed tariffs, rules, regulations, classifications and schedules of rates and charges required by the Act of Congress entitled "An act to regulate commerce," passed February 4, 1887, 49 U.S.C.A. § 1 et seq.

For the purpose of a motion for summary judgment for defendant, a stipulation of facts was entered into and filed as follows:

"Stipulation of Facts.

"It Is Hereby Stipulated and Agreed by and between the parties hereto through their respective attorneys that for the sole purpose of defendants\' Motion for Summary Judgment, the following facts may be accepted as true and correct; and in the event that said Motion is denied, it is understood that none of said statements in this Stipulation shall be binding upon any of the parties nor shall in any way be construed as an admission against them.

"1. The general nature of plaintiff\'s business includes the handling of parts for obsolete vehicles, such as Army vehicles which are no longer being manufactured. It purchases new and used parts surpluses from the Government and companies that are scrapped or obsolete in their stocks and tries to merchandise them. Such purchases are brought to a yard maintained in Minneapolis. Shipments are loaded at point of purchase with no attempt at sorting or segregation. Upon arrival at Minneapolis the shipments are unloaded and certain portions of each shipment are scrapped upon arrival. The balance of such shipments are stored for future disposition either through scrapping or reconditioning. Plaintiff does not have facilities for smelting and whenever any part of a shipment is scrapped, whether upon arrival or at a later date, the same is sold to scrap jobbers.

"2. The shipments involved in the pleadings were purchased from the United States Army as the result of published lists of material by the Government which were obsolete and overstocked on behalf of the Government or which, because of condition, were no longer of useful service. The material is listed only by general description and purchases are made on the basis of competitive bids submitted by prospective purchasers. Bids submitted by plaintiff are on a tonnage or poundage basis in competition with regular scrap iron and steel dealers and are usually slightly higher than the then prevailing market price of scrap, except that on some occasions it would be substantially higher.

"3. Said shipments were purchased from the Army for the purpose of movement to the yard of plaintiff in Minneapolis. It was the intention of plaintiff to recondition and sell as automotive parts so much of each shipment as might become economically feasible and practical. After the shipments have been stored, there are periodic checks at irregular intervals and additional amounts are scrapped. Substantial amounts of parts have the physical capacity to be reconditioned, but the following factors will determine from time to time the decision as to whether to recondition or scrap:

(a) Anticipated market for reselling.

(b) Receipt of order for particular parts.

(c) Economic cost of reconditioning.

(d) Sufficiency of reserve capital.

(e) Condition of the scrap market.

(f) Amount of plaintiff\'s storage space.

(g) Physical condition of the parts.

(h) Size of stock of particular parts on hand.

"4. All of the units in said shipments maintain their original identity at the time of shipment and ultimately are either scrapped or reconditioned for sale as automotive parts. Many of the units upon arrival in Minneapolis are so rusty and worn, or otherwise unfit for use, as to make it impractical economically to recondition them.

"5. Plaintiff has no records to establish with accuracy the quantity of each shipment which has been sold for scrap or which has been reconditioned and sold as automotive parts. The balance of such shipments on hand in plaintiff\'s storage yard is being kept by plaintiff awaiting future decision as to what shall be scrapped and what shall be reconditioned and sold. Plaintiff\'s experience in similar shipments over the years is such that on the average approximately ten per cent (10%) of shipments are reconditioned and sold as automotive parts and ninety per cent (90%) are eventually sold for scrap.

"6. Originally, similar shipments moved by rail from point of purchase by plaintiff to its yard at Minneapolis under the classification of `Scrap, Auto Parts.\' Later, other similar shipments were reclassified at 85% Scrap Iron and Steel and 15% Used Auto Parts for reconditioning purposes only. In some instances involved herein the material was described in the Bills of Lading as `auto parts and engine parts, old, used, having value for reconditioning.\' In other instances the material was originally described as `scrap iron, etc.,\' but as to the latter shipments, the defendant railroads changed the Bills of Lading to read `auto parts and engine parts, old, used, having value for reconditioning.\' In every case plaintiff paid the higher rate based on the latter classification and this action seeks recovery of the difference between the rate paid and the lower rate applicable to `scrap iron, etc.\'

"It Is Hereby Stipulated and Agreed by and between the parties hereto that defendants\' Motion for Summary Judgment may be submitted to the Court herein; and in the event that the Court or either party wished oral argument, the parties will stipulate to a time and place at the Court\'s convenience for submission of said argument; and that upon the filing of said Motion, defendants shall have seven (7) days in which to submit a written brief and plaintiff shall have seven (7) days in which to answer said brief. Defendants shall then have three (3) days in which to reply to plaintiff\'s brief."

Defendants' motion was in general terms for summary judgment in each of the actions "upon the files and proceedings" and "on the stipulation of facts" and was submitted to the court on briefs and oral argument. The judgments sustaining the motion in each of the actions and summarily dismissing each action was accompanied by the opinion of the court published at D.C., 139 F. Supp. 521. The actions were consolidated for purposes of appeal.

The position of the plaintiff-appellant is that the trial court erred in granting summary judgment and the only contention it presents for reversal is that there was a genuine issue of fact in each of the cases on which plaintiff was entitled to trial. It argues that "if this case had been submitted to the trial court on the same stipulation of facts, not on a Motion for Summary Judgment, but for the determination of all issues by the Court, the appellant might well concede that there was a basis for the conclusion which the Court reached." It cites the settled law, fully recognized by this court, that under Rule 56(c), Federal Rules of Civil Procedure, 28 U.S. C.A., a summary judgment upon motion therefor by a defendant should never be entered except where the defendant is entitled to its allowance beyond all doubt; only where the conceded facts show defendant's right with such clarity as to leave no room for controversy; with all reasonable doubts touching the existence of a genuine issue as to a...