Schrodt v. Sullivan Transfer and Storage Co., 85-005

• Decision Date: 28 March 1986
• Docket Number: No. 85-005,85-005
• Citation: 383 N.W.2d 767,222 Neb. 347
• Parties: Agnes SCHRODT, Appellant, v. SULLIVAN TRANSFER AND STORAGE COMPANY, a Nebraska Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 767

383 N.W.2d 767

222 Neb. 347

Agnes SCHRODT, Appellant, v. SULLIVAN TRANSFER AND STORAGE COMPANY, a Nebraska Corporation, Appellee.

No. 85-005.

Supreme Court of Nebraska.

March 28, 1986.

Syllabus by the Court

1. Summary Judgment. A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, that the ultimate inferences to be drawn from those facts are clear, and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. The burden is on the moving party to show that no issues of material fact exist, and unless the party can conclusively do so, the motion must be overruled.

3. Summary Judgment. Summary judgment is not appropriate, even where there are no conflicting evidentiary facts, if the ultimate inferences to be drawn from those facts are not clear.

4. Summary Judgment. The party against whom the motion is directed is entitled to the benefit of all favorable inferences to be drawn from the facts.

Daniel E. Wherry of Johnston, Barber, Wherry & Knight, Lincoln, for appellant.

William G. Blake of Pierson, Ackerman, Fitchett, Akin & Hunzeker, Lincoln, for appellee.

KRIVOSHA, C.J., and WHITE, and SHANAHAN, JJ., and RIST, District Judge, and COLWELL, District Judge, Retired.

WHITE, Justice.

Agnes Schrodt appeals from an order of the Lancaster County District Court sustaining the appellee's, Sullivan Transfer and Storage Company's, motion for summary judgment. We reverse and remand for trial.

This case arises out of a contract dispute between Agnes Schrodt and Sullivan Transfer. Evidence was received in support of and opposing the motion. Taking a version most favorable to the appellant, the facts appear to be as follows. From 1956 until January 1982 Sullivan was in the businesss of moving household goods interstate and intrastate. Sullivan and Mrs. Schrodt entered into a written "Packing Contract" on June 8, 1972, which provided that Mrs. Schrodt was to pack the household goods prior to their being moved, supply the necessary packing materials, employ and pay packing laborers, provide workmen's compensation, maintain accurate tax records, and provide liability insurance for packed goods. The original agreement also set out in some detail the rate of compensation for Mrs. Schrodt and her workers. What these individuals were to be paid depended upon the item packed, the type of container used, and the destination of the shipment--that is, whether it was an interstate or intrastate move.

The disputed provision of the packing contract, paragraph 1(c), provides:

(c) If at any time during the term of this contract any of the rates and charges herein specified for any packers service shall not be the lawful rates and charges therefor, the lawful rates and charges shall be deemed substituted herein in place and stead of those herein specified and not then being lawful.

The record indicates that after discussions with Sullivan's manager, Earl Bottlinger, Mrs. Schrodt understood this provision to provide for a system of pay increases for her, depending upon the packing rates set by the Interstate Commerce Commission, which Sullivan can legally charge its customers. If the ICC tariff rates increased Mrs. Schrodt was to receive the same percentage increase in her compensation.

After the packing contract was executed but before either party rendered any services, Mrs. Schrodt and Sullivan, through Mr. Bottlinger, modified the contract by a parol agreement. Under the new agreement Mrs. Schrodt was to be an employee rather than a subcontractor of Sullivan. This part of the written agreement was modified because of the quantity of paperwork it would generate for Mrs. Schrodt. However, according to Mrs. Schrodt, the method by which her salary increases were to be calculated was unaffected by the parol agreement--when ICC rates went up, Mrs. Schrodt's rate of pay was to go up accordingly.

Approximately 2 years later, Mrs. Schrodt discovered in conversations with drivers and other Sullivan employees that the ICC rates had increased. Mrs. Schrodt asked Mr. Bottlinger about the rate increase and inquired when she would receive her raise pursuant to the orally modified packing contract. Mr. Bottlinger replied that he would speak with his superiors about the matter, but evidently he never did, or if he did he never responded to Mrs....