United States v. Bethke, Civ. No. 4301.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtMarion F. Jones, E. B. Evans, Denver, Colo., for defendant
Citation132 F. Supp. 22
Decision Date09 June 1955
Docket NumberCiv. No. 4301.
PartiesThe UNITED STATES of America, Plaintiff, v. Frederick A. BETHKE, individually, and doing business as the Bethke Truck Lines, Defendant.

132 F. Supp. 22

The UNITED STATES of America, Plaintiff,
v.
Frederick A. BETHKE, individually, and doing business as the Bethke Truck Lines, Defendant.

Civ. No. 4301.

United States District Court D. Colorado.

June 9, 1955.


132 F. Supp. 23
COPYRIGHT MATERIAL OMITTED
132 F. Supp. 24
Donald E. Kelley, U. S. Atty. for Dist. of Colorado, Denver, Colo., Robert D. Inman, Asst. U. S. Atty. for Dist. of Colorado, Boulder, Colo., Clifford C. Chittam, Asst. U. S. Atty. for Dist. of Colorado, Denver, Colo., for plaintiff

Marion F. Jones, E. B. Evans, Denver, Colo., for defendant.

CHRISTENSON, District Judge.

This is an action by the Government of the United States to recover a claimed freight overcharge collected by the defendant truck lines.

From the admissions in the pleadings, the stipulations of the parties and from the evidence concerning the few facts which were not agreed upon, the Court finds that the Bethke Truck Lines was a common carrier during all times material herein; that as such common carrier it received a shipment of Government property consigned by the Philadelphia Quartermaster's Depot to an ROTC detachment at Fort Collins, Colorado, which shipment was originally received by Pacific and Atlantic Shippers' Association, a freight forwarder, shipped by it to Chicago, thence through Independent Truckers, Inc. from Chicago to Denver, and picked up at Denver and delivered to Fort Collins by the defendant truck line; that at the time of the shipment, Pacific and Atlantic Shippers' Association was a party to a contract with the Government, dated May 10, 1954, pursuant to Section 22 of the Interstate Commerce Act, as amended, 49 U.S.C.A. § 22, which contract provides, among other things, "That on less-than carload shipments moved by or for the account of the United States Government, the maximum rates to be charged shall not exceed the lowest standard less-than carload, all rail rates or charges"; that the rates as computed under the terms of the contract between Pacific and Atlantic Shippers' Association and the Government were $69.71 less than the standard rates charged by Bethke Truck Lines on its own behalf and that of the initial and intermediate carrier; that the standard rates charged and collected by Bethke Truck Lines were in accordance with the regular published tariffs approved by the Interstate Commerce Commission for the respective carriers; that the "Section 22" rates contemplated by the contract between the Government and Pacific and Atlantic Shippers' Association were not contained in any tariff published by the Interstate Commerce Commission; that no notation of the special contract between the Pacific and Atlantic Shippers' Association and the Government appeared on the bill of lading or other papers received by defendant; that Bethke Truck Lines received the shipment without knowledge of the special rates chargeable under the contract, and was requested by the Independent Truckers, Inc., the intermediate carrier, to charge the regular published rates; that the regular rate of $4.62 was assessed from Philadelphia to Denver and that Pacific and Atlantic Shippers' Association's proportion of the total freight charge of $309.54 between these points was $205.69 and that Independent Truckers, Inc.'s proportion of the $309.54 was $103.85 and that in addition, the defendant assessed his regular rate of 57 cents from Denver to Fort Collins, or a total charge of $38.22; that for the total charges, defendant presented a voucher to the Government for $347.76 which was paid; that on November 3, 1947, the defendant remitted to Independent Truckers, Inc. $309.54, representing the charges on the through rate from Philadelphia to Denver; that on August 21, 1950, the Government

132 F. Supp. 25
presented a claim for overcharge to the defendant on the theory that the lowest standard less-than carload all rail rate to which it was entitled under its "Section 22" contract with the Pacific and Atlantic Shippers' Association was $4.15, making the alleged correct charge $278.05, the overcharge claim being $69.71, the amount sued for in this case

The defendant contends that the Government's cause of action, if any it has, exists against the Pacific and Atlantic Shippers' Association and not against the defendant; that defendant is the terminal carrier and was not a party to any through rates, Philadelphia to Fort Collins, or any "Section 22" quotation; that he was entitled to collect his full tariff rate for shipment, Denver to Fort Collins; that he had no notice and was charged with no notice of the special "Section 22" agreement between the Government and the Pacific and Atlantic Shippers' Association, was not bound by any such agreement and had the right to submit voucher for, and remit, charges based upon the regular tariffs; that the "Section 22" contract itself provided that the Pacific and Atlantic Shippers' Association would be deemed both the receiving and delivering carrier and that having retained...

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6 practice notes
  • Mader v. James, Nos. 4517
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 1976
    ...282 Minn. 46, 193 N.W.2d 291; United States v. Cambridge Trust Co., 1 Cir. 1962, 300 F.2d 76; United States v. Bethke, D.C.Colo.1955, 132 F.Supp. 22, 26, and cases there cited; Annotation, 82 A.L.R. 307. Section 17, Restatement of the Law of Restitution, p. 76, 'A person who has paid money ......
  • Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co., No. 202
    • United States
    • Court of Appeals of Maryland
    • June 18, 1957
    ...299, 311-312, 52 S.Ct. 541, 76 L.Ed. 1115. The trial judge and the appellee rely strongly on case of United States v. Bethke, D.C.Colo., 132 F.Supp. 22. There, an action was brought by the Government to recover claimed freight overcharge collected by defendant's Bethke's, truck lines on a f......
  • Demarkles v. RUDOLPH WURLITZER COMPANY, Civ. A. No. 55-452.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 9, 1955
    ...upon the extent of the identity of the causes of action, but here we have a further element. It is doubtful whether Wurlitzer could have 132 F. Supp. 22 brought the equitable replevin suit in the federal court to enforce rights given only by the Massachusetts statute. Cf. Daley v. Ort, D.C.......
  • Western Truck Lines, Ltd., B-148465
    • United States
    • Comptroller General of the United States
    • July 15, 1963
    ...their part to accept any amount less than their proper earnings under the regularly published and filed tariffs. United States v. Bethke, 132 F.Supp. 22. In your request for review, you take no exception to the actual charges alleged to be applicable by the government. Your sole complaint n......
  • Request a trial to view additional results
6 cases
  • Mader v. James, Nos. 4517
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 1976
    ...282 Minn. 46, 193 N.W.2d 291; United States v. Cambridge Trust Co., 1 Cir. 1962, 300 F.2d 76; United States v. Bethke, D.C.Colo.1955, 132 F.Supp. 22, 26, and cases there cited; Annotation, 82 A.L.R. 307. Section 17, Restatement of the Law of Restitution, p. 76, 'A person who has paid money ......
  • Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co., No. 202
    • United States
    • Court of Appeals of Maryland
    • June 18, 1957
    ...299, 311-312, 52 S.Ct. 541, 76 L.Ed. 1115. The trial judge and the appellee rely strongly on case of United States v. Bethke, D.C.Colo., 132 F.Supp. 22. There, an action was brought by the Government to recover claimed freight overcharge collected by defendant's Bethke's, truck lines on a f......
  • Demarkles v. RUDOLPH WURLITZER COMPANY, Civ. A. No. 55-452.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 9, 1955
    ...upon the extent of the identity of the causes of action, but here we have a further element. It is doubtful whether Wurlitzer could have 132 F. Supp. 22 brought the equitable replevin suit in the federal court to enforce rights given only by the Massachusetts statute. Cf. Daley v. Ort, D.C.......
  • Western Truck Lines, Ltd., B-148465
    • United States
    • Comptroller General of the United States
    • July 15, 1963
    ...their part to accept any amount less than their proper earnings under the regularly published and filed tariffs. United States v. Bethke, 132 F.Supp. 22. In your request for review, you take no exception to the actual charges alleged to be applicable by the government. Your sole complaint n......
  • Request a trial to view additional results

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