APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1979.
Can a railroad carrier collect for tariffs over and above prices quoted to and paid by a shipper?
The trial court is affirmed.
Sankey Brothers often employed the Illinois Central Gulf as its carrier. Illinois Central Gulf (ICG) billed defendant on the basis of previous telephone quotations and it is undisputed that prior to the instant dispute Sankey Brothers promptly paid all the shipping bills.
On April 15, 1976, the railroad billed Sankey Brothers for unabsorbed switching charges incurred in the years 1973, 1974, and 1975. These charges result from the switching of railroad cars from ICG to other railroads and had not been included in the original bills paid by Sankey. Defendant refused to pay the switching costs and ICG filed suit seeking payment of the charges, and Sankey filed a counterclaim seeking damages for the amount it was injured in relying upon the original price quotations given by ICG. The trial court dismissed the counterclaim for failure to state a cause of action and later entered summary judgment in the amount of $25,547.85 plus costs for the plaintiff railroad.
1, 2 On appeal, defendant contests the trial court's decision to dismiss the counterclaim and to enter summary judgment for the plaintiff. However, defendant's notice of appeal did not mention the dismissal of the counter-claim and that issue therefore is not properly before this court. City of Chicago v. Baran (1972), 6 Ill. App.3d 29, 284 N.E.2d 320; Scheffler v. Ringhofer (1966), 67 Ill. App.2d 222, 214 N.E.2d 575.
Turning to the summary judgment issue, section 57 of the Civil Practice Act states that summary judgment is available when there are no material facts in issue. (Ill. Rev. Stat. 1977, ch. 110, par. 57.) Here, the plaintiff contends that summary judgment is proper because the defendant has admitted the existence of a specific tariff for switching cars and the absorption by the plaintiff of a part of those charges. Defendant has also admitted that it received shipments by the same railroad cars that were the subject of the switching charges.
Defendant, however, counters plaintiff's arguments by alleging: (1) that the doctrine of equitable estoppel prevents plaintiff from recovering the switching charges; and (2) that the plaintiff did not make a timely demand for the switching charges. These two arguments merge into a single allegation that had defendant realized what the ultimate rate would be, it would have hired alternative carriers.
Such an argument is not persuasive. In conformance with the Public Utilities Act (Ill. Rev. Stat. 1977, ch. 111 2/3, pars. 37, 38) carriers must collect the full charges imposed by tariffs. Obviously, this provision is to prevent any preference or discrimination among shippers.
Except for this general statutory bar mandating collection of full charges, there is a dearth in fact, a near vacuum of Illinois law on the subject. Plaintiff relies heavily on the 1905 decision of Illinois Central R.R. Co. v. Seitz (1905), 214 Ill. 350, 73 N.E. 585. There, the shipper prepaid certain freight charges. The charges included a tariff rate which was based upon the cargo classification. Subsequently, the classification was deemed to be incorrect and the carrier raised the charges to reflect the correct tariff. The shipper refused to pay and the railroad then sold the cargo in lieu of payment, thereby precipitating the lawsuit.
The supreme court held that had the shipper been solely at fault in causing the misclassification, then the railroad could retroactively charge the proper tariff. However, since the railroad freight agent observed the goods being loaded, the shipper alone could not be blamed for the misclassification. Therefore, the court decided that the railroad could not, ex post facto, hike the rate charges since its failure to charge the proper rate at the time the first bill was submitted was not the sole fault of the shipper.
We view Seitz as an extremely tenuous foundation for the defendant's argument. The Seitz decision has never been cited as controlling authority by any other appellate court and, in fact, has specifically been discounted as being against the weight of authority. (See North German Lloyd v. Elting (2d Cir. 1938), 96 F.2d 48.) Moreover, four years after its decision, the supreme court acknowledged that Seitz was somewhat inconsistent with the holdings of other jurisdictions. (Kirby v. Chicago & Alton R.R. Co. (1909), 242 Ill. 418, 90 N.E. 252, rev'd on other grounds (1912), 225 U.S. 155, 56 L.Ed. 1033, 32 S.Ct. 648.) In truth, in over 70 years Seitz has been cited only ...