APPEAL from the Circuit Court of Cook County; the Hon. JAMES
TRAINA, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 2, 1980.
Plaintiff appeals from a summary judgment entered in defendant's favor in an action to collect accrued demurrage charges, and the sole issue is the propriety of the judgment.
Defendant, a manufacturer of stampings for the automobile industry, has maintained a plant in Gary, Indiana, since 1950. The plant is adjacent to the tracks of plaintiff and the Pennsylvania Railroad Company — both of which supply defendant with empty freight cars and remove the cars from the plant after they are loaded. The empty cars would be brought to defendant's plant and left on defendant's tracks where they would remain until defendant's crews brought them to the loading area. Plaintiff had always assessed demurrage charges on its cars from the time defendant switched the empty cars to the loading area. In 1973, however, plaintiff concluded that the parties had improperly interpreted the tariff governing the computation of demurrage and, in October of that year, it began assessing demurrage from the time it first placed the cars on defendant's tracks. Defendant paid these new charges from that time, but refused to pay additional demurrage charges for the previous three years recomputed under this new interpretation of the tariff.
Plaintiff then brought the instant action seeking to recover the additional charges for the three immediately preceding years, as allowed by section 16(3) of the Interstate Commerce Act (49 U.S.C. § 16 (3) (1976)). Defendant counterclaimed for the amount of the increase in charges it had paid since October 1973, on the basis that the amount collected exceeded that contemplated in the tariff. Discovery commenced which included a request for admission of facts regarding matters which had occurred since 1951 but, on motion of plaintiff, the trial court limited the request to matters arising in or after 1968.
Defendant eventually moved for summary judgment, and included among the attached supporting documents was part of the deposition of Paul Telep, who was defendant's traffic manager. He stated that a meeting was held in 1951 between representatives of plaintiff, defendant, Pennsylvania Railroad, and the Demurrage and Storage Bureau (an agency which settles disputes in the interpretation of tariffs); that at this meeting the tariff was interpreted as requiring plaintiff to begin assessing demurrage from the first 7 a.m. after cars were apporpriated for loading by defendant's switching crews; that no one from the Interstate Commerce Commission (ICC) ever took exception to this interpretation; that the railroads would deliver 10 to 12 empty cars at a time and place them on lead tracks in the plant; that the switching of cars within the plant was handled by defendant's engines and crews; that every day defendant furnished the records of its cars in the plant to aid plaintiff in assessing demurrage; that in 1950 and 1951, plaintiff "many times" delivered cars to the lead tracks which defendant had not ordered; that defendant did not ask that they be removed "because we had the room at the time in the yard so it wouldn't be necessary"; that in 1955, defendant constructed new tracks in its plant and continued to add tracks into the 1960's as business grew; that the purpose of these tracks was to store empty cars until they could be loaded; and that the empty cars could not be kept at the railroad's yards because "[t]hey could not give us that type of switching."
Portions of the deposition of Robert Bowser, defendant's assistant traffic manager from 1950 to 1970 and traffic manager thereafter, were also attached, in which he stated that defendant did not give plaintiff particular instructions as to where the empty cars should be parked upon delivery and that "[f]or the most part [defendant] left it to [plaintiff's] discretion as long as they followed normal operating procedures where basically they didn't block main switches and their own line of movement"; that plaintiff left empty cars and picked up loaded cars at tracks designated A through E; that "[t]hey were tracks where the railroads delivered cars to [defendant], so they were interchange tracks"; that until 1973, demurrage was assessed from the first 7 a.m. after the cars were removed from tracks A through E and taken by defendant to one of its buildings for loading; and that defendant's engines and crews would bring the cars from the storage areas to the loading docks and also return them after they were loaded.
Also attached was an affidavit of Bowser, containing much of his deposition testimony but also stating that the additional tracks defendant had constructed "served as a supplement to the railroad's yards and enabled the railroads to place cars on the plant tracks which otherwise would have been kept in the railroad's yards"; that plaintiff often delivered cars that defendant had not ordered; that while defendant would occasionally request plaintiff to remove the unordered cars if there was no room for them, they were generally permitted to remain, as some were likely to be used by defendant for loading; that defendant's new tracks were constructed in order to store more empty cars; that the additional tracks were a convenience to the railroads since it enabled them to furnish more cars without increasing the frequency of delivery; that the railroads also used defendant's tracks for setting out its inoperable cars, interchanging cars between railroads, and sometimes engines were left by plaintiff in defendant's yard when the crew's time had expired; that defendant conducted its own switching operations within the plant; and that representatives of the ICC and the railroad Demurrage Bureau had checked the demurrage records and took no exception to the method of assessment.
Defendant also attached part of the deposition of plaintiff's superintendent of stations, who said that from 1956 to 1973 the ICC made inspections but had never objected to plaintiff's method of calculating demurrage; and that in 1973, plaintiff decided that the demurrage charges had been erroneously computed, and it began to calculate demurrage on an "interchange basis," under which an assessment would begin from the time plaintiff placed the car on defendant's interchange track until it was returned there by defendant after loading.
In a supporting memorandum, defendant essentially argued that the facts as disclosed by depositions and affidavits were similar to those in three other cases in which it was held that demurrage should properly have run from the time the car was about to be loaded, rather than at an earlier time (Southern Ry. Co. v. Aluminum Co. of America (E.D. Tenn. 1951), 119 F. Supp. 389, aff'd per curiam (6th Cir. 1954), 210 F.2d 139; Pacific Portland Cement Co. v. Western Pacific R.R. Co. (9th Cir. 1950), 184 F.2d 34, cert. denied (1950), 340 U.S. 906, 95 L.Ed. 655, 71 S.Ct. 282; Chicago & Northwestern Ry. Co. v. Union Packing Co. D. Neb. 1971), 326 F. Supp. 1304), and that it was therefore entitled to judgment as a matter of law.
Plaintiff, in turn, moved to strike defendant's request for summary judgment on the grounds that (1) there yet existed questions of material fact; and (2) the arguments in support of defendant's motion were improperly based upon facts which occurred prior to 1968, which was in violation of the previous order in which a request of defendant to admit facts was limited to matters occurring in or after 1968. Plaintiff's reply memorandum had attached an affidavit from R.E. Horner (an officer of plaintiff), stating that plaintiff would occasionally include an unordered car among those it delivered to defendant but that such cars were removed when returned to the interchange track by defendant; that defendant's engines took over all movements of the cars within the plant after plaintiff had delivered them to one of defendant's interchange tracks; that plaintiff did not use defendant's storage tracks for any purpose of its own and did not have access to defendant's tracks for any purpose other than to leave empty cars on the tracks; that because plaintiff always had adequate storage space at its own Gibson yard, there was no advantage to plaintiff in keeping more empty cars at defendant's plant; and that he had no knowledge that anyone from the ICC or Demurrage Bureau ever reviewed the method of assessing demurrage.
After a hearing, defendant's motion for summary judgment was granted, and this appeal followed.
Plaintiff contends that material questions of fact exist and that the trial court therefore erred in granting defendant's motion for summary judgment. In this regard, it is clear that summary judgment is proper only if the pleadings and affidavits show that the movant is entitled to judgment as a matter of law. (Manuel v. McKissack (1978), 60 Ill. App.3d 654, 377 N.E.2d 219; American Buyer's Club v. Zuber (1978), 57 Ill. App.3d 899, 373 N.E.2d 786.) However, it is a drastic remedy which should be granted only when the right of the movant thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App.3d 986, 376 N.E.2d 657; United Security Insurance Co. v. Mason (1978), 59 Ill. App.3d 982, 376 N.E.2d 653), and if a genuine issue as to a material fact exists, summary judgment is improper (Sielski v. Tioga Homes, Inc. (1978), 62 Ill. App.3d 340, 379 N.E.2d 336; Baier v. State Farm Insurance Co. (1975), 28 Ill. App.3d 917, 329 N.E.2d 543, aff'd (1977), 66 Ill.2d 119, 361 N.E.2d 1100).
It should initially be noted that the demurrage charges are governed by Freight Tariff No. 4-I, I.C.C. No. H-36, effective June 1, 1968, and Freight Tariff No. 4-J, I.C.C. No. H-59, effective April 1, 1973 (which replaced Tariff No. 4-I). The relevant portions are phrased ...