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Western Transp. Co. v. Terminal Freight Coop.

OPINION FILED DECEMBER 2, 1981.

WESTERN TRANSPORTATION COMPANY, PLAINTIFF-APPELLANT,

v.

TERMINAL FREIGHT COOPERATIVE ASSOCIATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. O'BRIEN and the Hon. THOMAS D. RAKOWSKI, Judges, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff Western Transportation Company filed a Chapter XI petition for rearrangement pursuant to the Bankruptcy Act. On May 30, 1979, an auditor was authorized by the bankruptcy court to audit plaintiff's freight bills to determine if claims existed for freight charges. As a result, plaintiff filed this action against defendants, Terminal Freight Cooperative Association and Waterloo Industries, Inc., seeking payment of freight undercharges for 61 shipments of goods. Some of the shipments were made as early as 1976.

Plaintiff is an interstate motor carrier which was engaged to and did carry the subject goods from Iowa to Chicago. Defendant Terminal Freight is a freight handling cooperative responsible for the transportation of the goods to various Sears Roebuck & Company stores and was the named consignee on the bills of lading which were prepared by defendant Waterloo for the shipments.

Defendants by answer and by motion to dismiss pleaded the three years' statute of limitations applicable to the recovery of freight charges under the Interstate Commerce Act. (49 U.S.C. § 11706 (a), (g) (1978 Supp. II).) The trial court granted defendants' motion to dismiss that portion of the complaint pertaining to shipments barred by the statute. The parties thereafter filed cross-motions for summary judgment. The trial court denied plaintiff's motion and granted defendants' motion for summary judgment.

Both in the trial court and in this court, the parties agree that the facts are undisputed and that the matter is proper for summary judgment. On appeal plaintiff contends that the trial court erred in holding that a portion of the action was barred by the statute of limitations. It also argues that the court erred in granting summary judgment in favor of defendants and in not awarding judgment in plaintiff's favor. It has appealed both orders, and the appeals have been consolidated. Since our view is that the trial court correctly awarded summary judgment in favor of defendants, it is unnecessary to consider the statute of limitations issue.

In granting summary judgment for defendants, the trial court found that there had been no reconsignment of the goods within the meaning of the Middlewest Bureau Tariff 125-D, Item 820, which required that extra charges be assessed against a shipper whenever a reconsignment occurred. The tariff in question provides in pertinent part:

"Reconsignment or Diversion

A request for the reconsignment or diversion of a shipment will be subject to the following definitions, conditions and charges:

1. DEFINITION OF RECONSIGNMENT OR DIVERSION

For the purpose of this rule, the terms "reconsignment" and "diversion" are considered to be synonymous and the use of either will be considered to mean:

a. A change in the name of the consignor or consignee.

b. A change in the place of delivery within original destination point.

c. A change in the destination point.

d. Relinquishment of shipment at point ...


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