COURT OF APPEALS DECISION DATED AND RELEASED January 22, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2658
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
CON-WAY CENTRAL
EXPRESS, INC.,
Plaintiff-Appellant,
v.
SUPER VALU STORES,
INC.,
Defendant-Respondent.
APPEAL from a judgment
and an order of the circuit court for Kenosha County: MICHAEL S. FISHER, Judge.
Affirmed in part, reversed in part and cause remanded with
directions.
Before Snyder, P.J.,
Brown and Anderson, JJ.
BROWN, J. Con-Way
Central Express, Inc., brought a collection action against Super Valu Stores,
Inc., for past due freight and “accessorial” services. Accessorial services are extra services that
Con-Way performs for the recipient, such as sorting the delivered goods and
providing advance notice of the delivery time.
Super Valu's allegedly past due bills pertained to forty-nine deliveries
that Con-Way made to Super Valu's warehousing operation between 1990 and
1992.
After a bench trial, the
court rejected the vast majority of Con-Way's claims. In this appeal, Con-Way challenges two aspects of the judgment.[1] With regard to a freight charge for a
shipment of plastic film, Con-Way argues that the trial court erroneously found
that Super Valu did not “accept” this shipment in light of evidence that Super
Valu stamped and signed a receipt.
Next, with regard to the various accessorial charges, Con-Way asserts
that the trial court incorrectly ruled that it failed to meet its burden of
persuasion. Con-Way alleges on appeal
that its documentary evidence undeniably supports its claim for these charges.
We reverse the portion
of the judgment addressing the freight charge and affirm the portion addressing
the accessorial charges. We conclude
that the stamped and signed receipt and the admission of a Super Valu manager
that this receipt indicated that his firm was indeed liable for these charges
are grounds for upsetting the trial court's finding that this delivery was
never accepted. With respect to the
accessorial charges, however, we affirm the trial court's conclusion that Con-Way's
documentary evidence was insufficient, standing alone, to support its case.
Background
This case involves
forty-nine separate deliveries that Con-Way made to Super Valu's distribution
center between October 1990 and December 1992. Con-Way initiated this action in November 1993, seeking total
damages of roughly $10,030. The damages
were segregated into three classes consisting of (1) freight charges; (2)
accessorial charges; and (3) late fees incurred because Super Valu failed to
make payments. On appeal, however,
Con-Way has narrowed its case to two claims, a freight charge on a shipment of
plastic film (roughly $431) and various accessorial charges on other shipments
(roughly $6131).
Con-Way calculated its
damages pursuant to the tariffs it filed with the Interstate Commerce Commission. As a common carrier, federal law required
Con-Way to file notice of its rates for hauling and accessorial services with
the ICC. See 49 U.S.C.
§ 10762, amended by ICC Termination Act of 1995, Pub. L. 104-88,
tit. 1, § 102(a), 109 Stat. 803.
Under ICC law, Con-Way's filing of tariffs served as public notice
regarding its rates and method of calculating charges. See Louisville & Nashville R.R.
Co. v. Mead Johnson & Co., 737 F.2d 683, 689 (7th Cir. 1984). Thus, the legal theory supporting Con-Way's
two claims is that Super Valu is liable because the rates have been properly
filed with the ICC. See Werner
Transp. Co. v. Shimon, 249 Wis. 87, 89, 23 N.W.2d 519, 520 (1946) (“the
consignee is the presumptive owner of the goods transported and if he accepts
the goods in the capacity of owner the law implies a promise on his part to
pay the charges.”) (Emphasis
added.)
Freight
Charge on Plastic Film
The trial court found
that Con-Way “failed to establish sufficient evidence to show” that Super Valu
“ever accepted” this shipment of goods.
Accordingly, it ruled that Super Valu was not liable for the freight
fees related to this shipment.
Con-Way's evidence
supporting the freight claim consisted of a stamped receipt which bears the
signature of a Super Valu employee on the line denoted “RECEVD BY.” Moreover, we observe that when Super Valu's
warehouse manager was shown this receipt, he acknowledged that “the way this
one is set up it says Super Valu should pay the freight on this.”
Super Valu's rebuttal
consisted of testimony that it had a company policy against accepting collect
freight shipments. Therefore, by ruling
for Super Valu, it seems that the trial court determined that Super Valu's
actions with regard to this shipment were not intentional, and hence, Super
Valu did not knowingly accept this shipment.
Whether Super Valu
accepted this collect shipment is a question of fact to be resolved by the
trial court. See Chrysler Corp.
v. Adamatic, Inc., 59 Wis.2d 219, 233, 208 N.W.2d 97, 103-04 (1973), overruled
on other grounds by Daniel v. Bank of Hayward, 144 Wis.2d
931, 425 N.W.2d 416 (1988). Ordinarily,
we may not set aside such a finding unless it is clearly erroneous. See § 805.17(2), Stats.
Nevertheless, our
examination of the trial court's written decision shows that its factual
finding rests on an improper legal standard.
In matters involving common carriers, the issue of acceptance is not
governed by intent. Rather, a factual
dispute about acceptance is resolved by asking whether the consignee exercised
“dominion and control over the shipment.”
See Chicago & N.W. Transp. Co. v. Krohn Cartage Co.,
79 Wis.2d 39, 44, 255 N.W.2d 310, 312-13 (1977). We thus conclude that the trial court reasoned incorrectly when
it determined that Super Valu's intent was relevant.
Moreover, when we apply
the correct legal standard to the evidence, we do not see any dispute over
whether Super Valu exercised “dominion and control.” At oral argument, Super Valu's counsel explained that this
shipment was mistakenly sent to Super Valu's warehouse. When Super Valu learned it had the wrong
goods, it contacted the manufacturer and asked where the shipment should be
directed. But whatever the intentions
of Super Valu, its actions demonstrate that it took the crucial step of
exercising “dominion and control.”
Super Valu took possession of the shipment, inspected the shipment and
then rerouted it to the proper company; thus, it “accepted” the shipment. See id. And since Super Valu accepted this shipment,
it is liable for the freight charge. See
Werner Transp. Co., 249 Wis. at 89, 23 N.W.2d at 520. In this scenario, Super Valu's recourse for
this apparently “mistaken” freight charge is not with the common carrier
assigned to deliver the shipment.
Instead, Super Valu must pursue a separate claim against the shipper. See Pacific and Atl. Shippers, Inc. v.
American News Co., 201 So.2d 119, 121 (La. Ct. App. 1967).
Accessorial Charges
Con-Way also challenges
the trial court's finding that “it failed to establish its case” with respect
to the accessorial charges. Con-Way
summarizes its appellate argument as follows:
The exhibits identify and include the
tariffs which exist, and the amounts due for the various accessorial
charges. With no evidence of payment
for any of these charges, except $44.10, the trial court erred in not granting
judgment to the plaintiff in the sum of $6,131.14.
We
thus perceive Con-Way's position to be heavily reliant on its exhibits. Con-Way believes that they only support one
conclusion, that it is entitled to judgment.
Super Valu responds,
however, that Con-Way failed to meet its burden of persuasion. It argues that “Con-Way simply submitted a
stack of invoices to the court and argued that since the rates charged for the
various services were filed with the Interstate Commerce Commission, Con-Way
was entitled to payment from Super Valu.”
Although neither party
has specifically discussed the appropriate standard of review, their arguments
suggest that the trial court was making a factual finding when it wrote that
“it appeared that in several areas [Con-Way] either failed to establish its
case or the paperwork that accompanied the various charges belied the argument
[Con-Way] was making.” Neither party
has suggested that the trial court ruled that Con-Way had failed to present a
prima facie case that it was owed these fees, a legal determination. See generally Preloznik v. City
of Madison, 113 Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App.
1983). Rather, it appears that the
trial court determined that Con-Way's proof failed to overcome Super Valu's
rebuttal, a factual finding. See
generally § 805.17, Stats. Consequently, we will turn to the record,
gauge the quality of Con-Way's evidentiary presentation and determine if the
trial court made a clearly erroneous finding when it ruled that Con-Way had
failed to meet its burden of persuasion.
As we alluded to above,
Con-Way's case centered on the records it maintained on these shipments. Con-Way arranged the documents regarding all
forty-nine shipments into ten exhibits.
For each shipment, Con-Way presented a copy of the final invoice it sent
to Super Valu showing the amount owed for the disputed charges and
corresponding late fees. Moreover,
Con-Way submitted the bills of lading that accompanied each shipment. These described things such as the
merchandise being shipped, where the merchandise was being sent and the
applicable charges.[2] Furthermore, Con-Way's service manager
testified and identified these documents and tried to explain to the court what
they meant. For illustrative purposes,
we have reproduced his description of the documents labeled Exhibit 3 at the
margin.[3] This manager also confirmed that Con-Way had
not received payment from Super Valu.
After Con-Way rested its
case, however, Super Valu moved for a directed verdict. Super Valu argued that Con-Way's documentary
proof, standing alone, was insufficient.
Super Valu emphasized the poor quality of Con-Way's evidentiary
presentation, noting, for example, that Con-Way did not prove that it had sent
the notice of past due charges needed to support its claim for late fees. In addition, because these late fees were
not separately identified, Super Valu argued that it was “absolutely
impossible” for the court to wade through Con-Way's documents and calculate the
exact damages.
Con-Way responded that
its regular business practice was to send such notice and that if the late fees
had to be separated from the accessorial charges, it was “an arithmetic
calculation any of us could make.” The trial
court, however, declined to rule on the motion, taking it under advisement.
Super Valu thus
proceeded to rebut Con-Way's documentary proof. Super Valu presented testimony from its management staff, who
explained its warehouse operations.
This testimony revealed that Super Valu generally required the seller or
manufacturer to arrange shipping and did not typically contract with common
carriers (such as Con-Way) to have goods picked up and brought to it. Moreover, a Super Valu witness explained
that the company never requested carriers to perform accessorial services, such
as those that Con-Way claims it performed.
Finally, Super Valu's witness showed the court a flaw in Exhibit 9. While Con-Way's invoice demanded $44.10 for
sorting and segregating, the bill of lading accompanying this shipment
stated: “Shipment tendered to carrier
[i.e., Con-Way] in a sorted and segregated manner. Deliver as Same. No
charges apply.”
After Super Valu
concluded its presentation, each party provided further argument. Here, Con-Way emphasized how there was “no
questioning the numbers included on any of these freight bills.” Moreover, it argued that Super Valu's
evidence that it had a company policy against ordering accessorial services was
not relevant because ICC law demanded that Super Valu comply with Con-Way's
filed rates.
Super Valu, however,
continued to argue that Con-way had failed to prove its claim. It renewed its argument that Con-Way did not
show how it sent notice that these invoices were due, which is required by the
terms of Con-Way's published rates.
Moreover, Super Valu renewed its concern that Con-Way did not present
“any breakdown” between the accessorial charges and the late fees.
The trial court filed
its written findings and judgment two days later. It found for Con-Way on only one of the forty-nine shipments, a
$439.02 freight charge.[4] The court dismissed the remaining
claims.
As noted above, Con-Way
has dropped its claim for the late fees.
In this appeal, Con-Way only challenges the trial court's finding that
it did not meet its burden of persuasion with respect to the “accessorial” charges[5]
and the hauling charge we discussed previously. We join in the trial court's conclusion that Con-Way did not
present a persuasive case with respect to the accessorial charges. We affirm its decision to dismiss this
claim.
Our initial review of
the trial transcript and the exhibits left us uncertain as to the foundations
of Con-Way's claim for these accessorial charges and thus we called for oral
argument. But even after our discussion
with Con-Way's counsel, we still do not understand why Con-Way is entitled to
these charges.
For example, a
significant portion of these accessorial charges were for “notification”
fees. As the parties explained to us at
oral argument, in the trucking industry the recipient sometimes requests the
carrier to notify it in advance exactly when it will be arriving so that
loading space can be set aside. The
carrier charges an extra fee for this service.
Con-Way's appellate
position on these notification charges is that the tariffs it filed with the
ICC and the bills that it sent to Super Valu (all of which are included in its
ten exhibits) plainly explain how these charges are calculated. Thus, Con-Way maintains that it has not only
established a prima facie case, but that its intensive documentary presentation
is so strong that it overcomes any possible rebuttal.
But the documents are
not that clear. Indeed, we questioned
counsel for Con-Way regarding one of its exhibits at oral argument. We directed counsel towards Exhibit 7, which
contained bills for nine different shipments, each with notification charges of
$15.35. The applicable ICC
tariff that Con-Way filed contains the following statement regarding such
notification fees:
[W]hen any ... shipment is subject to a
request that the delivering carrier notify the consignee or any other party
prior to delivery by any means whatsoever, the charge will be $15.35 per
notification.
When prepaid bills of lading indicate
notification of consignee, charges will be collected from the shipper,
otherwise the charges will be collected from the consignee.
We
acknowledge that the shipping documents, just as the tariff contemplates,
describe that Con-Way was to provide Super Valu with notice of delivery. Thus, we agree that Con-Way has solid
grounds for the claim that it is entitled to the $15.35. The question remaining, however, is: who is responsible for paying the $15.35?
The documents state that
the freight charge was prepaid by the shipper. And, as we just pointed out, the documents call for notification
of the consignee by Con-Way. Hence,
pursuant to the second paragraph of the tariff, it seems that “such charges
will be collected from the shipper” because these shipments all originated with
“prepaid bills of lading.”
When we inquired about
our reading of this second paragraph at oral argument, counsel for Con-Way
suggested that we were reading the tariff incorrectly. Counsel argued that the second paragraph
only meant the freight charge, not accessorial charges, would be collected from
the shipper when there was a prepaid bill of lading. Counsel contended that the accessorial charges must therefore be
paid by the consignee. Super Valu's
counsel maintained, however, that the shipper must pay the charges and that
this is the custom of the trade in interpreting the tariff language. Super-Valu's counsel rhetorically surmised
that if we were troubled by Con-Way's argument that the documents
unquestionably proved its case, then certainly we could understand how the
trial court ruled that Con-Way's case was unpersuasive.
We agree with Super
Valu. We will not delve into construing
the above tariff to resolve what we have found to be ambiguous. The point to be made is that Con-Way placed
a stack of documents before the trial court and did not go far enough to
convince the trier of fact about what these documents stood for and how these
documents proved its case. For example,
we have scrutinized the record and can confidently say that the ambiguity we
discussed at oral argument regarding the interpretation of Con-Way's tariff was
never presented to the trial court, either by evidence of what the custom is in
construing the tariff or by any other evidence. This failure is indicative of the remainder of Con-Way's
evidentiary presentation. We noted at
the beginning of this discussion that our appellate inquiry is limited to
whether the trial court made a supportable ruling when it found that Con-Way
failed in its burden of persuasion.
What is important to our analysis is that the trial court found that
Con-Way's case was confusing and unpersuasive.
We cannot say that the record so positively supports Con-Way's position
that this determination is clearly erroneous.
We affirm the trial court's decision to reject the claim for accessorial
charges.
Conclusion and Directions
We reverse the trial
court's finding regarding Con-Way's claim of $430.93 for freight hauling
services on the shipment of plastic film.
We direct the trial court to modify the judgment and to award Con-Way
this sum. However, we affirm the trial
court's conclusion dismissing Con-Way's claim of $6131.14 for accessorial
charges. This portion of the judgment
shall stand.
By the Court.—Judgment
and order affirmed in part, reversed in part and cause remanded with
directions.
Not recommended for
publication in the official reports.
[2] A “bill of lading” is an instrument by which goods are transferred from seller to buyer with the aid of a carrier. It describes the goods shipped, sets forth the identity of the shipper (seller) and buyer, and directs the carrier to deliver the freight to a certain location or person. See Met-Al, Inc. v. Hansen Storage Co., 828 F. Supp. 1369, 1375 (E.D. Wis. 1993).
[3] Q.Now ... look at Exhibit
3. There's one freight transaction
involved there. Can you explain what
that involves?
A.There was a shipment that
Con-Way Central Express delivered to Super Valu, and we were instructed to
notify the consignee, which we did, and charged them such; and upon arrival we
were-- or we were instructed to sort and segregate or to break the shipping
unit down into separate groupings per the consignee's instruction constituting
a sorting and segregating charge.
Q. Is that essentially unloading the
freight?
A.It's
unloading freight and breaking it out of its original shipping
configuration.
....
Q. Are those services part of every delivery of freight?
A. No, they're not. They're an
extra service provided.
Q. Upon the request of the consignee?
A. Yes. Right. Exactly.