Opinion
June 5, 1962 —
June 29, 1962.
APPEALS from two orders of the circuit court for Douglas county: CARL H. DALEY, Circuit Judge. Affirmed.
For the plaintiff there was a brief by Johnson, Fritschler, Barstow Witkin of Superior, attorneys, and Earl F. Requa and H. B. Krengel, both of St. Paul, Minnesota, of counsel, and oral argument by Barney B. Barstow.
For the defendant there were briefs by Immell, Herro, Buehner DeWitt of Madison, and oral argument by Norman C. Herro and Jack R. DeWitt.
Two separate actions commenced by the plaintiff, Northern Pacific Railway Company, against the defendant, Knauf Tesch Company. The complaints alleged that plaintiff shipped millet seed for the defendant and the defendant now refuses to pay the published tariff and transportation rates for such shipments, but it has paid a sum less than that required.
Northern Pacific Railway Company seeks to recover a balance in one action in the amount of $10,158.05 and in the other action the amount of $3,921.49. The complaint in which the plaintiff seeks to recover the amount of $10,158.05 alleges that between November 1, 1956, and January 9, 1958, the plaintiff as initial carrier, together with other railroads, carried and delivered at the request of the defendant 60 carload shipments of a commodity known as millet from Lisbon, North Dakota, to New York and Brooklyn, New York.
In the other case between the same parties the complaint alleges that between October 30, 1956, and January 6, 1958, there was delivered by the common carrier 26 carloads of a commodity known as millet seed from Oakes, North Dakota, to New York, New York, and from Wyndmere, North Dakota, to New York and Brooklyn, New York, and that the balance on tariff rates that is due and owing to the plaintiff is $3,921.49.
The answers in both cases allege that Knauf Tesch, defendant, has paid in full the published tariff and transportation rates for a commodity which they deny was millet seed.
On February 11, 1960, motion was made by Northern Pacific Railway Company for a stay of proceedings pending the conclusion of a proceeding before the interstate commerce commission on these same actions, which proceeding Northern Pacific Railway would promptly institute.
The plaintiff and defendant in both actions moved for summary judgment.
Attached to Northern Pacific Railway's motions for summary judgment in each action were supporting affidavits which stated that the commodity which is the subject of this dispute was identical to that which was the subject of an interstate commerce commission decision of December 5, 1960. In that action before the interstate commerce commission it was determined that millet seed which had undergone no further processing than cleaning was to be classified under the higher tariff applicable to millet seed. Attached to these affidavits in each separate action were exhibits setting forth a detailed statement of the shipments in the instant action, the decision and order of the interstate commerce commission, and a denial by the interstate commerce commission for a petition for rehearing or modification of the order.
Three affidavits were submitted in each action by Knauf Tesch in support of their motion for summary judgment. these affidavits Knauf Tesch asserted that the entire use of the millet was for bird food and could not be sold for millet seed as it did not meet the requirements of the Federal Seed Act. One of the affidavits by Knauf Tesch was made in opposition to that filed by Northern Pacific Railway. In this affidavit Knauf Tesch stated that the Northern Pacific Railway did not set forth evidentiary facts to show that the millet in the present action was identical to the millet which was the subject of the interstate commerce commission decision.
Attached to these affidavits was a decision of the Wisconsin circuit court for Calumet county involving similar issues between Knauf Tesch and the Minneapolis, St. Paul Sault Ste. Marie Railway Company. In that decision the circuit court for Calumet county held for the shipper in circumstances similar to those presented here.
All motions for summary judgment were denied as the court determined there was an issue of fact to be resolved, to wit, Was the seed involved in this dispute identical to that which was the subject of the recent interstate commerce commission decision relied upon by Northern Pacific Railway? The controversy was referred to the interstate commerce commission by the trial court and further proceedings in the instant actions were stayed.
Plaintiff and defendant each appeal from the two orders of the trial court denying their respective motions for summary judgment.
The record in both actions is identical except with regard to the amounts of millet shipped and the value of the shipping charges for such transportation, hence this decision shall apply to both actions.
In a summary-judgment case the sole issue is whether there is a substantial issue of fact to be tried. Krause v. Hartwig (1961), 14 Wis.2d 281, 111 N.W.2d 138.
Northern Pacific Railway's affidavit stated that the commodity shipped by it for Knauf Tesch was identical to the commodity which the interstate commerce commission determined to be subject to the higher tariff rate in its decision of December 5, 1960. In that case the interstate commerce commission found that the shipments consisted of millet seed as distinguished from bird food or birdseed. The counter-affidavit by Knauf Tesch states that the affidavit by Northern Pacific Railway did not state evidentiary facts to support its conclusion that the millet shipped by Knauf Tesch was identical to that which was the subject of the interstate commerce commission determination.
The affidavits fail to establish that the commodity in the interstate commerce commission action and this one was the same, therefore, the interstate commerce commission decision is not controlling, and we are not concerned with the merits or factual situation in that action. Since the interstate commerce commission decision is not determinative of the facts in this action we are left with the original question, to wit, whether the commodity shipped was millet seed or bird food. Thus an issue of fact remains to be determined. This was the decision of the trial court and we agree.
The ultimate use of the millet shipped by Knauf Tesch was material in determining whether it was millet seed or bird food. By affidavit Knauf Tesch stated that the entire sale and use of the millet was for bird food or birdseed. That the shipments were in their entirety purchased, sold, billed, shipped, and used as bird food, that over 90 percent of all millet raised in the United States is intended for and used for bird food, and that less than 10 percent is raised for seed millet, that is for reproduction.
The conclusions set forth in the defendant's affidavits do not meet the statutory requirements. The statute provides that summary judgment may be entered in favor of either party on motion upon the affidavit of any person who has knowledge thereof setting forth such evidentiary facts, including documents or copies thereof. Thus, the affidavit cannot be accepted as a verity in support of the defendant's motion for summary judgment.
Sec. 270.635(2). "The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, . . ."
An affidavit on summary judgment must state evidentiary facts, not statements expressing the conclusions of the affiant from his knowledge of the evidence. Krause v. Western Casualty Surety Co. (1958), 3 Wis.2d 61, 87 N.W.2d 875; Zastrow v. Brown Deer (1960), 9 Wis.2d 100, 100 N.W.2d 359; and Kubiak v. General Accident, Fire Life Assur. Corp. (1962), 15 Wis.2d 344, 113 N.W.2d 46.
The notice of Northern Pacific for a stay of proceedings pending a determination by the interstate commerce commission of the same issues included an affidavit stating that numerous lawsuits involving the same issue as the instant actions have been commenced by various railroads against various defendants in state, federal, and municipal courts in several states, that in three actions pending in the federal district court for North Dakota orders had been entered in each action staying proceedings pending the conclusion of proceedings before the interstate commerce commission.
When the facts are in dispute or the words of the tariff rate are used in a special sense as in the instant action, primary jurisdiction rests with the interstate commerce commission. Chicago, M., St. P. P. R. Co. v. Ricketson Mineral Color Works (1935), 218 Wis. 37, 39, 259 N.W. 722, and United States v. Western Pacific R. Co. (1956), 352 U.S. 59, 77 Sup. Ct. 161, 1 L.Ed.2d 126.
In the interest of a uniform and expert administration of the regulations laid down by the Interstate Commerce Commission Act, we determine that the issue presented in the instant actions requires administrative proceedings before the interstate commerce commission and that such proceedings be commenced by the plaintiff without delay so that a determination of the applicable tariff rate as to the commodity involved can be had at the earliest possible date.
It therefore necessarily follows that the stay of proceedings issued by the trial court continue until the administrative proceedings before the interstate commerce commission are concluded.
By the Court. — Orders denying summary judgment in both actions are affirmed. Orders granting stay of proceedings in both actions are affirmed.
FAIRCHILD, J., took no part.