Emerson v. St. Louis & H. Ry. Co.

• Citation: 111 Mo. 161,19 S.W. 1113
• Court: United States State Supreme Court of Missouri
• Decision Date: 01 July 1892
• Parties: EMERSON v. ST. LOUIS & H. RY. Co.

19 S.W. 1113

111 Mo. 161

EMERSON v. ST. LOUIS & H. RY. Co.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

CARRIERS OF FREIGHT — SHEEP CARS — CONSTITUTIONAL LAW.

1. Rev. St. 1889, §§ 2598-2600, which require railroad companies to furnish double-decked cars for carrying sheep when requested, and provide a penalty for refusal to do so, are constitutional, being a proper regulation of common carriers.

2. In an action to recover such penalty, a petition which states facts showing a violation of said statute, and refers to the statute by its subtitle, is sufficient though it does not allege that the defendant's act was done contrary to the provision of any statute.

3. Such petition need not state that the point to which plaintiff's sheep were to be shipped was a station on the defendant's road where it alleges that "the defendant was conducting a general passenger and freight business over the line of its railroad" between the point of shipment and the point of destination.

Appeal from circuit court, Pike county; E. M. HUGHES, Judge.

Action by Luke M. Emerson against the St. Louis & Hannibal Railway Company for refusing to furnish double-decked cars for the transportation of plaintiff's sheep. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Theodore G. Chase and Jas. H. Orr, for appellant. Robinson & Farrell, for respondent.

GANTT, P. J.

This cause is certified to this court by the St. Louis court of appeals because the defendant challenges the constitutionality of sections 2598-2600, Rev. St. 1889, Laws 1881, p. 83, and Laws 1885, p. 91. The action was commenced in the circuit court of Pike county at the March term, 1888. There were six counts in the petition, but as the finding was for plaintiff only on the fifth count it is unnecessary to incumber this record with the others. The petition is as follows: "Plaintiff states that defendant is a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and that said corporation owns and controls a railroad running from the city of Hannibal, in the county of Marion, through the city of Bowling Green, in the county of Pike, to the town of Gilmore, in the county of St. Charles, all of said places being in the state of Missouri, and that said corporation conducts a general passenger and freight business over the line of its said railroad from the said city of Bowling Green and other stations along the line of said railroad to the city of St. Louis, in the state of Missouri." "Plaintiff, for cause of action, states that on the 23d day of August, 1887, he desired to ship a lot of sheep over defendant's railroad from the said city of Bowling Green to the said city of St. Louis, and requested defendant to furnish him with a double-decked car for the transportation of said sheep, but that defendant furnished two cars instead, and he (the plaintiff) loaded his sheep on said cars so furnished, and that defendant refused to transport said two cars of sheep unless plaintiff would pay the full legal rate of freight allowed for the shipment of stock on each of said two cars, and demanded and charged the full legal rate of freight; and on plaintiff's refusal to pay the full legal rate on each car defendant forced plaintiff to unload his sheep, and refused to transport them, in violation of the statutes relating to double-decked cars, whereby defendant became indebted to plaintiff in the sum of two hundred dollars, for which amount he asks judgment." The answer was a general denial. The cause was tried at the September term, 1889, and resulted in a verdict for plaintiff for $50. The errors assigned will be considered in the order of the appellant's brief.

1. It is first contended that the fifth count in the petition as hereinbefore set forth does not state a cause of action, because it is not alleged that the act done was contrary to the provision of any statute. The defendant relies upon section 2078, Rev. St. 1889, for this position. That...