McGrew v. Missouri Pac. Ry. Co.

• Decision Date: 14 February 1893
• Citation: 114 Mo. 210,21 S.W. 463
• Parties: McGREW v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 463

114 Mo. 210

McGREW v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

February 14, 1893.

CARRIERS — OVERCHARGES FOR FREIGHT — RECOVERY OF PENALTIES.

Rev. St. 1889, § 2639, provides that railroad corporations shall print schedules showing the rates of freight established by them, not to exceed the maximum rates established by law; that copies shall be posted in every depot, and filed with the railroad commissioners; and that from the date of such filing the rates scheduled shall not be in excess of statutory maximum rates thereafter in force, and shall be deemed the established rates until changed as provided by this act. Section 2631 provides that all railroads of the state shall be common carriers, and prohibits unreasonable charges. Section 2643 provides that on violation of these sections the person injured may recover three times the amount of damages sustained. Held, in an action to recover penalties for charging plaintiff unreasonable rates on coal shipped by him over defendant railroad company's line, that a petition which failed to allege that the rates charged were in excess of the rates fixed by defendant and filed with the railroad commissioners and posted in defendant's depots, and which also failed to state that the charges were in excess of the maximum rates fixed by the railroad commissioners or by the statute, stated no cause of action.

Appeal from circuit court, Johnson county; Charles W. Sloan, Judge.

Action by James C. McGrew against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

H. S. Priest, for appellant. Graves & Aull, for respondent.

BURGESS, J.

This is a suit to recover penalties for charging plaintiff unreasonable rates upon coal shipped by him over defendant's road from Myrick to divers other points on its road, to wit, Kansas City, Levasy, Adams, Lexington, and Independence, Mo., during the years 1887, 1888, and 1889. The petition contains 256 counts for as many different causes of action, claiming in the aggregate as overcharges and unreasonable the sum of $2,198, and prays that these amounts be tripled, and, in addition thereto, a reasonable attorney's fee. The action is based upon sections 1 and 10 of an act of the legislature passed in 1887, entitled "An act to regulate railroad corporations," (sections 2631, 2643, Rev. St. 1889.) The first count is a sample of all of the other counts of the petition, the only difference being in the date of shipment, the points from which the shipment was made, together with the variations in charge in the different shipments. It is as follows: "Plaintiff states that heretofore, to wit, on the 5th day of October, A. D. 1887, said defendant was and has ever since been, and is now, a railroad corporation and common carrier duly organized and doing business under and by virtue of the laws of the state of Missouri, and as such operating a line of railroad in said state known as `Missouri Pacific Railway,' with its branches, and operating in connection therewith a railroad extending from the city of Sedalia, in Pettis county, Missouri, to Kansas City, in the state of Missouri, upon which Myrick, Levasy, Adams, Lexington, and Independence are railroad stations. That the distance from said station of Myrick to Kansas City, Missouri, is 40 miles; from Myrick to Independence, Missouri, is 30 miles; from Myrick to Adams Station, 25 miles; from Myrick to Levasy, 13 miles; and from Myrick to Lexington, 3 miles. For cause of action plaintiff further states that heretofore, to wit, on the 5th day of October, 1887, the plaintiff delivered to the defendant, in the cars of defendant, at said station of Myrick, two car loads of coal in car-load lots, weighing in the aggregate 73,500 pounds, to be transported upon defendant's railroad from said station of Myrick to Kansas City, Missouri, which said coal was then and there duly received by the defendant for transportation as aforesaid, and was consigned to ____, at Kansas City, Mo. That on the day and year last aforesaid 45 cents per ton was a just and reasonable rate and charge for the transportation of coal upon said railroad from said station of Myrick to Kansas City, Mo., when transportated in car-load lots. That the defendant demanded and required plaintiff to pay, and the plaintiff was compelled to pay and did pay, to the defendant, the sum of $23.88, which was at the rate of 65 cents per ton for the transportation of said car loads of coal, aforesaid, from said station of Myrick to Kansas City, Mo., contrary to the form of the statute in such cases made and provided. That said rate demanded of the plaintiff and received by the defendant, and which was paid by the plaintiff upon said freight, was unreasonable, unjust, and extortionate, and by reason thereof the plaintiff has suffered and sustained damage in the sum of $7.35, which he asks to be tripled by the court, and for three...