Bryan v. Louisville & Nashville Railroad Co.

• Citation: 238 S.W. 484,292 Mo. 535
• Parties: EDWARD J. BRYAN, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY
• Decision Date: 14 March 1922
• Court: United States State Supreme Court of Missouri

238 S.W. 484

292 Mo. 535

EDWARD J. BRYAN, Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

Supreme Court of Missouri, First Division

March 14, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

S Mayner Wallace and Shepard Barclay for appellant.

(1) The italicized allegation, contained in the fourth paragraph of the amended petition, to the effect that the defendant "in the late summer of the year 1918, took up and removed the tracks of said railroad south from said orchards," should not have been ordered struck out. (2) The amended petition states facts sufficient to constitute a cause of action for fraud, or deceit. The stated facts show that defendant assumed or incurred the obligation of a legal duty toward plaintiff not to entrap or mislead him, as charged, to his pecuniary damage. Suppression of a fact, or silence, when there is a legal duty to disclose, constitutes fraud or deceit. McAdams v. Cates, 24 Mo. 223; Barnard v. Duncan, 38 Mo. 186; Bank v. Crandall, 87 Mo. 211; Morley v. Harrah, 167 Mo. 80; Bradbury v. Smith, 181 S.W. 424; Manter v. Truesdale, 57 Mo.App. 443; 1 Bigelow on Fraud, 467. (3) The pleaded statutory law of Alabama, where the cause of action arose, serves to make clearer the proper conception of the general law that should be applied.

H. R. Small for respondent.

(1) The first assignment that the court erred in sustaining defendant's motion to strike out part of plaintiff's petition was, if error, waived by plaintiff thereafter joining issue on three demurrers to subsequently amended petitions. Sauter v. Leveridge, 103 Mo. 615; Pattison Code Pl. (2 Ed.) secs. 891, 912, 968. (2) The court below did not err in sustaining the demurrer. The petition did not state facts sufficient to constitute a cause of action. Detroit v. Ry. Co., 156 Mich. 121; L. & N. R. Co. v. Mottley, 219 U.S. 467; Kirby v. Railroad, 225 U.S. 155; Foster Lumber Co. v. Railroad, 270 Mo. 629. (3) Bryan v. L. & N. R. Co., 244 F. 650, the first suit of this plaintiff against this defendant covering this same situation, and for damages from the same relocation as a suit on the theory that, under all the facts, there was a duty on defendant to pay plaintiff, who relied on a continuance, damages from the relocation, settles the question made by plaintiff in this his second suit, that there is a duty to pay damages. The rule of the first Bryan Case is the rule in Missouri and other states. The duty of location is to the state. Kinnealy v. Ry. Co., 69 Mo. 658; Dewey v. Ry., 142 N.C. 302; Jones v. Newport News, 65 F. 736; Edwards v. Lesueur, 132 Mo. 410, 440. (4) The court did not err in rendering judgment on April 30, 1920, after three demurrers had been sustained. R. S. 1919, sec. 1252.

OPINION

ELDER, J.

This is an appeal from a judgment rendered by the Circuit Court of the City of St. Louis dismissing plaintiff's suit against defendant after the third demurrer filed in the cause had been sustained upon the ground that a third amended petition failed to state facts sufficient to constitute a cause of action. The demurrers to the first and second amended petitions had been upheld upon the same ground with respect to which the third demurrer was sustained. Prior to sustaining the first demurrer filed, the court had ordered a portion of the first amended petition stricken out. The errors of the trial court urged here are (1) The striking out of part of the first amended petition; (2) The sustaining of the demurrer to the third amended petition; and, (3) The rendering of judgment for defendant on the pleadings. These alleged errors we shall discuss seriatim.

The action brought was for $ 350,000 damages alleged to have been sustained by plaintiff as a result of the relocation of a part of defendant's railroad in the State of Alabama. In the brief for plaintiff it is referred to as an action "in tort for deceit." As far as our investigation reveals, a similar case has never been before any of the appellate courts of this State. The principal question presented being as to whether or not plaintiff's third amended petition states a cause of action, we produce the said petition in full. It is as follows:

"Edward J. Bryan, the plaintiff, by his attorneys, says that Louisville and Nashville Railroad Company, the defendant, is and at all times mentioned herein was a railroad corporation originally incorporated (in 1850) under the laws of Kentucky and thereafter (in 1851) also incorporated under the laws of Tennessee, and that, as such corporation, jointly incorporated under the laws of said two states, it owns and at all said times owned lines of railroad in Kentucky, Tennessee, Alabama and other states, which said lines, including the part there of below specified, at all said times except as herein otherwise alleged, prior to the date (December 26, 1917) when the operation thereof was assumed by the Government of the United States, it operated as a common carrier for hire of freight, express and passengers.

"Plaintiff states that at all times herein referred to he owned and was in possession of a tract of two thousand six hundred acres of land in the County of Blount, State of Alabama, on which lands, beginning in the year 1903, at great expense of labor, time and money, he grew a large commercial orchard, known as the 'Mont Eyrie Orchards,' of many thousands of trees of the different kinds and varieties of fruits and that until the times herein below stated, a line of defendant's said railroad was located and operated through the same and furnished the only railroad freight, express or passenger service to be had therefor, and upon which service, so supplied by that line of defendant, the successful business operation of said orchards depended entirely.

"Plaintiff states that he began to purchase the various parcels of land (which together comprised said tract) and the planting of said orchards and the making of his investment therein sixteen years ago, and that he at all said times since then continued the development of said orchards and the business operation thereof, including the shipping and selling of fruit on and over said line of railroad, until the time of the defendant's acts herein complained of, all of which was well know to defendant's officers and agents (including its president, Milton H. Smith; its vice-president, W. L. Mapother; its general manager, B. M. Starks; its superintendent, T. E. Brooks; its traffic agent for Alabama, Virgil C. Griffin; its general freight agent, D. M. Goodwyn, and his assistant, C. R. Brent; its land agent, John P. Willoughby; its horticultural agent, T. E. McIlroy; its chief engineer, W. H. Courtenay; its refrigerator car service agent, one Weatherly; and G. A. Park, head of its Immigration and Industrial Department, and L. H. and John Lister, also its agents in said department) who, during all of said while, actively encouraged and assisted plaintiff in making and continuing to make his said investment of time, labor and money in said orchards by causing defendant to convey to plaintiff, on May 26, 1905, in consideration of plaintiff's agreement at the time so to develop the same and thereby produce railroad tonnage for defendant, large parcels of said tract of land which were then owned by defendant, for the purpose of having plaintiff develop the same as stated and, in 1907, by granting to plaintiff in writing an option to purchase another large parcel of defendant's land for the same purpose and, in 1912, by assisting plaintiff to construct a railroad switch and tramway over which to move the traffic of said orchards between said orchards and defendant's said line of railroad and by building a railroad station at and for said orchards, and stopping all of defendant's trains thereat, and by sending, from time to time, defendant's horticultural and other agents to advise with and instruct plaintiff concerning the best ways and methods of producing and handling fruits and, from season to season, by sending men to aid and assist plaintiff in harvesting and shipping fruits and at all times by giving to plaintiff's orchards prompt and solicitous consideration in the matter of furnishing, from year to year, properly iced cars, quickly placed at and hauled away from said orchards to market and, from year to year, in thus inducing plaintiff to believe in the future of the business of said orchards and in the large reward of financial returns to be expected by plaintiff from his said business; and plaintiff also states that, during all of said time since 1903, defendant collected from plaintiff large sums of money, in freights and other railroad charges, from the operation of said orchards, for the railroad service rendered by defendant in railroad carriage to and from said orchards.

"Plaintiff further states that, beginning in November, 1914, and continuing through the following year, defendant re-located said line of railroad, theretofore so serving said orchards five miles over mountains away therefrom and for a distance of twenty-two miles along the original location of said line of railroad, and discontinued operating the said line of railroad through plaintiff's said property, and took up and removed the tracks of said railroad north from said orchards and, in the late summer of the year 1918, took up and removed the tracks of said railroad south from said orchards, and thereby denied and withdrew all freight, express and passenger railroad service to and from plaintiff's said business to plaintiff's great damage as herein alleged; that, at the time (1903) plaintiff began the making of his said investment and the plaintiff of said orchards, and continuously at all said times thereafter, until the acts above complained of, def...