Hendrix v. Wabash R. Co.

• Decision Date: 26 April 1904
• Citation: 80 S.W. 970,107 Mo.App. 127
• Parties: HENDRIX, Respondent, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

80 S.W. 970

107 Mo.App. 127

HENDRIX, Respondent, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 26, 1904

Appeal from Audrain Circuit Court.--Hon. H. W. Johnson, Judge.

Judgment affirmed.

Geo. S Grover and Geo. Robertson for appellant.

(1) The burden is upon the plaintiff in this case to establish negligence of the defendant from which any injury follows. Cash v. Railroad, 81 Mo.App. 109; Plefka v Knapp, 145 Mo. 316; 2 Joyce on Damages, sec. 1282; Witting v. Railroad, 101 Mo. 641. (2) The court erred in refusing to give defendant's instruction No. 3 because that instruction submitted the true rule of damages as provided for in the contract of shipment. McFadden v. Railroad, 92 Mo. 343; Kellerman v. Railroad, 136 Mo. 177; Wyrick v. Railroad, 74 Mo.App. 406; Hart v. Railroad, 112 U.S. 331; Hutchinson on Carriers (2 Ed.), sec. 249; Sedgwick on Damages (8 Ed.), sec. 416; Graham v. Bickam, 1 Am. Dec. 328; Harmony v. Bingham, 12 N.Y. 99; Vaughn v. Railroad, 78 Mo.App. 639; Live Stock Com. Co. v. Railroad, 87 Mo.App. 330; Bowring v. Railroad, 90 Mo.App. 324.

P. H. Cullen for respondent.

(1) By section 6 of the Interstate Commerce Act it is made unlawful for a common carrier, after it has established and published its schedule of freight rates as prescribed by the act, to charge a greater or less compensation than is specified in such public schedule, and to do so is a misdemeanor, punishable by fine or imprisonment. Wight v. U.S. 167 U.S. 512; Gerber v., Railroad, 63 Mo.App. 145; Railroad v. Harrison, 119 Ala. 539, 43 L. R. A. 385; Railroad v. Hefly & Lewis, 158 U.S. 98; Missouri R. Co. v. Trinity L. Co., 1 T. C. A. 553; Dillingham v. Fischl, 1 Tex. Civ. App. 546; In re Passenger Tariffs, etc., Wars, 2 Int. C. R. 340; 2 Int. C. C. Rep. 513; Matter of Grand Trunk Co., 2 Int. Co. Rep. 496; 3 Int. Com. C. Rep. 89; U. S. v. Railroad, 43 F. 26; U. S. v. Mellen, 53 F. 229; Railroad v. Railroad, 2 Int. Com. Rep. 729, 3 Int. Com. C. Rep. 465; U. S. v. Howell, 56 F. 21.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J.

At the June term, 1903, of the Audrain circuit court, the plaintiff recovered a verdict and judgment against the defendant. Timely motions for new trial and in arrest of judgment were filed and were continued over to August, 1903, to which month the June term was adjourned. Prior to August, 1903, Hon. E. M. Hughes, judge of the Audrain circuit court, died and Hon. R. D. Rodgers was appointed his successor. Judge Rodgers duly qualified and held the August term pursuant to the June adjournment. Judge Rodgers having been of counsel in this and a number of other cases pending in the Audrain circuit court, and thereby being disqualified to hear and pass upon the motions in this case for new trial and in arrest of judgment, by agreement of parties, an order was duly made requesting "Hon. J. A. Hockaday, judge of the Ninth judicial circuit to sit as judge therein and otherwise act as judge in each of said causes, and by agreement of the parties in each of said causes the Hon. J. A. Hockaday, judge of the Ninth judicial circuit of Missouri, is selected to hear and pass upon the motions now pending in each of said causes and otherwise act as judge in each of said causes, and do any and every act in each of said causes that is lawful and proper to be done by a circuit judge." Judge Hockaday, in pursuance of such request, appeared at the August adjourned term of said court when the following proceedings were had before him in the case of Hendrix v. Railroad:

"Now on this day, August 3, 1903, the Hon. R. D. Rodgers, regular judge of this court, having been of counsel of plaintiff in this cause and by reason thereof disqualified from sitting as a judge therein, requests Hon. John A. Hockaday, judge of the Ninth judicial circuit, to sit as judge herein and otherwise act as judge in this cause, the Hon. E. M. Hughes, judge, who heard this cause, being dead, and by agreement of the parties hereto the Hon. John A. Hockaday, judge aforesaid, is selected to hear and pass upon the motions for a new trial and in arrest of judgment in this cause, and otherwise act as judge in this cause. And now the parties hereto by their attorneys appearing, the motions for a new trial and in arrest of judgment are submitted to the court and the same are continued under advisement until the September term of this court, 1903."

Thereupon the said John A. Hockaday took said motion for new trial under advisement and announced that he would pass upon the same at the approaching September term, 1903, of said Audrain circuit court. But before the September term, 1903, of said court, the said R. D. Rodgers resigned his office as circuit judge of said court, and the Governor of Missouri appointed Houston W. Johnson, as his successor, and the said Houston W. Johnson duly qualified as such judge and opened and held the September term of said court; and thereupon the said John A. Hockaday refused further to sit in said cause and to pass upon said motion. Thereupon the plaintiff filed a motion to vacate all the orders in said cause, transferring the same to the said John A. Hockaday, and this motion the said Houston W. Johnson, as judge of said court sustained. Said motion to vacate is as follows:

"Now comes the plaintiff and moves the court to set aside and vacate the order heretofore made submitting this cause to Judge John A. Hockaday and for cause says that said cause was submitted to Judge Hockaday because Hon. R. D. Rodgers, who is of counsel, in said cause was appointed judge of this court and as such judge was disqualified to hear said cause and since said matter was submitted to Judge Hockaday, and before the said Judge Hockaday had considered said cause, Judge Rodgers resigned the office of circuit judge, and the Hon. H. W. Johnson was appointed and is now judge of said court and he, the said Johnson, being not disqualified to sit and hear said cause, the Hon. John A. Hockaday declines to entertain jurisdiction of said cause and the plaintiff, therefore, moves the said order be set aside and that the present judge of this court assume jurisdiction and hear and determine said cause."

The order sustaining said motion is as follows:

"Now on this day, November 3, 1903, comes plaintiff, by attorney, and files motion to set aside and vacate the entry heretofore made in this cause, submitting this case to Hon. John A. Hockaday, and now said motion coming on for hearing the parties appearing by counsel and the court having seen and heard said motion and being fully advised, doth sustain said motion and doth order and adjudge that the record entry heretofore made in this cause on the third day of August, 1903, and entered of record in circuit court record Z, at page 156, also page 159, submitting this cause to Hon. John A. Hockaday, judge, be and the same hereby are set aside, vacated and for naught held."

To which action of the court in sustaining said motion the defendant excepted and saved its exceptions.

Thereupon the said Houston W. Johnson sitting as judge in said cause took jurisdiction of the motion for new trial in said cause and overruled the same; to which action of the court in overruling said motion the defendant excepted and saved its exceptions. The defendant objected to all the actions of said Houston W. Johnson, as judge of said court, in taking jurisdiction of said cause and excepted and saved its exceptions to every one and all of his actions therein, and the defendant was granted an appeal to the St. Louis Court of Appeals, and now prays this court to allow, sign and seal its bill of exceptions, which is accordingly done this twenty-first day of December, 1903.

The defendant appealed and contends that Hon. H. W. Johnson was without jurisdiction to pass upon its motions for new trial and in arrest of judgment and that both motions are yet pending somewhere. It will be observed that the orders made in the Audrain circuit court did not change the venue of this cause from that county to any other county in the Ninth judicial circuit, over which Judge Hockaday presided, but that Judge Hockaday was agreed upon by the parties and requested by Judge Rodgers to hear and pass upon the motions pending in the Audrain circuit court. That there was no intention that the venue of the cause should be removed from Audrain county is not only shown by the orders of the court but is also shown by the fact that the parties did not understand that the case was to be taken from Audrain county, but that Judge Hockaday should appear at the Audrain circuit court and then and there, as special judge, pass upon the motions. After the submission of the motions, and on the coming in of the regular judge, who was not disqualified to hear and pass upon the motions, Judge Hockaday refused to take any further action in the matter, and the question is, did Judge Johnson thereby become possessed of jurisdiction to set aside the order referring the motions to Judge Hockaday and take jurisdiction over them himself? The request made upon Judge Hockaday was in accordance with section 1678, Revised Statutes 1899, which reads as follows:

"Whenever the judge of any circuit shall be sick, absent, or from any cause unable to hold any term or part of term of court in any county in his circuit, such term or part of term of such court may, by request of the judge, be held by the judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, who shall, during the period he shall so act, possess the same powers and be liable to the same responsibilities as the judge of said circuit."

Judge Rodgers, by reason...