Alexander v. Chicago, M. & St. P. Ry. Co.

Decision Date01 April 1920
Docket NumberNo. 18541.,18541.
Citation282 Mo. 236,221 S.W. 712
PartiesALEXANDER v. CHICAGO, M. & St. P. RY. CC.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by Clarence W. Alexander, doing business under the name of the Consolidated Coal Company, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence W. Alexander, doing business under the name of Consolidated Coal Company, brought this suit against the Chicago, Milwaukee & St. Paul Railway Company, under the provisions of sections 3184 and 3191 of the Revised Statutes of Missouri of 1909, to recover damages arising from an alleged violation of said section 3184 on the part of the defendant, and for treble damages and attorney's fees as provided by section 3191.

The petition, in substance, after formal allegations, states that the defendant, a common carrier, without just cause or legal excuse, refused to deliver shipments of coal consigned to plaintiff, and that, under the provisions of section 3184 of the Revised Statutes of Missouri of 1909, it is unlawful for a common carrier to subject any one shipper or consignee to any undue or unreasonable prejudice or disadvantage, but that it is the duty of such carriers to afford all equal facilities for traffic; that defendant's conduct was in violation of this statute, in that it refused to accept cars of coal consigned to plaintiff, and turned back and refused to deliver coal shipped to him; and that, by reason of these alleged unlawful acts of the defendant, plaintiff had sustained damages in the sum of $1,000. The answer was a general denial. Upon a trial by jury, a verdict was rendered in favor of the plaintiff in the sum of $200. Under the authority of section 3191, supra, this sum was by the court trebled, and judgment rendered in the amount of $600, and the court also allowed to plaintiff the sum of $75, as attorney's fees. It was agreed that the evidence would show that amount to be a reasonable allowance for the services of plaintiff's attorney. Motions for a new trial and in arrest of judgment were filed and overruled, and by appropriate steps the case has been brought to this court. Jurisdiction is vested in this court because the constitutionality of the sections of the statute above mentioned is involved.

The essential facts out of which this controversy arose are, as shown by the record, as follows: The plaintiff was engaged in the business of selling coal at retail in Kansas City, Mo., where he maintained a coalyard. The yard was about 50 feet in width at the rear end, where it abutted upon an alley in which a railroad switch was operated by defendant. From this switch plaintiff's coalyard was served. At the rear end of plaintiff's lot there was a board fence about 6 feet high, extending entirely across the lot. This fence stood about 18 Inches west of the cast line of the lot. Outside of the fence and between it and the railroad track above mentioned, there were two or three telephone or electric light poles, which appear to have been about 15 to 18 inches in diameter near the base. The fence was old and had gradually become inclined outward and toward the railroad track. Some time in the early part of 1913, an association of railroad employés known in this record as the "Safety First Committee" complained to Mr. W. L. Richards, the superintendent of defendant railway company, that the condition of this fence made it dangerous to set cars on the switch in the rear of plaintiff's lot. Thereupon, about May 21, 1913, Richards informed plaintiff of that fact by letter, claiming in the letter that the fence leaned to such an extent as that it was out over the track, and that a box car in passing barely cleared the fence, and requested plaintiff to correct this dangerous condition without delay. Several similar letters followed from defendant to plaintiff, including threats on the part of defendant to decline to render switch service to plaintiff unless the fence were repaired, and a number of petty bills claimed by defendant to be due it from plaintiff were promptly paid. These bills amounted to less than $20, and plaintiff disputed some of them. The parties agreed, however, upon an adjustment of these charges, and the balance found to be due to defendant was paid. Plaintiff made some repairs upon the fence in the early part of September, 1913, and about September 18, 1913, requested defendant to deliver a car of coal upon the switch above mentioned to be unloaded into plaintiff's `coalyard. Defendant had received from the Burlington Railroad Company a car of coal shipped to plaintiff, but, after an examination of the fence as repaired, notified plaintiff that the repairs were not sufficient, and refused to place the car of coal upon the switch. Plaintiff declined to make further repairs, and defendant, after holding the car of coal for three days, returned it to the Burlington Railroad Company. Plaintiff had closed down his coal yard during the summer, but in September tried to reopen it for business, with the results above stated. After the car of coal above mentioned had been delivered to defendant in Kansas City, Mo., for plaintiff, defendant notified plaintiff that it would lift the embargo which it had placed upon his shipping facilities, provided he would put the fence in satisfactory condition and agree to pay "all just car service bills when found to be correct by the bureau," and further agree to pay all damages which might accrue to defendant's ears and equipment by reason of plaintiff's employés handling such cars and equipment. The "bureau" mentioned seems to have been an organization maintained by defendant alone, or by it and other railroad companies. Thereupon plaintiff brought this suit.

There is a sharp conflict in the evidence as to the extent to which the fence in question leaned toward the railroad track. The evidence in behalf of plaintiff tended to show that the fence was about 6 feet high; that it set hack about 18 inches west of the property line; that the telephone poles in question stood adjoining the fence and between it and the switch track at intervals along in the rear of plaintiff's lot; that the fence never at any time inclined to a point beyond the east line of these poles; and that the poles mentioned were set west of the switch track far enough to permit the safe operation of cars on that track. The evidence in behalf of the defendant tended to show that the fence inclined so far into the alley as to make the handling of cars upon the switch dangerous, that in places the cars had a clearance of only 2 to 4 inches, and that in at least one instance a car was scraped by the fence while being set upon this track. No personal hostility was shown to exist between Richards or any other employé of the defendant company and the plaintiff. There was evidence tending to support plaintiff's claim for damages hi the amount of the verdict found in his behalf by the jury. The evidence tended to show that plaintiff was rarely at the yard during the summer season, and for that reason he did not receive the letters above mentioned, which were written prior to August 1st, until some time in August, and that he moved the coal which was piled against the fence and repaired the fence some time from the first to the middle of September, and that defendant at various times during the summer season did in fact set cars upon this track for the use of other consignees.

Defendant objected to the allowance of an attorney's fee, on the ground that the court had no jurisdiction to allow it, and that its action deprived defendant of its right to a trial by jury, as provided in section 28 of article 2 of the Constitution of the state of Missouri, and for the further reason that the provisions of the statutes in question, permitting the assessment of an attorney's fee, were unconstitutional and void, and in conflict with section 1 of article 14 of the amendments to the Constitution of the United States, and in violation of section 30 of article 2 of the Constitution of Missouri; and defendant also objected to the trebling of the damages for the same reasons. The objection as to the alleged deprivation of a right to a trial by a jury upon the amount of the attorney's fee allowed by the court is not urged here, and is for that reason treated as waived.

We think that the foregoing, in addition to such other matters of fact as may be noted in the opinion, is a sufficiently full statement of the facts.

Fred S. Hudson, of Kansas City, for appellant.

Albert S. Marley and Strother & Campbell, all of Kansas City, for respondent.

WILLIAMSON, (after stating the facts as above).

I. Appellant claims that the petition in this cause does not state a cause of action, the gist of the complaint being that it does not charge that the car of coal in question was an intrastate shipment. There is no such allegation in the petition, it is true, but appellant made no attack upon the petition either by demurrer or by motion to make more definite and certain, nor did appellant even question the sufficiency of the petition by an objection to the introduction of evidence. But this objection cannot avail appellant, in any event, for the reason that such an allegation was not necessary. Section 3184, R. S. 1909, under which this suit was brought, contains no provision limiting its application to intrastate shipments. This limitation arises by virtue of a federal statute, covering the field of interstate commerce, and if this shipment was, in fact, an interstate shipment, and for that reason was not within the scope and purview of the Missouri statute, that fact was a matter of defense which should have been set up by respondent in its answer.

"So, in an action upon a penal statute, if the proviso be in a separate section or a substantive clause, it is matter of...

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