Alexander v. Chicago, Milwaukee & St. Paul Railway Company
| Citation | 221 S.W. 712,282 Mo. 236 |
| Parties | CLARENCE W. ALEXANDER, Doing Business as CONSOLIDATED COAL COMPANY, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant |
| Decision Date | 30 April 1920 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Affirmed.
Fred S Hudson for appellant.
(1) The verdict is not supported by the evidence; therefore cannot be upheld by this court. McFarland v. Accident Assn., 124 Mo. 204; Cole v. Armour, 154 Mo. 332; Hewitt v. Steel, 136 Mo. 237; Peffer v. Railway, 98 Mo.App. 291; Peck v. Railway, 31 Mo.App. 128; (2) Plaintiff is suing for penalties; therefore his case must be strictly construed, nothing taken by intendment, and he must bring himself within all the provisions of the statute. Rixke v. Tel. Co., 96 Mo.App. 406; Eddington v Tel Co., 115 Mo.App. 98; Cornell v. Tel. Co., 108 Mo. 459. (3) Before plaintiff can recover, he must plead and prove that the shipment complained of was intrastate. Steel v. Railway, 165 Mo.App. 314. (4) The court had no right to assess an attorney fee as costs in this case. Paddock v. Railway, 155 Mo. 524; G. C. & S. E Ry. v. Ellis, 165 U.S. 150. (5) Before plaintiff can recover, he must show that defendant showed undue and unreasonable preference or advantage to another shipper and that ill will, coercion or disfavor was shown the plaintiff. Cohn v. Ry. Co., 151 Mo.App. 688; Wynn v. Railway, 111 Mo.App. 648. (6) Sections 3184 and 3191, on which this suit is brought, are in violation of the Constitution of the State of Missouri and of the United States as they discriminate against one class of litigants and in favor of another and the penalty is unreasonable, unjust and excessive. Polt v. Ry. Co., 232 U.S. 165; Y. & M. V. Railroad Co. v. Vinegar Co., 226 U.S. 117.
Strother & Campbell for respondent.
(1) If there is any substantial evidence, the verdict will not be disturbed on appeal. (2) The wrongs complained of (refusal to switch cars to plaintiff, thereby working undue and unreasonable disadvantage) comes clearly within the provisions and manifest spirit and intent of the statute. Cohn v. Railway, 181 Mo. 45. Both the petition and the evidence show the switch track in question and terminals and yards of defendant to be located in Kansas City, Missouri, and that the shipment came from the mines at Macon, Missouri, everything about the car being intrastate. Although we do not see what difference it would make if the car had come from Kansas, Iowa, Kentucky, or any of the other states of the Union, as the wrong was a refusal to receive and switch cars to plaintiff at his place of business in Kansas City, Missouri, after they had been delivered to defendant in its terminal yards in Kansas City, Missouri. (4) The Ellis case has been distinguished in Railroad v. Matthews, 174 U.S. 96, and M. K. & T. Ry. Co. v. Cabe, 233 U.S. 648. Section 3191 is leveled at common carriers, and there is a great distinction between the statutes brought in question in the Ellis and Paddock cases and in Section 3191. Cohn v. Railway, 180 Mo. 30; K. C. S. Ry. Co. v. Anderson, 233 U.S. 325. (5) Sec. 7068, R. S. 1909, providing for reasonable attorney fees where insurance companies vexatiously refusing to pay a loss has been upheld both by the State appellate courts and the Supreme Court of the United States. Rogers v. Ins. Co., 186 Mo. 248. Martin v. Ins. Co., 190 Mo.App. 703; Williamson v. Ins. Co., 72 C. C. A. 542; Farmers Co. v. Dobney, 189 U.S. 301. We can see no difference in a statute which places the same burden on all common carriers and a statute which places the same burden on all persons engaged in insurance business. (6) What has been said above concerning attorney fees, may be included on the question of constitutionality of Sections 3184 and 3191. Railroad v. Vinegar Co., 226 U.S. 217. The opinion in this case upholds this kind of statute, when we keep in mind that this statute is leveled against common carriers as a whole and not merely against railroad companies. Seaboard Air Line v. Seeger, 207 U.S. 73; Yazoo & M. V. R. Co., v. Jackson Vinegar Co., 226 U.S. 217; Kansas City South. Railroad Co. v. Anderson, 233 U.S. 325; M. K. & T. Ry. Co. v. Cade, 233 U.S. 651. (7) The theory upon which a statute of this kind is held constitutional is not to enforce the collection of debts, but to compel the performance of duties which the carrier assumes when it enters upon the discharge of its public functions. The Statute is not leveled at corporations alone, but at all carriers. The classification is based solely upon the nature of the business, the nature of this business being that of a public carrier.
OPINION
In Banc
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, Revised Statutes 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, Revised Statutes 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 carrier 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 one thousand dollars. The answer was a general denial. Upon a trial by jury, a verdict was rendered in favor of the plaintiff in the sum of two hundred dollars. Under the authority of Section 3191, supra, this sum was by the court trebled, and judgment rendered in the amount of six hundred dollars, and the court also allowed to plaintiff the sum of seventy-five dollars, 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 Missouri, where he maintained a coal yard. The yard was about fifty 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 coal yard was served. At the rear end of plaintiff's lot there was a board fence about six feet high, extending entirely across the lot. This fence stood about eighteen inches west of the east 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 fifteen to eighteen 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 employees 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 that it was out over the track, and that a boxcar 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 twenty dollars, 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 coal yard. 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, Missouri, for plaintiff, defendant notified plaintiff that it would lift the embargo which it had placed upon his shipping facilities, provided he would put...
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