Bryan v. Louisville & N. R. Co.

• Decision Date: 19 December 1921
• Docket Number: No. 22359.,22359.
• Court: Missouri Supreme Court
• Parties: BRYAN v. LOUISVILLE & N. R. CO.

238 S.W. 484

292 Mo. 535

BRYAN v. LOUISVILLE & N. R. CO.

No. 22359.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing Denied March 14, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Edward J. Bryan against the Louisville & Nashville Railroad Company. Judgment for defendant, after demurrer to the third amended petition was sustained, and plaintiff appeals. Affirmed.

S. Mayner Wallace and Shepard Barclay, both of St. Louis, for appellant.

H. H. Small, of St. Louis, for respondent.

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.

I. 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 questions presented being as to whether or not plaintiff's third amended petition states a cause of action, we reproduce the said petition in full. It is as follows:

"Edward J. Bryan, the plaintiff, by his attorneys, says that Louisville & 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 thereof 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 2,600 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 16 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 known 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, arid 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 relocated said line of railroad, theretofore so serving said orchards, 5 miles over mountains away therefrom and for a distance of 22 miles along the original location of said line of railroad, and discontintinued 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 planting of said orchards, and continuously at all said times thereafter, until the acts above complained of, defendant deceived and defrauded plaintiff in this that defendant's said president, vice president and chief engineer, during all of that period of time, well knew and intended and had determined that said line of railroad was to be and would be relocated to a place other than its then location and to plaintiff's damage, and the operation thereof abandoned, by defendant, but that defendant at no time advised or warned plaintiff who, at all times, was ignorant thereof, of such fact, and, during all of said period of time, said defendant allowed, permitted and thereby caused plaintiff to rely upon the continuation of said railroad service and to make and to develop his said investment upon the faith of and in the belief in a continuance of such necessary railroad service and facilities by concealing said fact from plaintiff and by failing to advise or warn plaintiff of defendant's said intent, and determination or of the probability of said defendant's abandoning said line of railroad, and defendant thereby caused plaintiff to continue the making of his said investment to the amount of $155,000 in money and in 11 years of time and labor and to furnish tonnage to and from said orchards, for defendant's pecuniary benefit, that is, for freight and other charges collected from plaintiff by defendant, because of which deceit and fraudulent conduct plaintiff has sustained and suffered the injury and damage herein complained of. And plaintiff pleads the terms and provisions of certain laws of the state of Alabama, which laws, being at all said times in force and effect, are sections 2468 of article 5 and 4299 of article 90 of the (1907) Civil Code of said state, and provide, respectively, that: `Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action;' and that: `Suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case.'

"Plaintiff further states that because of defendant's said deceit and fraud and tortious conduct he has been misled and damaged in the sum of three hundred fifty thousand ($350,000) dollars for that his said business and occupation have now been destroyed by the removal of said line of railroad and the cessation of said railroad service thereon to and from said...