Canary Taxicab Co. v. Terminal Ry. Ass'n

• Decision Date: 15 February 1927
• Docket Number: No. 27022.,27022.
• Citation: Canary Taxicab Co. v. Terminal Ry. Ass'n, 294 S.W. 88, 316 Mo. 709 (Mo. 1927)
• Parties: CANARY TAXICAB CO. v. TERMINAL RY. ASS'N OF ST. LOUIS.
• Court: Missouri Supreme Court

294 S.W. 88

CANARY TAXICAB CO. v.TERMINAL RY. ASS'N OF ST. LOUIS.

No. 27022.

Supreme Court of Missouri, in Bane.

February 15, 1927.

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

Suit for injunction and damages by the Canary Taxicab Company against the Terminal Railway Association of St. Louis.From a judgment for plaintiff, defendant appeals.Reversed.

T. M. Pierce and Samuel H. Liberman, both of St. Louis (J. L. Howell and R. E. Blodgett, both of St. Louis, of counsel), for appellant.

Thomas L, Anderson, of St. Louis, for respondent.

ATWOOD, J.

This is a proceeding for injunctive relief and damages, commenced in the circuit court of the city of St Louis, where plaintiff received judgment.The petition alleged that plaintiff was a corporation engaged in the taxicab business in the city of St. Louis and a common carrier of passengers and baggage; that defendant was a railroad corporation, owning and operating a union station in the city of St. Louis, located between Eighteenth and Twentieth streets, fronting on Market street; that Nineteenth street was an open public street crossing Market street and entering Union Station at a place in the station known as the Concourse ; that defendant was a common carrier, and, in violation of section 23, art. 12, of the Constitution of the state of Missouri, defendant closed the Concourse to all taxicab companies except the Brown Cab Company, a competitor of plaintiff, and entered into a contract with the Brown Cab Company, whereby, for a consideration of $300 a month, the latter was given the exclusive use of the Concourse; that defendant thereby discriminated in its facilities for transportation in favor of the Brown Cab Company and against plaintiff, and thus created a monopoly, in violation of the statutes of the state of Missouri and of the Constitution of the state, particularly sections 9975and9985,Revised Statutes of Missouri 1919.In addition to damages, plaintiff sought relief by injunctive orders, restraining defendant from interfering with plaintiff in the use of the Concourse in receiving and delivering passengers and baggage, and a mandatory injunction compelling defendant to open the Concourse to the free and unrestrained enjoyment thereof by plaintiff in the transaction of its taxicab business.

Defendant's return consists of a general denial and averments that the Concourse was part of the Union Station, wholly upon property owned and in the possession of defendant, and that since the erection of the station in 1894defendant has owned, maintained, operated, and controlled the Concourse as its own private property; that no part of the Concourse was on or in or upon any open public street, or any part of any public street; that Nineteenth street does not extend to, in, upon, or on any portion of the Concourse; that the Concourse has never been open to the public; that in the ordinary conduct of its business defendant is required to designate and select a single responsible agency through which passengers coming into the Concourse might receive attention and accommodation; that if competitive solicitation by plaintiff and other cabmen were permitted on the Concourse, the traveling public would be subjected to annoyance and inconvenience as a result of the confusion and riot resulting from such unrestrained competitive solicitation, and that the selection of a responsible agency was necessary in order to prevent a nuisance upon defendant's property; that defendant's contract with the Brown Cab Company does not violate any of the statutory or constitutional provisions of the state of Missouri; and that if section 23, art. 12 of the Constitution, andsections 9975 and 9985 of the Revised Statutes of Missouri 1919, were so construed as to prevent defendant from leasing the Concourse to one responsible agency, the said constitutional provision and statutory provisions, and any order, decree, or judgment of the court so construing them, would deprive the defendant of its property without due process of law, deny to the defendant the equal protection of the laws, and impair the obligation of defendant's contract with the Brown Cab Company, in violation of the stateConstitution forbidding the taking of private property for a public use.

Plaintiff's reply consisted of a general denial of the averments contained in defendant's answer and return.On behalf of plaintiff there was testimony that immediately prior to October 1, 1925, the Concourse was closed, and it was the custom of taxicab companies to pull up to the outside of the Union Station, the cabs taking their turns, first come first served; that the Union Station extends from Eighteenth to Twentieth streets on the south "Side of Market street, and the Concourse is directly even with Nineteenth street, which stops right at the Concourse; that about 18 cabs could get into the Concourse; that at no time prior to October 1, 1925. had the Concourse ever been used by plaintiff or by any other cab company except the Columbia Taxicab Company and Marshall Bros., licensees of the defendant; and that since the making of the present contract no cab company other than the Brown Cab Company was permitted to get into the Concourse.Plaintiff introduced in evidence the contract entered into between defendant and Brown Cab Company on October 1, 1925.By its terms defendant granted to the Brown Cab Company the right to use its Concourse in the Union Station, at a rental of $300 a month, and the Brown Cab Company in return agreed to hold the defendant free and harmless from any claims or liability arising out of its use of the Concourse, and further agreed that it would furnish adequate facilities for serving the public with taxicabs and to subject itself to the rules and regulations of defendant.

Plaintiff and defendant stipulated and agreed that the case be submitted on the pleadings; it being admitted that evidence had been submitted to sustain the allegations in the petition and the answer.It is further stipulated and agreed that defendant offers three witnesses who if present would testify that "if the competitive solicitation by the plaintiff and all other cabmen and hackmen were permitted upon and within said Concourse located on its private premises, the traveling public would be subjected to annoyance, confusion would arise, riot would be engendered, and general conditions would become intolerable"; and that in rebuttal plaintiff offers three witnesses who if present would testify that "if the Concourse was thrown open to the taxicab companies, that no confusion, disorder, or riot would occur; that on the other hand, they would say that the traveling public would be fully protected in a careful and in an orderly manner, and that there would be no confusion or disturbance of any kind, and that they would subject themselves to any regulations furnished by the traffic council of the city of St. Louis, or the Terminal Railroad Association, the defendant herein, and that the traveling public would receive better terms, better service, and be better pleased by conditions that would arise under the circumstances set out heretofore."

On January 18.1926, the trial judge filed a written memorandum in the case reciting, among other things, that "in granting a permanent injunction in this case, the court does so relying entirely upon the case of K. C. Terminal Ry. Co. v. James et al., 298 Mo. 497, 251 S. W. 53, together with cases therein cited to support the court's contention."On January 21, 1926, a judgment and decree was entered wherein the court, after making certain findings of fact, ordered, adjudged, and decreed that:

"Defendant be perpetually restrained from granting any rights, privileges, or uses of that part of its property in the Union Station known as the `Concourse' to any other common carrier for hire that it does not now grant to the Canary Taxi Company, plaintiff herein, and that said defendant shall grant to the plaintiff, the Canary Taxi Company, on and after ten days from date, to wit, the 1st day of February, 1926, the right to receive and deliver passengers and baggage for hire in the Concourse of the Union Station upon similar conditions and terms that it grants that right to the Brown Cab Company, or any other common carrier for hire; that the defendant herein and its officers, agents, servants, and any other person, company, or coil oration having contractual relations with the defendant be perpetually enjoined and restrained from, either directly or indirectly, interfering with the Canary Taxi Company, plaintiff herein, in the use and occupation of the `Concourse' in the Union Station, in delivering and receiving passengers and baggage, provided that said defendant is permitted the use of said `Concourse' to any other common carrier for the purpose of receiving or delivering passengers and baggage."

It was further ordered, adjudged, and decreed that the plaintiff have and recover of the defendant the damages aforesaid as assessed, to wit, the sum of $3,390, together with the cost of this proceeding.

From the above judgment defendant has appealed.

The law is well settled that hackmen and taxicab drivers may be prohibited from soliciting patronage on railroad station grounds, but there is some conflict of opinion upon the question of the right of a railroad company to grant such a right to a favored person to the exclusion of all others of like vocation.However, the decided weight of authority particularly reflected in the more recent and seemingly better reasoned decisions, including those of the Supreme Court of the United States, is to the c fleet that a railroad company, as long as it thereby affords reasonable accommodation to the public and violates no constitutional or statutory provision, may grant such exclusive privilege to one company or person.Donovan v. Pennsylvania Co. (1905) 199 U S. 279, 26 S. Ct. 91, 50 L. Ed. 192;Express Cases(1885)117...