Cohn v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 31 March 1910
• Court: Missouri Supreme Court
• Parties: COHN et al. v. ST. LOUIS, I. M. & S. RY. CO.

131 S.W. 881

227 Mo. 369

COHN et al. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri. Division No. 2.

March 31, 1910.^†

COURTS (§ 231)—APPELLATE JURISDICTION— AMOUNT IN CONTROVERSY.

Act June 12, 1909 (Laws 1909, p. 397), gives the various Courts of Appeals jurisdiction of appeals where the amount in dispute, exclusive of costs, does not exceed $7,500. Rev. St. 1899, § 1140 (Ann. St. 1906, p. 978), renders a common carrier violating the act liable to the person injured for three times the damages sustained, together with a reasonable attorney's fee, to be taxed as costs. Plaintiff sued to recover $2,500 as actual damages resulting from a violation of the act, and prayed that such damages be tripled pursuant to statute, and for a reasonable attorney's fee, to be assessed as costs. Held that, since the Legislature could designate the attorney's fee to be recovered as costs, the prayer for an attorney's fee did not enlarge the amount in dispute, which was only $7,500, exclusive of costs, so that the Court of Appeals had jurisdiction of the appeal.

Appeal from Circuit Court. Butler County.

Action by Peter Cohn and another against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Case transferred to the Springfield Court of Appeals.

See, also, 181 Mo. 30, 79 S.W. 961.

E. R. Lentz, for appellants. R.T. Railey and Jas. F. Green, for respondent.

GANTT, J.

This action was brought by the plaintiffs to recover damages for the violation by the defendant of sections 1133, 1134, Rev. St. 1899 (Ann. St. 1906, pp. 974, 975), and for the triple damages alleged by section 1140 of the same statute (Ann. St. 1906, p. 978).

The petition alleges that during all the time from March 20, 1896, to March 20, 1899, the plaintiffs were partners doing a general merchandise business at Poplar Bluff, Mo., under the firm name and style of Cohn & Pelz; that defendant was during the same time the owner of, and controlling and operating, a line of railroad from the city of St. Louis, in the state of Missouri, to Bird's Point, Mo.; that Poplar Bluff is a station on defendant's said line of railroad, and is located 166 miles south from the said city of St. Louis; that Dexter, Essex, Gray's Ridge, Morehouse, Sikeston, and Charleston are all stations on defendant's said line of railroad, all in the state of Missouri, all located at a greater distance from the said city of St. Louis than is Poplar Bluff; that during all of the said time the defendant held itself out as a common carrier of freight and passengers for hire; that during all the time from March 20, 1896, to March 20, 1899, the rates of freight as published and proclaimed by its schedule or tariff of rates, from St. Louis to Poplar Bluff, and which these plaintiffs were compelled to and did pay on all shipments of freight from St. Louis to Poplar Bluff, on the four classes of freight, was as follows, to wit: On first class 75 cents, second class 58 cents, third class 50 cents, and fourth class 40 cents per 100 pounds. During the same time plaintiffs received, and paid freight on at Poplar Bluff tariff rates, of the various classes of freight, as follows, to wit: Of first class 183.042 pounds, of second class 38,146 pounds, of third class 173,615 pounds, and of fourth class 183,231 pounds. During the same time the defendant made and promulgated its freight tariff rates to Dexter, Essex, Gray's Ridge, Morehouse, Sikeston, and Charleston, and persons doing business at the last above named places were actually charged on shipments from St. Louis to the last above named places, at the rate of 50 cents for first class, 35 cents for second class, 30 cents for third class and 25 cents for fourth class per 100 pounds, thus discriminating against these plaintiffs as individuals and against Poplar Bluff as a location by compelling payment of 25 cents on first class, 23 cents on second class, 20 cents on third class, and 15 cents on fourth class per 100 pounds in excess of the rates at the same time charged and demanded of and from persons doing business at the last above mentioned points, notwithstanding all of the said last-named places are located on defendant's said line of railroad, all in the same general direction from and located at a greater distance from St. Louis than is Poplar Bluff. Petition charges an unlawful discrimination against these plaintiffs as individuals and against Poplar Bluff as a locality, as the same is prohibited in section 1133, Rev. St. 1899.

The second count of petition charges the unlawful violation of section 1134, Rev. St. 1899, by charging a greater compensation in the aggregate for the transportation of plaintiffs' goods the shorter distance from St. Louis to Poplar Bluff than it at the same time charged for the longer distance from St. Louis to other places named for the transportation of the same classes of goods. In both counts it is alleged that all goods of the classes named, shipped from St. Louis to Dexter and the other places named, were shipped through Poplar Bluff. Both counts allege that, as a further discrimination against these plaintiffs as individuals and against Poplar Bluff as a locality during all the time aforesaid, the defendants did allow and pay to its patrons doing business at the last above named places a...