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

Citation181 Mo. 30,79 S.W. 961
CourtMissouri Supreme Court
Decision Date23 March 1904
PartiesCOHN et al. v. ST. LOUIS, I. M. & S. RY. CO.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by Peter Cohn and another against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

E. R. Lentz, for appellants. L. F. Dinning, for respondent.

BURGESS, J.

This is an action for damages alleged to have been sustained by plaintiffs by reason of the violation by defendant of sections 2636, 2637, Rev. St. 1889, and sections 1133, 1134, Rev. St. 1899, and the penalty imposed therefor by section 2643 of the same act. The petition is in two counts, and, as amended, is as follows:

"Plaintiffs state that the above-named Peter Cohn and Sallie Pelz are, and for more than three years past have been, partners engaged in the general merchandise business in the city of Poplar Bluff, Butler county, Missouri, under the firm name and style of Cohn & Pelz, and that the defendant, the St. Louis, Iron Mountain & Southern Railway Company, is a railroad corporation organized under the laws of the state of Missouri, and operating a railroad from the city of St. Louis to the city of Poplar Bluff, in the state of Missouri, and also from the city of Poplar Bluff, in the state of Missouri, to the city of Cairo, in the state of Illinois, which said lastnamed railroad runs through the towns of Dexter, Essex, Morehouse, Sikeston, and Charleston, in said state of Missouri; that during all of the time herein mentioned the defendant held itself out and advertised itself a common carrier of freight and passengers between the points herein named. Plaintiffs state that during all of the time since the 20th day of March, A. D. 1896, the plaintiffs have been engaged in a general merchandise business in the city of Poplar Bluff, Butler county, Missouri; that the said city of Poplar Bluff is a station on the line of defendant's railroad, located one hundred and sixty-six miles south from the city of St. Louis, in the said state of Missouri, which said city of St. Louis is the northern terminus of the defendant's said railroad. Plaintiffs also say that Charleston, Sikeston, Morehouse, Gray's Ridge, Essex, and Dexter are all stations on the defendant's said railroad, and each of said stations named are located at the following distances from the city of St. Louis, to wit: Charleston, 178 miles; Sikeston, 211 miles; Morehouse, 205 miles; Gray's Ridge, 199 miles; Essex, 195 miles; and Dexter, 190 miles; that all of the said last-named places are stations on the same railroad on which Poplar Bluff is located, and are all in the same direction from the city of St. Louis, and located at a greater distance from the city of St. Louis than is Poplar Bluff.

"Plaintiffs say that by section 1133 of the Revised Statutes of Missouri of 1899 it is made unlawful for any common carrier to make or to give any undue or unreasonable preference or advantage to any particular person, company, or firm, corporation or locality, in the transportation of goods, wares, and merchandise of any character, or to subject any particular person, firm, corporation, or locality or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage with respect to such transportation. Plaintiffs say that notwithstanding the defendant was prohibited by the said statute from discriminating against these plaintiffs as individuals or as a firm, and from undue or unreasonable discrimination against the said city of Poplar Bluff as a locality, in favor of other localities, in the way of rates charged for the transportation of all kinds of merchandise, yet the defendant, by its freight tariff No. 1,666, which was in effect during all the time herein mentioned, published and promulgated the following as the tariff of rates to be charged for transportation of the various classes of freight therein mentioned from the said city of St. Louis to the said city of Poplar Bluff, to wit: `First class, 75 cents per 100 pounds; second class, 58 cents per 100 pounds; third class, 50 cents per 100 pounds; fourth class, 40 cents per 100 pounds; fifth class, 30 cents per 100 pounds; and all other classes and descriptions of freight at the rates herein mentioned and specified.' Plaintiffs say that, in the course of their said business so conducted at Poplar Bluff as aforesaid, it became and was necessary for them to purchase in St. Louis and other cities large quantities of merchandise, and to ship the same to their said store in Poplar Bluff, Missouri, and that at various times between the 20th day of March, 1896, and the 20th day of March, 1899, there was shipped from the said city of St. Louis to these plaintiffs, at Poplar Bluff, Missouri, over defendant's said railway, in the aggregate, of the various classes of freight, as follows, to wit: Of first class, 183,042 pounds; of second class, 38,140 pounds; of third class, 173,615 pounds; of fourth class, 183,231 pounds; and of fifth class, 174,958 pounds— and large amounts of other classes of freight in said freight tariff No. 1,666 mentioned and specified, to wit, 208,325 pounds of meats and lard, and that these plaintiffs have been compelled to pay, and did pay, to the defendant, as compensation for the transportation of said merchandise from the city of St. Louis to the city of Poplar Bluff, the full tariff rates as published and promulgated by the said freight tariff No. 1,666, all of which will fully and at large appear by tabulated statement attached to the original petition herein, and marked `Exhibit A.' Plaintiffs further say that, during all the time covered by the said shipments as aforesaid, the defendant, by its freight tariff No. 2,166a, which became effective March 1, 1895, published and promulgated to the world that it would transport merchandise and other commodities from the city of St. Louis to Charleston, Sikeston, Morehouse, Gray's Ridge, Essex, and Dexter, in the state of Missouri, and all situated a greater distance from the city of St. Louis than is Poplar Bluff, at rates very much lower than those charged to these plaintiffs for shipments to Poplar Bluff; that the rates as published and promulgated by said freight tariff No. 2,166a to all of said above-named points were as follows: First class, 50 cents per 100 pounds; second class, 35 cents per 100 pounds; third class, 30 cents per 100 pounds; fourth class, 25 cents per 100 pounds; fifth class, 23 cents per 100 pounds—and other classes of freight at the rates mentioned in the said freight tariff No. 2,166a, and that the defendant did transport large amounts of merchandise and other commodities from the city of St. Louis to persons residing and doing business at the said points last above named at the rates published and promulgated in said freight tariff No. 2,166a, and that said freight so shipped to merchants and others at the last above named places was shipped through Poplar Bluff to said points, all of which was to the great damage and injury to these plaintiffs. Plaintiffs say that, as a further discrimination against these plaintiffs, and against the city of Poplar Bluff as a locality, the defendant during the time herein mentioned did allow and pay to persons doing business in said last above named places further reduction by way of rebate in the rates of freight charged on commodities shipped from St. Louis to the said above-named points, amounting to from six to ten cents on each one hundred pounds of freight received by them, and on all classes of...

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13 cases
  • McGrew v. Missouri Pac. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 28 Junio 1910
    ...v. Railroad, 212 Mo., loc. cit. 17, 18, 110 S. W. 711; Winsor Coal Co. v. C. & A. Ry. Co. (C. C.) 52 Fed. 716; Cohn v. St. Louis & Iron Mountain Ry. Co., 181 Mo. 30, 79 S. W. 961. Now, if our interpretation of the act of 1872 is sound, and if viewed in the light of said constitutional provi......
  • McGrew v. Missouri Pacific Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 12 Noviembre 1910
    ......          Alexander. Graves for respondent. . .          (1) (a). McGrew v. Railroad, 177 Mo. 533 (approved in. Cohn v. Railroad, 181 Mo.), correctly held that. section 1126 and section 1134 should stand together and that. the latter did not repeal the former by ...R. v. Wellman, 143 U.S. 339, 36. L.Ed. 176, 12 S.Ct. 400; Reagan v. Trust Co., 154. U.S. 362, 38 L.Ed. 1014, 14 S.Ct. 1047; St. Louis, etc.,. R. R. v. Gill, 156 U.S. 649, 39 L.Ed. 567, 15 S.Ct. 484;. Covington Turnpike Co. v. Sandford, 164 U.S. 578, 41. L.Ed. 560, 17 S.Ct. ......
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    • United States
    • United States State Supreme Court of Missouri
    • 18 Noviembre 1930
    ...B. & Q. Railroad v. Illinois, 200 U.S. 561, 50 L.Ed. 596. Even municipal corporations are not liable because of defective plans. Ely v. St. Louis, 181 Mo. 30; Ruppenthal v. St. Louis, 190 Mo. 224; Berry Sedalia, 212 S.W. 36. (3) Damages, if any, occasioned by the acts complained of in plain......
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    • United States State Supreme Court of Missouri
    • 18 Noviembre 1930
    ...& Q. Railroad v. Illinois, 200 U.S. 561, 50 L. Ed. 596. Even municipal corporations are not liable because of defective plans. Ely v. St. Louis, 181 Mo. 30; Ruppenthal v. St. Louis, 190 Mo. 224; Berry v. Sedalia, 212 S.W. 36. (3) Damages, if any, occasioned by the acts complained of in plai......
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