Cohn v. St. Louis, Iron Mountain & Southern Railroad Company

• Decision Date: 05 December 1910
• Citation: 133 S.W. 59,151 Mo.App. 661
• Parties: PETER COHN et al., Appellants, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY, Respondent
• Court: Missouri Court of Appeals

133 S.W. 59

151 Mo.App. 661

PETER COHN et al., Appellants, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, Springfield

December 5, 1910

Rehearing Denied 151 Mo.App. 661 at 684.

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

AFFIRMED.

Judgment affirmed.

E. R Lentz for appellant.

(1) If these plaintiffs were compelled to pay a higher rate of compensation for the transportation of their goods from St Louis, Missouri, to Poplar Bluff, than the defendant at the same time charged for the same service to the more distant points of Dexter and the other points named, they were damaged to the exact extent of such discrimination. They were entitled to at least as good rates as those accorded to the more distant points. R. S. 1899, secs. 1133, 1134; Cohn & Pelz v. Railroad, 181 Mo. 30; Seawell v. Railroad, 119 Mo. 224; Railroad v. Goodrich, 149 U.S. 680. (2) Unjust and unreasonable discrimination is actionable at common law, independently of any statute, as well as by most of the regulatory statutes. 1 Woods on Railways, 641; Railroad v. Closser (Ind.), 9 L.R.A. 754; Cook v. Railroad (Iowa), 9 L.R.A. 964; Fitzgerald v. Railroad (Vt.), 13 L.R.A. 70; Vincent v. Railroad, 49 Ill. 33; Rothchild v. Railroad, 15 Mo.App. 245. (3) It has been decided by a long line of cases, that, the discriminations or preferences between shippers is a lawful one, only, where it is such as the carrier may give because of the difference in costs, expense or the exceptional character of the service. Railroad v. Commonwealth, 43 L.R.A. 541; United States v. Railroad, 40 F. Rep. 101; Interstate Com. Com. v. Railroad, 52 F. Rep. 189; Railroad v. Fuel, 31 F. Rep. 562; Hay v. Railroad, 12 F. Rep. 309; Schofield v. Railroad, 43 Ohio St. 571; Sanford v. Railroad, 24 Pa. 378; McDuffie v. Railroad, 52 N.H. 430; Railroad v. People, 12 N.E. 670; Railroad v. People, 67 Ill. 2; Messenger v. Railroad, 36 N.J. L. 407; United States v. Wright, 167 U.S. 512; Nickolson v. Railroad, 5 C. B. (N. S.) 366; Harris v. Railroad, 30 C. B. (N. S.) 693; Evershed v. Railroad, 2 Q. B. Div. 254; 1 Wood on Railways, 643, sec. 198; Interstate Com. Com. v. Railroad, 168 U.S. 166, 42 Law Ed. 423; State v. Railroad, 41 L.R.A. 246. (4) It is the duty of the courts to interpret the laws as they find them, to accord to the words their ordinary meaning and significance and not to search for occult or strained constructions. R. S. 1899, sec. 4160; State ex rel. v. Johnson, 132 Mo. 105; State ex rel. v. County Court, 128 Mo. 427; Warren v. Pav. Co., 115 Mo. 572; State v. Jones, 102 Mo. 305. (5) The United States Supreme Court says, "We hold that competition between carriers subject to the provisions of said act (i. e., the Interstate Com. Act), does not produce such dissimilarity of circumstances and conditions under which the transportation is performed, as will justify the carriers in charging more for the shorter than for the longer haul. Railroad v. Behler, 175 U.S. 660; Railroad v. Commonwealth, 43 L.R.A. 541.

Martin L. Clardy and James F. Green for respondent.

(1) The findings of fact of the referee, based on substantial evidence, and approved by the trial court, are conclusive on appeal. Young v. Powell, 87 Mo. 128; Vogt v. Butler, 105 Mo. 479; Howard Co. v. Baker, 119 Mo. 397; Bissell v. Ward, 129 Mo. 439; Bader v. Lumber Co., 134 Mo.App. 135. (2) Competition as well as other conditions and circumstances, is properly considered in determining the question whether there is or is not discrimination in rates of shipment. Railroad v. Interstate Com. Com., 168 U.S. 164; Railroad v. Commission, 162 U.S. 197; Railroad v. Behlmer, 175 U.S. 648; Railroad v. Commission, 181 U.S. 1; Railroad v. Eubank, 184 U.S. 27; Interstate Com. Com. v. Railroad, 50 F. Rep. 295; Railroad v. Commission, 206 U.S. 457.

OPINION

GRAY, J.

Appellants instituted this action in the circuit court of Butler county, on the 20th day of March, 1899, to recover the penalties provided by sections 1133 and 1134, Revised Statutes of 1899. A demurrer was filed to the petition, and the same was sustained and the plaintiffs appealed to the Supreme Court and the judgment was reversed and the cause remanded. The opinion on the former appeal will be found in 181 Mo. 30, 79 S.W. 961. A copy of the petition will be found in the opinion of the Supreme Court, and reference is made thereto for its allegations.

When the cause was remanded, an answer was filed, containing first a general denial, and then a special defense, admitting the rates as alleged in plaintiffs' petition were the rates charged, but denying that the circumstances and conditions under which shipments were made to Poplar Bluff were similar to those made to Charleston, Sikeston and the other points named in the plaintiff's petition; that the other towns were located near the Mississippi river, and that defendant, in order to get any business at said points, was compelled to make the rates charged, in order to meet Mississippi river competition and the competition of the St. Louis & Southwestern Railroad Company.

The parties failed to agree upon a referee, and the court appointed Hon. L. R. Thomason to hear and determine all the issues. On the 10th day of February, 1906, the referee filed his report finding the facts as follows:

"That for more than three years prior to March the 20, 1899, Peter Cohn and Sallie Pelz were copartners 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 Bertha Cohn is the duly appointed executrix of the estate of Peter Cohn, deceased formerly a member of the said firm of Cohn & Pelz.

"That the defendant, the St. Louis, Iron Mountain & Southern Railway Company, is a corporation, organized under the laws of the State of Missouri, owning and operating a line of railroad from the city of St. Louis, Missouri, to the city of Poplar Bluff, Missouri, and from the city of Poplar Bluff, Missouri to the city of Cairo, in the State of Illinois. That said railroad, running from the city of Poplar Bluff to the city of Cairo, runs or passes through the cities or towns of Dexter, Essex, Grays Ridge, Morehouse, Sikeston and Charleston, Missouri, and that each of said cities or towns are stations on defendant's said line of railroad.

"That for more than three years prior to said 20th day of March, 1899, the defendant held itself out as such, and was in fact, a common carrier for the general public of freight and passengers for hire between said points and stations along the line of its said railroad.

"That St. Louis, Missouri, is the northern terminus of the defendant's said line of railroad; that the distance from St. Louis, Missouri, to Poplar Bluff, Missouri, is 166 miles; that the distance from St. Louis, Missouri, to Dexter, Missouri, is 190 miles; that the distance from St. Louis, Missouri, to Essex, Missouri, is 195 miles; that the distance from St. Louis, Missouri, to Grays Ridge, Missouri, is 199 miles; that the distance from St. Louis, Missouri, to Morehouse, Missouri, is 205 miles; that the distance from St. Louis, Missouri, to Sikeston, Missouri, is 211 miles; that the distance from St. Louis, Missouri, to Charleston, Missouri, by way of the Belmont branch of defendant's line of railroad is 178 miles, and by way of Poplar Bluff is 226 miles; that all of said stations are not on a direct line, but all are in the same general direction from the city of St. Louis, Missouri, as is the city of Poplar Bluff, and a greater distance therefrom.

"I further find that prior to the 20th day of March, 1896, and until long after the 20th day of March 1899, the defendant did publish and promulgate as its tariff rates to be charged, and that defendant did charge, collect and receive for the transportation of the various classes of freight from the city of St. Louis, Missouri, to the city of Poplar Bluff, Missouri, as follows: On first class, the sum of seventy-five cents per hundred pounds; on second class, the sum of fifty-eight cents per hundred pounds; on third class, the sum of fifty cents per hundred pounds; on fourth class, the sum of forty cents per hundred pounds; and that during said time the defendant did publish and promulgate as its tariff rate to be charged, and that defendant did charge, collect and receive, during the same time, for the transportation of the various classes of freight from the city of St. Louis, Missouri, and shipped through Poplar Bluff, Missouri, to the cities or towns of Dexter, Essex, Grays Ridge, Morehouse, Sikeston and Charleston, as follows: On first class, fifty cents per hundred pounds; on second class, thirty-five cents per hundred pounds; on third class, thirty cents per hundred pounds; on fourth class, twenty-five cents per hundred pounds; that the defendant did charge and collect and require the said firm of Cohn & Pelz to pay on the various classes of freights as follows: On first class, twenty-five cents per hundred pounds; on second class, twenty-three cents per hundred pounds; on third class, twenty cents per hundred pounds; on fourth class, fifteen cents per hundred pounds, for the transportation of freight from St. Louis, Missouri, to Poplar Bluff, Missouri, in excess of the amount charged by defendant to other merchants for the transportation of freight from St. Louis, Missouri, to the other points named on defendant's line of railroad.

"I do further find that from March 20 1896, to March 20, 1899, the firm of Cohn and Pelz shipped from St. Louis, Missouri, to Poplar Bluff, Missouri, over defendant's said line of railroad of the various classes of freight as follows: Of first class, 120,166 pounds, for which they paid to defendant...