Hackworth v. Missouri Southern R. Co.

• Decision Date: 31 December 1920
• Docket Number: No. 21247.,21247.
• Citation: 227 S.W. 1032,286 Mo. 282
• Parties: HACKWORTH v. MISSOURI SOUTHERN R. CO.
• Court: Missouri Supreme Court

227 S.W. 1032

286 Mo. 282

HACKWORTH v. MISSOURI SOUTHERN R. CO.

No. 21247.

Supreme Court of Missouri, in Banc.

December 31, 1920.

Rehearing Denied January 29, 1921.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by Nannie Hackworth, executrix of the will of B. F. Hackworth, deceased, against the Missouri Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

J. B. Daniel, of Piedmont, and Arthur T. Brewster, of Ironton, for appellant.

Stuart L. Clark, of Eminence, for respondent.

GRAVES, J.

B. F. Hackworth, to the May term, 1915, of the Reynolds county circuit court, instituted his action in 748 counts, against the defendant, for alleged overcharges in the shipment of railroad ties. The several counts are in the nature of actions for money had and received, and so the judgment runs. Upon trial the plaintiff dismissed as to 15 counts and had judgment on the remaining counts, in the aggregate sum of $10,572.36, with interest thereon at 6 per cent. per annum from February 23, 1915. The amount sued for in each count was the difference between the freight rate fixed by section 3241, R. S. 1909, and the rate actually charged.

The answer was: (1) A general denial; (2) a plea that the rates fixed by said section 3241 were confiscatory, and violative of stated provisions of the federal Constitution, as well as stated provisions of the state Constitution; (3) the five-year statute of limitations was invoked as to certain counts; and (4) the three-year statute of limitations (section 1890) was likewise invoked as to all of the counts. This paragraph was stricken out upon motion of plaintiff. The shipment of ties ran through the years (or parts of years) 1909, 1910, and 1911.

By reply plaintiff sought to evade concededly outlawed counts, by pleading the pendency of the Missouri Rate Cases in the courts of the United States, and averred that the statute would not run against him until the United States Supreme Court decided the validity of section 3241, supra, on June 16, 1013; the enforcement of the statute having been stayed by injunction in such rate cases. Defendant was not a party to such cases, nor was the plaintiff herein.

From the judgment indicated the defendant has appealed. The present plaintiff is the executrix of the will of B. F. Hackworth, now deceased.

This outlines the case.

I. The railroad in question is in a rough mountainous section of the state, and has sharp curves and excessive grades. A large portion of its business is the transportation of railroad ties. In fact, this court would have to judicially know the character of the country and its products. Of matters of state history the courts are not more ignorant than the general public. Judicial knowledge of facts is measured by general knowledge of the same facts. We judicially know the different sections of our state, its products and industries, because such are taught in the schools, and are matters of general knowledge. But the evidence in this case shows that a very large per cent. of this railroad's business was carload shipments of railroad ties. Defendant has challenged the validity of the act of 1907, now section 3241, R. S. 1909, as applied to it, in the matter of the rates on railroad ties, as fixed by such act; this upon the ground that they are confiscatory, in that they are, bringing, and during the years herein involved brought, to the railroad less money than it expended in the hauling of the ties. In 1907 this road did not have mileage enough to place it within class C as railroads were then and now classified. R. S. 1909, § 3231. The act of 1907, now R. S. § 3241, did not then apply to it, so that it had no part or parcel in the Missouri Rates Cases. In 1909, and before the shipment of the ties herein involved, its mileage exceeded 45 miles, and it thereupon fell within the terms of said section 3241. Its present mileage but little more than brings it within the statute, supra; i. e., 54 miles of main line, 10 miles of branch lines, and 5 miles of sidings and spur tracks. Its line is in a tie, lumber, and wood district of the state.

Up to 1913 schedules of rates within the statutory maximums were fixed by the Railroad and Warehouse Commissioners. Since 1913 they have been fixed by the Public Service Commission, under the act of 1913. Laws of 1913, p. 557 et seq.

Counsel have by the following table shown the rates on railroad ties both before and after the act of 1907, now R. S. 1909, § 3241. This table shows:

                                      "Rates on Ties and on Lumber, 1905, in Cents Per Cwt
                -------------------------------------------------------------------------------------------------
                Distance Not      | 5   | 10  | 15  | 20  | 25   | 30   | 35   | 40   | 45   | 50   | 55   | 200
                Exceedings miles. |     |     |     |     |      |      |      |      |      |      |      |
                ------------------|-----|-----|-----|-----|------|------|------|------|------|------|------|-----
                 1905             |     |     |     |     |      |      |      |      |      |      |      |
                Lumber .......... | 5   | 5   | 5   | 5   | 5    | 5.5  | 5.5  | 5.5  | 5.5  | 5.5  | 6    | 9
                Ties ............ | 2   | 2   | 3   | 3   | 3.25 | 3.25 | 3.50 | 3.50 | 3.75 | 3.75 | 4    | 7.75
                                  |     |     |     |     |      |      |      |      |      |      |      |
                 1907             |     |     |     |     |      |      |      |      |      |      |      |
                Lumber .......... | 5   | 5   | 5   | 5   | 5    | 5.5  | 5.5  | 5.5  | 5.5  | 5.5  | 6    | 9
                Ties ............ | 2   | 2   | 2   | 2   | 2    | 2    | 2    | 2    | 2    | 2    | 2.25 | 6
                                  |     |     |     |     |      |      |      |      |      |      |      |
                 1915             |     |     |     |     |      |      |      |      |      |      |      |
                Lumber .......... | 4   | 4.2 | 4.4 | 4.6 | 4.8  | 5    | 5.1  | 5.3  | 5.4  | 5.6  | 5.8  | 9.4
                Ties ............ | 2.5 | 2.7 | 2.9 | 3.1 | 3.3  | 3.5  | 3.6  | 3.8  | 3.9  | 4.1  | 4.3  | 7.9
                                  |     |     |     |     |      |      |      |      |      |      |      |
                 1917             |     |     |     |     |      |      |      |      |      |      |      |
                Lumber .......... | 4.6 | 5   | 5.4 | 5.8 | 6.1  | 6.4  | 6.6  | 6.9  | 7.1  | 7.4  | 7.7  |
                Ties ............ | 3.1 | 3.5 | 3.9 | 4.3 | 4.6  | 4.9  | 5.1  | 5.4  | 5.5  | 5.9  | 6.2  |
                -------------------------------------------------------------------------------------------------
                

From this table it appears that both before and after the act of 1907 the rate on ties for this short road was much more favorable than those fixed by the act of 1907. The rate fixed in 1907, quoting from section 3241, is:

"For a carload of 40,000 pounds of minimum weight undressed stone, crushed rock, sand, railroad ties, cordwood, building or paving brick, not exceeding 40 cents per ton of 2,000 pounds to the ton for the first fifty miles or fractional part thereof, and not exceeding five cents per ton per carload for the next ten miles or fractional part thereof, and not exceeding 5 cents per ton per carload for each additional ten miles or fractional part thereof. In computing the rate of freight, according to the provisions of this article, the distance shall be computed from the point where it is received to the point of destination in the state, notwithstanding it may pass from one road to another."

The rates prior to 1907 were rates fixed by the Missouri Railroad and Warehouse Commissioners. From 1915 on the rates are those fixed by the Public Service Commission, under the act of 1913 supra. Those for 1915 were fixed in the case of In re Missouri Southern Railroad Company, 3 Public Service Commission Reports, 1, loc. cit. 66. This proceeding was begun in 1914.

By an expert in this case it is shown that the hauling of ties at the statutory rate would have entailed a loss upon this carrier, as follows:

                Years.         Cost of      Revenue from    Loss from
                               Service.   Statutory Rates.  Operation
                1910 .........$11,400.25    $ 7,918.97      $ 3,481.27
                1911 ......... 13,596.26      9,028.25        4,568.01
                1912 ......... 10,677.31      6,647.43        4,029.88
                1914 ......... 29,454.31     18,346.10       11,108.21
                

In fact, it is not seriously questioned that the statutory rate fixed by section 3241, supra, would have entailed a loss upon the defendant during the years covered by this suit. It is urged by counsel for plaintiff that this record does not show that the road was not getting fair returns upon its investment, notwithstanding this loss upon railroad ties. If the matter reaches this point, those facts can be dealt with later. This matter is practically disposed of by the briefs filed in banc, which we will not. To this point we have this simple question: Can this statute, as applied to this defendant, stand, when the rates fixed therein compels the defendant to carry a very large per cent. of its carload traffic at an absolute loss? Of this next.

II. As stated above, it is not seriously contended that the hauling of railroad ties at the rate fixed by section 3241, supra, would have been a losing game for this short railroad.

It is presumed to he nonconfiscatory until its confiscatory character is made to appear. Its confiscatory character is made to appear: (1) By the fact that the previous rate (likewise presumed to be reasonable) was much higher; (2) by the direct evidence of a railroad expert, who, according to well-established railroad rules, made the specific calculations set out in the statement; and (3) by the later rulings of the Public Service Commission. Upon the question now for determination, suggested at the close of the previous paragraph, learned counsel for plaintiff in his divisional brief says:

"Appellant also invokes the rule laid down in the North Dakota Rate Cases (Northern Pacific Railway Co. v. North Dakota, 236 U. S. 585, 35 Sup....