Kansas City Terminal Ry. Co. v. James

• Decision Date: 02 April 1923
• Docket Number: No. 22813.,22813.
• Parties: KANSAS CITY TERMINAL RY. CO. v. JAMES et al.
• Court: Missouri Supreme Court

251 S.W. 53

298 Mo. 497

KANSAS CITY TERMINAL RY. CO. v. JAMES et al.

No. 22813.

Supreme Court of Missouri, in Banc.

April 2, 1923.

Motion for Rehearing Denied April 28, 1923.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Suit by the Kansas City Terminal Railway Company against Tom James and others to enjoin defendants' taxicab drivers from using plaintiff's premises for the purpose of securing or discharging passengers. Decree for defendants, and plaintiff appeals. Affirmed.

Samuel W. Sawyer, of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondents.

Statement.

WOODSON, C. J.

The plaintiff brought this suit in the circuit court of Jackson county against the defendants to enjoin the latter from entering the Plaza in front of the Union Depot, at Kansas City, Mo., for the purpose of securing and discharging passengers arriving at or departing from said depot, on various railroad trains entering said depot, or departing therefrom, from and destined to all points of the United States, Canada, and Mexico.

The trial was before the circuit court, which resulted in a finding and a decree for the defendants, and the plaintiffs after moving unsuccessfully for a rehearing, duly appealed the cause to this court.

The sufficiency of the pleadings is not challenged, so we will put them aside.

This case was first argued and submitted to division No. 1 of this court, and after argument and submission it was assigned to our learned Commissioner SMALL to write. He reported that in his opinion the judgment of the lower court should be reversed, with directions that the defendants should be perpetually enjoined as prayed.

There was no vote taken on the opinion in division No. 1, but It ordered the cause to be transferred to court in banc, where it was reargued and submitted, and assigned to the undersigned to write the opinion.

The facts of the case are not complicated, and are correctly "stated by Judge SMALL in his division opinion, which I hereby adopt as the facts of the case in banc. They are as follows:

The defendants, some 30 persons in number, are the owners of automobiles and are engaged in transporting passengers for hire to and from the plaintiff's depot in said city. The petition was filed on the 10th day of June, 1920. It shows that 12 different trunk lines of railroad enter and use plaintiff's depot in handling their in going and outgoing passengers and their baggage. That plaintiff owns the land upon which the Union Station and its tracks are located and also the land south of said Union Station and bordering thereon, extending from Main street on the east to Pershing Road on the south and Broadway on the west, known as Union Station Plaza, which furnishes access to and egress from said Union Station; that plaintiff at its own cost and expense has provided such sidewalks and roadways on said Plaza as are necessary for the use of the traveling public having business with the plaintiff or the lines of railroad using said Union Station. That the land covered by said Plaza cost said plaintiff approximately $650,000 and is fairly worth $1,000,000, and plaintiff has expended upon paving, sidewalks, and other improvements on said Plaza $90,000, which are now reasonably worth that sum. That there are and at all times have been exclusive of the vehicles owned and operated by defendants sufficient vehicles for the transportation of passengers and baggage to and from said Union Station, which are permitted to stand upon the Plaza by the plaintiff and the owners of which observe the regulations imposed by the plaintiff and recognize the right of plaintiff to manage and control said Union Station and Plaza. That defendants and each of them assert the right to stand their automobiles upon the said Plaza and the roadways thereon and appurtenant thereto and to solicit business and otherwise to do business on the said Plaza and the roadways and sidewalks thereon and appurtenant thereto without securing plaintiff's permission and in defiance of plaintiff's ownership of said Plaza and the regulations for the protection of the public and for the preservation of order thereon. That defendants, and each of them in pursuance of their alleged claims, have heretofore continued to and have repeatedly stood their vehicles on the Plaza and roadways thereon; have solicited business thereon in a loud and boisterous manner; have interfered with and annoyed patrons of said lines of railroad using said Union Passenger Station, and have committed repeated trespasses upon said Plaza and Union Station. Defendants have also taken possession of a part of said Plaza and roadways thereon in defiance of plaintiff's ownership thereof and of plaintiff's rights and have refused to surrender the possession and control thereof to the plaintiff, and will continue to do so, violating the plaintiff's rights, unless restrained by an order of court, and plaintiff will thereby suffer irreparable damage. That defendants each earn large sums from the business so unlawfully transacted upon the plaintiff's property. The reasonable value of the space occupied by them exceeds $100,000. The value of the right asserted by plaintiff and sought to be protected exceeds $10,000 and plaintiff has no adequate remedy at law. The prayer is that defendants and their agents be enjoined from standing their horses, automobiles, and vehicles of every kind on the said Plaza or upon the roadways thereon or appurtenant thereto, and from soliciting the custom and patronage of persons or passengers upon said Plaza, sidewalks, or roadways or into said station, except for the purpose of actually delivering passengers or baggage thereat and of receiving passengers and baggage for the transportation of which they shall have already received orders before coming upon said Plaza and for general relief. The answer put the allegation of the petition in issue and alleged that ever since the Union Station was opened to the public said Plaza and the sidewalks and the roadways thereon had always been used by the public, and that by reason thereof and the conduct of the plaintiff had become public roadways and public sidewalks and are now public roadways and sidewalks and are such under the laws of this state. That plaintiff is not entitled to the relief sought because it does not come into court with clean hands, in that the plaintiff and the Shaw Transfer Company, a corporation doing a taxicab business in Kansas City, Mo., seek by this suit to set up and establish a monopoly of the taxicab business done to and from the Kansas City Terminal Railway Station in the state of Missouri contrary to the laws of said state. The reply was a general denial. The testimony of the plaintiff tended to show the facts charged in its petition to be true. There was no serious attempt to show in the evidence, and no contention is made in the brief of counsel for defendants here, that the Plaza or any of the roadways or sidewalks thereon were ever dedicated to the public, but that they were used with the consent of the plaintiff as private rights of way for access and egress from said Union Station by the traveling public.

The evidence of the defendant tended to contradict that of the plaintiff as to the want of decorum on the part of the defendants in soliciting business upon the plaza and sidewalks and roadways of the plaintiff. Defendants also offered in evidence two contracts made by the plaintiff with the Shaw Transfer Company, one dated the 31st of January, 1914, by which the plaintiff granted to said taxicab company the right to solicit patronage for its cabs upon said Plaza and at its said Union Station and to allow the cabs, carriages, and trucks of the transfer company to stand and wait upon said premises of the plaintiff, provided they did not interfere with traffic in and out of said station, and that they should stand at such places as might be designated by the president of the plaintiff and under such regulations as he might prescribe. Said contract further provided that the terminal company should take all reasonable and lawful steps to secure to the transfer company the enjoyment of the privilege thereby granted, and would so far as it reasonably and lawfully may prevent the cabs, carriages, and baggage trucks of any other person or corporation engaged in soliciting or handling the same business as the transfer company and in competition with it from so waiting or standing upon the premises of the terminal company at said Union Station. This contract further permitted the Shaw Transfer Company to establish an office and booth inside of the Union Station for the solicitation and handling of business and to erect signs upon plaintiff's premises calling attention to the business of the transfer company. Under this contract, as compensation for the privileges granted, the terminal company was to receive 13 per cent. of the gross receipts for each calendar year in excess of $50,000 received by the transfer company from all passenger and baggage business done by it at the Union Station or upon the trains entering said station. This contract was in effect for a period of five years and until the 15th of May, 1920, when a new and similar contract was entered into, leaving out the exclusive clause in the prior contract and inserting in lieu thereof the following: "Seventh. The rate of compensation to the terminal company provided for in article sixth hereof is fixed in view of the fact that the terminal company has not, at this time, given to any other firm, person or individual rights and privileges similar to those herein granted to the transfer company, and it is agreed that should the terminal company hereafter do so, or should such rights and privileges hereafter be exercised or enjoyed by any person, firm or individual other than the transfer company, then this contract may, at the option of the transfer company, be canceled on thirty (30) days'...