Knight v. Quincy, O. & K. C. R. Co.

• Decision Date: 01 October 1906
• Citation: 96 S.W. 716,120 Mo. App. 311
• Court: Missouri Court of Appeals
• Parties: KNIGHT v. QUINCY, O. & K. C. R. CO.

96 S.W. 716

120 Mo. App. 311

KNIGHT v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

1. COURTS—JURISDICTION—AMOUNT INVOLVED —COMPUTATION—ATTORNEY'S FEE.

Rev. St. 1899, § 1674, gives circuit courts jurisdiction of an action for the recovery of money when the sum demanded, exclusive of interests and costs, exceeds $50. Section 1140 provides that, in any action against a carrier under the statute, it shall be liable for a reasonable attorney's fee to be fixed by the court, and taxed and collected as part of the costs. Held that, in an action against a carrier under the statute, the attorney's fee could not be considered as a part of plaintiff's demand in order to bring the action within the jurisdiction of the circuit court.

2. SAME — PLEADING — COMPLAINT — AMENDMENT.

Rev. St. 1899, § 1140, in relation to carriers, provides that, in an action against a carrier

under the statute, in case of plaintiff's recovery, defendant shall be liable for treble damages, and section 1082 provides that carriers shall receive all live stock offered for transportation. Plaintiff's petition alleged that he offered an animal to defendant for transportation, but that transportation was refused, and in an insulting manner. Actual damages and treble damages under the statute were prayed for. It appearing that the amount sued for was less than the jurisdictional amount, plaintiff filed an amended petition, alleging the same facts founded on a breach of defendant's common-law duty, and seeking compensatory damages and exemplary damages, in a sum sufficient to cause jurisdiction to attach. Held, that the amendment did not change the cause of action was properly allowed, and was sufficient to sustain jurisdiction.

3. CARRIERS—TRANSPORTATION OF LIVE STOCK —REFUSAL TO ACCEPT SHIPMENT.

Where, at the time plaintiff offered an animal to a carrier for transportation, conditions were such, owing to the delay of a train, that the animal, if shipped, would be detained a whole day at a certain point, of which plaintiff was informed, conceding that the cause of the delay which the shipment would have encountered was unavoidable, the carrier was liable for refusing to transport the animal unless it should be accompanied by a caretaker, or the shipper should sign a release for all damages and liabilities. Under the circumstances it was the duty of the carrier to receive the shipment, and to exercise reasonable care to supply the animal's wants in case it required food and water during detention.

Appeal from Circuit Court, Grundy County; P. C. Stepp, Judge.

Action by Ashley G. Knight against the Quincy, Omaha & Kansas City Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. G. Trimble and Hall & Hall, for appellant. E. M. Harber, H. C. Smith and Hubbell Bros., for respondent.

JOHNSON, J.

Action against a common carrier to recover damages for an alleged wrongful refusal to receive and transport a hog offered by plaintiff for shipment. Plaintiff had judgment in the sum of $2 compensatory, and $63 exemplary, damages, and defendant appealed.

The suit was brought in the circuit court, and, in the petition plaintiff alleged, in substance, that he brought the animal properly crated and in good condition to defendant's station at Trenton and requested defendant's agent to ship it to Green City, another station on defendant's line, some 40 miles east of Trenton, and that defendant, not only wrongfully refused to receive and ship the property, but intentionally committed the wrong in an insulting manner. Actual damages were laid at $2 which plaintiff prayed to have trebled under the provision of section 1140, Rev. St. 1899, and plaintiff further prayed for the recovery of a reasonable attorney's fee, to wit, $50, to be taxed as costs, as provided by said section of the statutes. The right to the remedy invoked was based on the violation of the statutory duty imposed on common carriers by section 1082. Rev. St. 1899.

In the answer filed by defendant to this petition, among other defenses, the jurisdiction of the court over the subject-matter was attacked on the ground that the amount of plaintiff's demand was but $6, the treble damages claimed; that the attorney's fee claimed was no part of the demand, but should be regarded as costs, and therefore the court had no original jurisdiction over the cause; the amount involved being less than $50. Section 1674, Rev. St. 1899. Plaintiff then filed an amended petition containing two counts. In the first the cause of action stated was the same as that pleaded in the original petition, but the amount of the attorney's fee was changed to $150. In the second the facts stated were a repetition of those stated in the first count and in the original petition, but the cause was founded on a breach of the common-law duty of defendant as a common carrier, and the relief sought included compensatory damages amounting to $2, and exemplary damages laid at $150. The right to recover damages of the latter class was predicated on the allegation that defendant "contemptuously, insolently, wrongfully, and maliciously refused" to receive and ship the property. Defendant moved to strike out the second count on the grounds, among others, that the cause pleaded therein differed essentially from that pleaded in the original petition, and therefore was not a proper amendment, and that, as the court had no jurisdiction over the subject-matter of the original action, none could be acquired through an amendment thereof. This motion was overruled, and defendant filed answer to the merits, in which the objection to the jurisdiction of the court was repeated. In the instructions given on behalf of plaintiff the first count was abandoned, and judgment was recovered on the second count alone. The objections made in the motion to strike out were reiterated in the motions for a new trial and in arrest of judgment, and are urged by defendant as grounds for a reversal of the judgment.

In a civil action for the recovery of money, whether such action be founded upon contract or tort, or be for the recovery of a penalty given by statute, the circuit court has no jurisdiction over the cause unless the sum demanded, exclusive of interest and costs, exceeds $50. Section 1674, Rev. St. 1899; Barnes v. Railway (not yet officially reported) 95 S. W. 971; Bradley v. Asher, 65 Mo. App. 589; Bay v. Trusdell, 92 Mo. App. 377. In the original action the amount of the damages claimed by plaintiff, when trebled, fell below the jurisdictional sum; but it is argued by plaintiff that section 1140 of the statutes enabled him to recover a reasonable attorney's fee, in an action founded on a violation of the duty imposed on common carriers, by section 1082, and, notwithstanding, the statute provides that the attorney's fee shall be taxed and collected as a part of the costs in the case, such fee is in the nature of a penalty for the wrong committed, and, being a part of the penalty he is entitled to recover, necessarily must be considered as a part of his demand. From this premise the conclusion is drawn that the penalty demanded by plaintiff included his actual damages trebled, and his attorney's fee, and, as these two amounts aggregated $56, the circuit court had original jurisdiction over the cause. In Perkins v. Railway, 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426, the Supreme Court decided that a statutory provision similar to that under consideration should not be condemned as being special legislation, and observed "the statute in question is as much a police regulation as is the double damage section, and the attorney's fee may be lawfully imposed as a penalty for the violation of the law." And in Briggs v. Railway Company, 111 Mo. 168, 20 S. W. 32, the same court again treated the attorney's fee as a part of the penalty imposed for the wrongdoing, saying that "the fact the amount is taxed as costs, and is called an attorney's fee, does not change its real character" and held the defendant was entitled to a jury trial in the assessment of the value of the legal services. But, in the later case of Paddock v. Railway, 155 Mo. 524, 56 S. W. 453, the Supreme Court, following the decision of the Supreme Court of the United States in the case of Gulf, etc., Railway v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, held the provision for the recovery of an attorney's fee, in an action of this character, to be in conflict with the fifth amendment to the Constitution of the United States, and therefore void, and overruled the Perkins Case. In thus holding that the legislative attempt to burden a certain class of unsuccessful litigants with the payment of their adversaries' attorney's fees was an attempt to deprive them of their property without due process of law, and to single them out as the subjects of class legislation, the view previously entertained that the attorney's fee should be treated as a part of the penalty imposed for the violation of a statutory duty necessarily had to be abandoned. To compel the losing party to a suit to pay his opponent's attorney's fee doubtless should be regarded as the imposition of a penalty, but it is a penalty inflicted for resisting the payment of a legal demand, and in no sense belongs to the remedy provided as a redress for the wrong upon which the demand is founded. When plaintiff's cause of action accrued under the statute the only penalty he was entitled to receive was his treble damages.

Being compelled to bring suit to enforce his demand, the contingent penalty of an attorney's fee, which the statute attempted to give him, regardless of the constitutional question involved, should not be considered a part of the demand...