Louisville & N.R. Co. v. Greenbrier Distillery Co.

• Decision Date: 14 June 1916
• Citation: 187 S.W. 296,170 Ky. 775
• Parties: LOUISVILLE & N. R. CO. v. GREENBRIER DISTILLERY CO. ET AL.
• Court: Kentucky Court of Appeals

187 S.W. 296

170 Ky. 775

LOUISVILLE & N. R. CO. v. GREENBRIER DISTILLERY CO. ET AL.

Court of Appeals of Kentucky.

June 14, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Separate proceedings by the Greenbrier Distillery Company and others against the Louisville & Nashville Railroad Company before the Railroad Commission of Kentucky. From a judgment of the circuit court affirming an award made by the Railroad Commission against the defendant, it appeals. Judgment for the named plaintiff affirmed, and appeals from judgments for other plaintiffs dismissed.

C. H Moorman and W. A. Colston, both of Louisville, for appellant.

J. V Norman and John S. Kelley, Jr., both of Louisville, for appellees.

HURT J.

This appeal is from a judgment of the Jefferson circuit court upon an award made by the Railroad Commission of Kentucky against the Louisville & Nashville Railroad Company in favor of the following parties, for the following sums, respectively, and with interest on the sums from August 10, 1910, viz.: Greenbrier Distillery Company, the sum of $532.62; Early Times Distilling Company, the sum of $408.51; Mueller, Wathan & Kobert, the sum of $400.77; S. Grabfelder & Co., the sum of $325.78; Willow Springs Distillery Company, the sum of $321.62; Wright & Taylor, the sum of $257.50; Taylor & Williams, the sum of $237.19; Eminence Distillery Company, the sum of $248.37; Old Grand Dad Distillery Company, the sum of $231.38; T. W. Samuel's Distillery, the sum of $123.42; the Warwick Distillery Company, the sum of $127.74; Burks Springs Distillery Company, the sum of $145.25; W. B. Samuels & Co., the sum of $58.81; M. C. Beam & Co., the sum of $57.42; Head & Parker, the sum of $44.80; Blair, Osborne & Ballard Distillery Company, the sum of $42.96; and Tom Moore Distillery, the sum of $44.51.

Each of the foregoing was a separate and independent judgment in favor of the party for whose benefit it was rendered, and no one else had any interest therein or any control over the judgment. Each of the foregoing judgments was a personal judgment, and, except the first named, was for a less amount than the sum of $500. The eight judgments last named were each for a sum less than $200. Section 950, subsec. 1-3, Ky. St., fix the amounts which must be in controversy before this court is authorized to entertain an appeal from the judgment of an inferior court. This court is not authorized in any instance to entertain or hear an appeal from a judgment for the recovery of money only when the amount in controversy is less than the sum of $200, exclusive of interest and costs. An appeal cannot be taken to this court, as a matter of right, from a judgment for the recovery of money, if the amount, exclusive of interest and costs, in controversy, is less than the sum of $500, but, when the amount in controversy, exclusive of interests and costs, is as much as $200 and is less than $500, this court may grant an appeal from a judgment for the recovery of money if upon an examination of the record it appears--

"that the ends of justice require that the judgment appealed from should be reversed; or when the construction or validity of a statute or the construction of a section of the Constitution is necessarily and directly put in issue, and a correct decision of the case cannot be had without passing on the validity of the statute or construing the section of the Constitution or statute involved."

When in such case an appeal is sought, it can only be obtained in this court and in the manner provided by subsection 3 of section 950, supra, and the rule of this court relating to that subject. The party desiring an appeal must file the record in the clerk's office of this court and enter his motion to be granted an appeal. The circuit court is without authority to grant an appeal from its judgment to this court when the judgment is for the recovery of money only, and the amount in controversy is less than the sum of $500. The appellant has not sought any appeal in this court from the judgments in the circuit court against it, and hence this court can only dismiss the appeals from each of the judgments, except the one from the judgment in favor of the Greenbrier Distillery Company, which appeal the circuit court had authority to grant, as the amount in controversy between it and appellant exceeds the sum of $500. Oman-Bowling Green Stone Co. v. L. & N. R. R. Co., 169 Ky. 832, 185 S.W. 118; Childers v. Ratliff, 164 Ky. 123, 175 S.W. 25; Gough v. I. C. R. R. Co., 166 Ky. 568, 179 S.W. 449.

It appears that the Greenbrier Distillery Company, which we will hereinafter call the appellee, as well as the other parties, the appeals from the judgments in whose favor have been as above stated dismissed, made separate complaints, but at the same time, to the Railroad Commission, that the appellant had theretofore, and since the 25th day of March, 1910, been charging, collecting, and receiving from them more than a just and reasonable compensation for the transportation to them over its lines of railroad within the state of Kentucky of certain commodities which were used by them as materials in the manufacturing of liquors at their respective places of operation, and sought awards in their favor against appellant in reparation of the damages sustained by them on account of such extortionate charges so made for the transportation of the commodities. The proceeding was based upon the provisions of sections 816, 819, and 829, Ky. St.

Section 816, supra, is as follows:

"If any railroad corporation shall charge, collect or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state, or for the use of any railroad car upon its track, or upon any track it has control of, or the right to use in this state, it shall be guilty of extortion."

Section 819, supra, among other things, provides that, when a railroad company shall be guilty of extortion, it shall be liable in damages to the party aggrieved for the damages sustained.

Section 829, supra, is as follows:

"The commission shall hear and determine complaints under sections 816, 817, and 818. Such complaints shall be made in writing, and they shall give the company complained of not less than ten days' notice of the time and place of the hearing of the same. They shall hear and reduce to writing all evidence adduced by the parties, and render such award as may be proper. If the award of the commission be not satisfied within ten days after the same is rendered, the chairman shall file a copy of said award and the evidence heard, in the office of the clerk of the circuit court of the county, which, under the Code of Practice, would have jurisdiction of said controversy, and the clerk of said court shall enter the same on the docket for trial; and summons shall be issued, as in other cases, against the party against whom the award shall have been rendered, requiring said party to appear in the court, within the time allowed in ordinary cases, and show cause why said award shall not be satisfied. If such party fails to appear, judgment shall be rendered by default, and the same proceedings had thereon as in other ordinary cases. If a trial is demanded the case shall be tried, in all respects, as other ordinary cases in which the same amount is involved, except that no evidence shall be introduced by either party except that heard by the commission, except such as the court shall be satisfied, by sworn testimony, could not have been produced before the commission by the exercise of reasonable diligence; the judgment and proceedings thereon shall be the same as in other ordinary cases."

Notice was given to appellant, as required by sections 829 and 820a, of the time and place of the hearing of the complaints, and the nature of the complaints and the matters to be investigated. The complainants and appellant appeared, with counsel. Such arguments, statements, and evidence was heard as either party desired to offer, and the evidence heard was reduced to writing. The complaints were, without objection, all heard together. It appeared from the statements received as evidence and the sworn testimony that for many years previous to the 25th day of March, 1910, the appellant had charged and received a rate for the transportation of the commodities used in manufacturing liquors, from Louisville, Newport, and Covington to the 16 different places at which the complainants conducted their manufacturing establishments, and for the transportations of the commodities to the complainants, less than the rate charged other persons for the transportation of like commodities to the same places, but on March 25, 1910, the special rate charged complainants was withdrawn, and the same rates thereafter charged other persons for the transportation of like commodities to the same places was imposed upon the commodities transported to the complainants.

The Railroad Commission arrived at the conclusion that the rates charged and received by appellant for the transportation of such commodities to and from Louisville, Newport, and Covington to the places of the establishment of complainants were extortionate, and thereupon, as authorized by section 820a, supra, made an order by which it fixed the rates of transportation for the commodities in question to and from the places of the plants of complainants and Louisville Newport, and Covington at the same as the special rate which had formerly been charged the complainants for the transportation of the commodities from the three points named to the places of their plants, but made the rates apply to all persons who might receive or ship such commodities at such places alike. ...