Mcgrew Coal Co. v. Missouri Pac. Ry. Co.

• Decision Date: 22 December 1919
• Citation: 280 Mo. 466,217 S.W. 984
• Parties: McGREW COAL CO. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

217 S.W. 984

280 Mo. 466

McGREW COAL CO. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Rehearing Denied January 26, 1920.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Suit by the McGrew Coal Company against the Missouri Pacific Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

Edward J. White and James F. Green, both of St. Louis, and Harvey C. Clark, of Jefferson City, for appellant.

Krauthoff, McClintock & Quant, of Kansas City, for respondent.

BROWN, C.

This petition, filed in the circuit court of Lafayette county, Mo., returnable to the February term, 1915, contains 52 counts. Each count is based upon alleged illegal charges on shipment of coal from Myrick, Mo., to some other station on the line of defendant's railroad in the state of Missouri. All the counts are identical except as to dates, amount of coal shipped, the rate charged, the destination and the comparative rate charged by the defendant for shipment between the points mentioned.

The first count is, omitting titles and signatures, as follows:

"Plaintiff avers that on April, 1908, it was and still is a coal mining company incorporated under the law of the state of Missouri. "Plaintiff for first cause of action avers that on October, 1879, the defendant was, and has ever since been, a railroad corporation, duly organized under the law of said state, and a common carrier for hire of freight and passengers between its station hereinafter named in said state.

"That within five years last past, and on the dates hereinafter named in Exhibit No. 1, plaintiff produced and sold bituminous coal from its mines near Myrick, one of defendant's stations in said county, and that on the various dates named in Exhibit No. 1, and in the cars therein described by number and initial, he shipped, by defendant's road, from said Myrick in the aggregate 640,400 pounds of his said coal in carload lots to the consignees named in said exhibit at Blackwater, another station on defendant's road in said state.

"Plaintiff avers that for the said carriage of said coal defendant fixed, charged, demanded, and received of the plaintiff 65 cents per ton, an illegal freight rate, being 25 cents per ton more than defendant was by law entitled to fix, demand, charge, and receive, in this, that during all said times and dates herein named defendant had fixed, charged, demanded, and received for the carriage of the same class of coal over its said line and over another part of its said road from its station of Waverly, and to another of its said stations, viz. Kansas City, in said state, a distance of 63.84 miles, 40 cents per ton by the carload, while the distance from said Myrick to said Blackwater was only 60.62 miles, for which said rate of 65 cents per ton for said carriage was fixed, charged, demanded, and received of plaintiff as aforesaid, and the same was illegal, and exceeded the amount the defendant was entitled to fix, charge, demand, and receive for said shipments by the sum of $80.05.

"And the plaintiff avers that it is damaged and aggrieved by reason of said illegal freight charge in the sum of $80.05. Wherefore he prays judgment for the same and for said damages not exceeding $1,000, and for all other and general relief according to the statute in such case made and provided."

The answer admitted that defendant was a corporation, and owned and operated the lines of railway mentioned in the petition, on which it was a common carrier of freight and passengers, and denied generally the other allegations of the petition. It also pleaded specially the unconstitutionality of certain statutes on which it assumed the petition was formed. Issue was joined on all these pleas by demurrer and replication.

The cause was submitted to the court on the pleadings and the following stipulation:

"It is hereby stipulated between the parties that the defendant's station, the rates charged by the defendant, and amount of coal transported, and the distance set out in the several counts of the petition are correctly stated therein.

"It is further stipulated that in this case the plaintiff, in quoting the price of said coal to the several consignees named in the exhibits herein, instead of quoting f. o. b. at Myrick, quoted a price delivered to the consignee's stations, which quotation was based upon the price at Myrick, plus the freight rate charged by the defendant. When the coal was received by the consignees such consignee paid defendant's agent the freight charges and forwarded the receipted freight bill to the plaintiff, to be credited on the price of said coal as part payment therefor, and then such consignee paid the plaintiff the difference between such freight bill and the quotation price.

"It is further stipulated that such coal was delivered by the plaintiff to the defendant for shipment in the usual and ordinary way, without any direction or request by plaintiff as to what particular trains the same must be transported in, and that the defendant received and transported the same in the usual ordinary course of business, on the usual train passing over defendant's road.

"It is further alleged that the trains in which the defendant hauled said cars of coal contained other cars and shipments consigned from points within this state to points without the same, from points without the same to points within this state, and from points from without this state through this state to points in other states."

Judgment was rendered for the plaintiff on each count of the petition, aggregating the total sum of $14,308.77, from which this appeal is taken.

I. The statement filed by the appellant in pursuance of the terms of section 2080 of the Revised Statutes of 1909 and the rules of this court made in pursuance thereof closes with a clear and concise presentation of the issues as follows:

"It is conceded that the rates charged, the distances between the different points and the amount of coal shipped, are as stated by the plaintiff, and the issues of law before this court are:

"(1) Whether the plaintiff paid the freight on the several shipments, and was in fact damaged as alleged in its petition and is the proper party to bring this action.

"(2) Whether, regardless of who in fact paid the freight, the respondent has been damaged, and is therefore entitled to recover.

"(3) Whether the sections of the statute on which this action is based are constitutional.

"The latter proposition has been decided adversely to the contention of the appellant by this court in prior actions between the same parties, but the question as to whether or not plaintiff can recover for damages, if any, sustained by the consignee, who in fact paid the freight, has never been passed upon by this court."

Notwithstanding this frank declaration the appellant has favored us with an elaborate brief upon the constitutional questions raised in the trial of the case, which are the same in all respects as those involved in the following cases: McGrew v. Missouri Pacific Railway Co., 177 Mo. 533, 76 S. W. 995; Id., 230 Mo. 496, 132 S. W. 1076; Id., 258 Mo. 23, 166 S. W. 1033; Id., 178 S. W. 1179; and McGrew Coal Company v. Same Defendant, 178 S. W. 1179. In each of these the questions were raised by similar pleadings and were presented to the court for determination in the same...