McGrew v. Missouri Pac. Ry. Co.

• Decision Date: 05 February 1906
• Citation: 118 Mo. App. 379,94 S.W. 719
• Parties: McGREW v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

94 S.W. 719

118 Mo. App. 379

McGREW v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied April 2, 1906.

1. APPEAL—LAW OF THE CASE—SCOPE OF DECISION.

The decision of the Supreme Court on a prior appeal constitutes the law of the case and is determinative, not only of all questions referred to in the opinion filed, but of all others properly before the court on such appeal.

2. SAME.

Where an order sustaining a demurrer to a petition against a carrier, alleging 21 separate causes of action for overcharge, prohibited by Rev. St. 1899, § 1126, and demanding treble damages, as authorized by section 1140, was reversed by the Supreme Court, it will be presumed, on a subsequent appeal to the Court of Appeals, that the Supreme Court determined that the remedy afforded by section 1140 applied to causes of action grounded on section 1126.

3. CARRIERS — UNLAWFUL RATE — RAILROAD AND WAREHOUSE COMMISSIONERS — APPROVAL.

A carrier can acquire no right to impose an unlawful freight rate from the act of the board of railroad and warehouse commissioners approving the same.

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

Action by James C. McGrew against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin L. Clardy and John Cashman, for appellant. Alexander Graves, for respondent.

JOHNSON, J.

Action to recover damages on account of excessive charges imposed by defendant as a common carrier for the carriage of sundry shipments of coal from Myrick, Mo., to Kansas City. The petition contains 21 counts (each shipment being pleaded as a separate cause of action) and is founded upon section 1126, Rev. St. 1899. It appears from the averments of the petition that Kansas City and Boonville, Mo., are on defendant's road, but in opposite directions from Myrick. Kansas City is 42 and Boonville 77 miles distant from Myrick. Defendant's rate on coal in car lots from Myrick to Kansas City is 55 cents per ton, and from Myrick to Boonville 40 cents per ton. Defendant exacted from plaintiff, a shipper, the regular rate on shipments to Kansas City, and in each count damages are claimed in the amount of the excess paid over the Boonville rate. Judgment is asked for treble damages under section 1140, Rev. St. 1899. Defendant demurred to the petition on the ground that no cause of action was pleaded. The demurrer was sustained. Plaintiff refused to plead further. Judgment was entered for defendant, and plaintiff appealed to the Supreme Court, where the judgment was reversed and the cause remanded. McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533, 76 S. W. 995. Defendant then, in due time, answered, admitting the various shipments, the amount of the charges paid, the rates to Kansas City and Boonville, the facts that both cities were on defendant's road, and their respective distances from Myrick—all as alleged in the petition—and pleaded a number of special defenses, in substance, as follows: That the rates of 55 cents per ton to Kansas City and 40 cents per ton to Boonville were reasonable, not discriminative in favor of the latter city, were fixed and authorized by the board of railroad and warehouse commissioners, and that the rate to Boonville was reduced below a reasonable charge in order to enable the mines and coal miners at Myrick to compete at Boonville with coal from competitive mines at Higbee, and to enable defendant to meet the competition of the Missouri, Kansas & Texas Railroad Company. On motion of plaintiff, all of these affirmative defenses were stricken from the answer by the court. Defendant refused to plead further, and, under its admissions, judgment was given plaintiff on each count for single damages, treble damages being waived by plaintiff, and defendant ...