Missouri, K. & T. Ry. Co. v. Empire Express Co.

• Decision Date: 12 May 1920
• Docket Number: (No. 117-2980.)
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. EMPIRE EXPRESS CO.
• Court: Texas Supreme Court

221 S.W. 590

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. EMPIRE EXPRESS CO.

(No. 117-2980.)

Commission of Appeals of Texas, Section A.

May 12, 1920.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the Empire Express Company against the Missouri. Kansas & Texas Railway Company of Texas and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals (173 S. W. 222), and defendants bring error. Judgment of Court of Civil Appeals reversed and judgment rendered for defendants.

Chas. C. Huff and A. H. McKnight, both of Dallas, Dinsmore, McMahon & Dinsmore, of Greenville, and Baker, Botts, Parker & Garwood, of Houston, for plaintiffs in error.

Collins & Cummings, of Hillsboro, J. E. Gilbert, of Dallas, and Clark & Leddy, of Greenville, for defendant in error.

SONFIELD, P. J.

The Empire Express Company, plaintiff, brought this action against the Missouri, Kansas & Texas Railway Company of Texas, hereinafter called the railway company, and the American Express Company, hereinafter called the express company, seeking the issuance of a writ of mandamus requiring the railway company to permit plaintiff to do an express business over its lines of railway in Texas, to enjoin the express company from interfering with plaintiff in conducting such business, and seeking recovery of damages, actual and exemplary, from the railway company. The suit is based upon the act of 1887, constituting articles 6616 and 6617, R. S. 1911, reading as follows:

"Art. 6616. Every railroad company operating a railroad within this state shall furnish reasonable and equal facilities and accommodations, and upon reasonable and equal rates, to all corporations and persons engaged in the express business, for the transportation of themselves, agents, servants, merchandise and other property, and for the use of their cars, depots, buildings and grounds and for exchanges at points of junction with other roads.

"Art. 6617. Any railroad company, which shall fail to comply with the provisions hereof, shall be liable to the aggrieved party, in an action on the case, for damages; and such railway company, in addition to liability to said action for damages, shall be subject to a writ of mandamus, to be issued by any court of competent jurisdiction, to compel compliance with the provisions of the preceding article; and the said writ of mandamus shall issue at the instance of any party or corporation aggrieved by a violation hereof, and any violation of said writ shall be punishable as a contempt."

Plaintiff alleged that under the statutes of the state of Texas it is given the right to conduct an express business upon any line of railroad within the state, upon reasonable and equal rates with any other express company, and that any railroad in the state is required to furnish plaintiff reasonable and equal facilities and accommodations, upon reasonable and equal rates as it does to other express companies, engaged in the express business on the line of such railroad; that it is the usage and custom of railways within the state to furnish facilities and accommodations to express companies, for the conduct and operation of the express business over their several lines of railroad, upon a percentage basis of the gross earnings derived from the conduct of the express business over such lines; that the percentage of gross earnings, paid by the several express companies to the various railroad companies over whose lines they operate, varies from 40 to 55 per cent. of such gross earnings on freight and merchandise transported, and 25 per cent. on money transported by the express companies; that it is usual to pay such percentage of gross earnings within 30 to 120 days after the expiration of each month of operation; that in some instances an advance payment is agreed upon between the railroad and express company, and in other instances no such advance payment is made; that at the time of the filing of this suit there was in existence a contract in writing between defendants, whereby, for the facilities therein specified, the express company paid the railway company 55 per cent. of its gross earnings, except on money, on which it paid 25 per cent. It was further alleged that on February 12, 1913, plaintiff tendered to the railway company a written contract, which it offered to execute, the contract being attached to its petition, and which contract was declined by the railway company, without stating the reason therefor, and without offering to negotiate with plaintiff concerning the making of a contract; that thereafter, on or about the 26th day of May, 1913, plaintiff tendered the railway company two contracts, attached as exhibits to its petition.

It is further alleged that by a supplemental petition, filed on June 4, 1913, in addition to the three contracts above referred to, which plaintiff had tendered and offered to execute, it then offered to enter into any reasonable contract with the railway company, and to execute any of the three contracts referred to, or a new contract, each of which should run for a period of 10 years from date, or for any other reasonable term; or that it would enter upon and conduct its express business on the lines of the railway company without any express contract in writing or other stipulation than the terms of article 6616, R. S. 1911, but that the railway company had continuously refused, and still refuses, to enter into any of the contracts tendered or any contract upon any terms, with plaintiff, whereby plaintiff might conduct an express business over the railway company's lines, and has refused to grant it the same facilities and accommodations, upon the same rates that it charges the express company for like service, or upon any rates. It was further alleged that the railway company received for free distribution certain trucks to be used by plaintiff in the conduct of its business, and thereby induced plaintiff to believe that it would be permitted to go on the railway company's lines to conduct an express business; and, relying on such action, plaintiff incurred expenses in the purchase of horses and equipment, the hiring of agents, renting of offices, etc.; that, by reason of the refusal of the railway company to permit it to go on its lines, it was deprived of profits, which it could have earned, in the sum of $10,000 per month for five months; that it was also deprived of the value of the use of certain horses and wagons; and, further, that a conspiracy to prevent its doing business existed between the railway company and the express company; and the conduct of the railway company in keeping it off the line was willful and malicious. Plaintiff prayed for the recovery of damages, actual and exemplary, and for a writ of mandamus "commanding and compelling the defendant railway company to furnish to this plaintiff reasonable and equal facilities, and accommodations upon reasonable and equal rates that it has been and is furnishing to the American Express Company, and that this court determine what is a reasonable rate for such facilities to be paid by the plaintiff to the railway company," and for an injunction against the express company, restraining it from interfering in any way with the plaintiff, its agents and employés, in the conduct of its express business over the lines of the railway company.

Defendants demurred generally to the petition, and by special exceptions, and in their answers, attacked the validity of the act of 1887. The general demurrer and all exceptions were overruled.

The case was tried to a jury, and submitted on special issues. Upon the findings of the jury, judgment was rendered in favor of plaintiff against the railway company, for damages, actual and exemplary, in the sum of $45,892.46, with interest, and awarding plaintiff a writ of mandamus against the railway company and a writ of injunction against the express company, as prayed for. On appeal, the judgment of the district court was affirmed, 173 S. W. 222.

The writ of mandamus required the railway company to immediately furnish plaintiff such reasonable facilities and accommodations, for the transportation of plaintiff's agents, servants, merchandise, and other property, and all merchandise and other property to be transported by plaintiff in pursuing an express business as a common carrier, and for the use of the railway company's cars, depots, buildings, and grounds, and for exchange at points of junctions with other roads, as the railway company is now furnishing, or shall hereafter, while the judgment is in force, furnish, to any other express company over its lines, for the same service and the same character of business, between the points within this state only. The decree provides that—

"To more clearly and specifically define the rights and duties existing under this decree covering the transaction of said business by the plaintiff over the lines of the defendant railway company, it is * * * further ordered, adjudged, and decreed by the court as follows."

There follow 15 paragraphs, defining minutely the business relations and the manner of conduct of the business between plaintiff and the railway company, following as closely as possible the provisions in the contract between defendants. It provides that plaintiff, as compensation for the facilities, accommodations, services, rights, and privileges therein specified, shall pay to the railway company 55 per cent. of the gross revenues derived by plaintiff on all business transacted by it over the railway company's lines, the minimum amount to be paid the railway company to be at least equal to the sum of $60,000 per year, and a proportionate sum for the fraction of any year, should any such fraction of year obtain while the decree is in force; prescribes the time and manner of making such payments, and what shall constitute gross receipts. The last section provides that—

The decree "shall be effective and...