Monarch Vinegar Works v. Chicago, Burlington & Quincy Railroad Co.
| Decision Date | 20 December 1920 |
| Citation | 226 S.W. 546,285 Mo. 537 |
| Parties | MONARCH VINEGAR WORKS v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.
Affirmed.
H. J Nelson and Warner, Dean, McLeod & Langworthy for appellant O. M. Spencer of counsel.
(1) Judgment should have been entered for the defendant, for the reason that under the pleadings and the evidence the plaintiff was not entitled to recover upon the alleged cause of action sued on. The plaintiff in its petition alleges the pendency of the proceedings to test the validity of the Maximum Freight Rate Laws, at the time of the shipments in question, and then asks for judgment for three times the amount of the alleged overcharge pursuant to the penal provisions of Sec. 3248, R. S. 1909. It is settled that there can be no recovery for such penalties. White v Delano, 270 Mo. 33. (2) Plaintiff was allowed to recover, however, the actual difference between the old rate and the new rate, that is, it was allowed to recover on a different cause of action than that sued on. Its right to do so was challenged at all times. Plaintiff has no cause of action for penalties, although that is the ground upon which it sued. White v. Delano, 270 Mo. 33. In that case the court explicitly held that the penal section of the rate statute was suspended, but that the rate statute was not suspended. The court did not define the ground upon which recovery was permitted, but it was presumably upon common law principles. (3) That the plaintiff construes its suit to be one to recover under the penal section of the State statute and not otherwise, is apparent from the body of the petition, wherein it sets up facts in an effort to show that the three year limitation statute which applies to penalties was stayed. This is also apparent from the prayer to the petition, the evidence introduced, and the opinion of the referee. The prayer of the petition is an index to the construction placed upon the petition by the pleader. State ex inf. Barker v. Ry. Co., 265 Mo. 678. (4) Since plaintiff sued to recover penalties under the statute, it should not have been permitted to recover at common law, because that was a different cause of action from that upon which it sued. Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Assn., 61 Mo. 489; Huston v. Ale Works, 56 Mo. 416; Robinson v. Rice, 20 Mo. 229; Chitty v. Railroad, 148 Mo. 64; Ranning v. Met. St. Ry. Co., 157 Mo. 477; Harrison v. Railroad, 37 Mo. 307; Cole v. Armour, 154 Mo. 333; Hite v. Raliroad, 130 Mo. 132; 21 R. C. L. p. 608, sec. 152. Error is presumptively prejudicial. Dayharsh v. Ry. Co., 103 Mo. 578; Hatch v. Bayless, 164 Mo.App. 223; Contracting Co. v. Storage Co., 186 Mo.App. 671; Morton v. Heidorn, 135 Mo. 618. (5) The court committed error in refusing to permit defendant to introduce evidence to show that the rate prescribed by the Maximum Freight Rate Law 1907, was confiscatory, and offered proof in support of were made in 1911. The defendant pleaded that the rate provided by the Maximum Freight Rate Law of 1907, was confiscatory, and offered proof in support of the plea. The question as to the reasonableness of the rate in 1911, was not adjudicated in the Missouri Rate Case, 230 U.S. 474, because the final decree in that case, which was entered in April, 1909, dealt with the situation prior to that time, and the shipments in question were all made in 1911. Defendant has the right to challenge the validity of the rate in a suit between a single shipper and the carrier. State of Missouri v. C. B. & Q. Railroad, 241 U.S. 538. The Missouri Rate Case did not deal with the question as to the validity of the rate under conditions as they existed almost three years after the entry of the final decree. Missouri v. C. B. & Q. Railroad, 241 U.S. 539. (6) A denial of the right to investigate the validity of the rate in 1911, which was long after the period with which the decree dealt in the Missouri Rate Case, and permitting the plaintiff to recover the difference between the old rate and the new rate, would constitute the taking of property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418. The record in the case of Missouri v. Chicago, Burlington & Quincy Railroad Co., 241 U.S. 536, shows that the Supreme Court did not pass and could not have passed upon the question involved in this case. Furthermore, the decree in the Missouri Rate Case did not and could not have prevented the defendant from showing the unreasonableness of the rate as applied to a particular shipper or a particular commodity. Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 39 S.Ct. 237, 243; Northern Pacific Ry. Co. v. North Dakota, 236 U.S. 585. (7) There was obviously very substantial merit in the defendant's contention that the rate on apples was confiscatory in 1911. State ex rel. v. Public Service Comm., 270 Mo. 565; 19 New International Encyclopaedia, p. 574; State ex rel. v. Public Service Comm., 270 Mo. 555.
McCune, Caldwell & Downing for respondent.
(1) The judgment was consistent with the case and within the issues found by the pleadings. White v. Delano, 270 Mo. 16; Sec. 2100, R. S. 1909; Hewitt v. Harvey, 46 Mo. 368; O'Bannon v. Railroad 111 Mo.App. 202; Conley v. C. B. & Q. and Wabash Rys., 192 Mo.App. 534; M. K. & T. v. Wulf, 226 U.S. 570, 57 L.Ed. 355; Liese v. Meyer, 143 Mo. 547; Saline County v. Sappington, 64 Mo. 72; Sharkey v. McDermott, 91 Mo. 657; Northcraft v. Martin, 28 Mo. 471; Iba v. Railway, 45 Mo. 469; McGrew v. Mo. Pac. Ry., 87 Mo.App. 250; Calvert v. Railroad, 34 Mo. 243; State ex rel. v. Sale, 153 Mo.App. 282; Plynell v. Meadows, 170 Mo.App. 37; State ex rel. v. Chicago & Alton Ry., 265 Mo. 646; Hartwig v. Ins. Co., 167 Mo.App. 128. (2) The decision in the Missouri Rate Case, 230 U.S. 474, to which appellant was a party, is res adjudicata that the Maximum Freight Rate Laws of 1907 were not confiscatory as to all shipments made in 1911, and the court properly refused to relitigate that matter. Missouri Rate Cases, 230 U.S. 474, 57 L.Ed. 1571; State of Missouri v. C. B. & Q. Ry., 241 U.S. 533, 60 L.Ed. 1143; Milling Co. v. Southwestern Ry., 39 S.Ct. 237, 63 L.Ed. 517; 1 Ry. Co. v. McKnight, 244 U.S. 368, 61 L.Ed. 1200; Knoxville v. Knoxville Water Co., 212 U.S. 1, 53 L.Ed. 371; Darnell v. Edwards, 244 U.S. 564, 61 L.Ed. 1317; In re Louisville, 231 U.S. 639, 58 L.Ed. 413; Williams v. Hayti, 184 S.W. 470; Ex parte Young, 209 U.S. 123, 52 L.Ed. 714; In re Englehard & Sons Co., 231 U.S. 646, 58 L.Ed. 416; Railway v. Gill, 156 U.S. 649, 39 L.Ed. 567; Railway v. Minnesota, 134 U.S. 418, 33 L.Ed. 970; Railway Co. v. Railroad Commission of Alabama, 161 F. 972. (3) Defendant railroad elected to test, once and for all, the validity of all the rates in one proceeding by the remedy of injunction and is bound by the result of that election. Authorities above. (4) Defendant railroad, by the proceedings it instituted to enjoin the enforcement of each and every statutory rate, is estopped to deny that their validity was adjudicated. Same authorities.
OPINION
In Banc
This action was begun to recover freight overcharges alleged to have been exacted by appellant on various shipments of apples in October and November, 1911. The petition contains thirty-nine counts. These are alike except as to date, place and amount, and the questions presented under the several counts are identical. The cause was referred, judgment recommended and entered for the several overcharges alleged to have been exacted, and this appeal was duly perfected therefrom.
The contentions of appellant are (1) that the action was for the penalty under Section 3248, Revised Statutes 1909, and that since no judgment for the penalty was warranted the judgment should have been for defendant; and (2) that the court erred in refusing to permit appellant to introduce evidence to show that the rate prescribed by the Maximum Freight Rate Law of 1907 was confiscatory at the time the shipments were made in 1911.
I. Each count of the petition alleges the date, place of origin, destination and weight of the shipment forming the basis of the count and also alleges the maximum of freight permitted to be charged by the terms of the statute (Acts of 1907), sets forth the freight actually exacted by appellant and points out the difference between the two rates. It is further alleged that appellant, in 1907, obtained an order in the Federal court enjoining the Railroad Commission, the Attorney General and three representative shippers from putting in force the maximum rates under the Act of 1907; and that this injunction remained in force until February 6, 1914, at which time the injunction was dissolved; and that appellant refused and still refuses to pay to respondent the excess over the legal rate.
The prayer in each count is for judgment for the difference between the statutory maximum rate and the sum exacted by appellant and "that the same be trebled as provided by Section 3248, Revised Statutes 1909," and for interest and costs and other proper relief.
It is argued that the action is under the penalty section of the statute; that the section superseded the common law remedy that the pendency of the injunction in the rate cases in the Federal court superseded the penalty section as a whole and that respondent neither stated nor had any cause of action. In White v. Delano, 270 Mo. 16, 191 S.W. 1012, substantially the same contentions made in this case were considered. It was held in that case that the penalties under Section 3248, supra, were superseded,...
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