E. R. Darlington Lumber Co. v. Missouri Pac. Ry. Co.

• Decision Date: 31 May 1912
• Citation: 147 S.W. 1052
• Parties: E. R. DARLINGTON LUMBER CO. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

147 S.W. 1052

E. R. DARLINGTON LUMBER CO. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. CARRIERS (§ 13) — REGULATION OF FREIGHT RATES — LONG AND SHORT HAULS — STATUTES — APPLICABILITY.

Rev. St. 1909, § 3173, prohibiting any carrier from charging for the transportation of freight any larger amount as compensation than is charged for the transportation of similar quantities of the same class of freight over a greater distance on the same road, applies where the long and short hauls are made over the same road, but does not apply where the two hauls are over different lines of road, though the latter road is operated by a corporation officered by officers of the corporation owning the former road.

2. CARRIERS (§ 20) — EVIDENCE (§ 459) — REGULATION OF RATES — COMPLAINTS TO BOARD OF RAILROAD AND WAREHOUSE COMMISSIONERS — PROCEEDINGS — PARTIES.

The statute requiring the Board of Railroad and Warehouse Commissioners to investigate complaints of the reasonableness of rates, including switching charges, and to make its decision of record, and which prescribes penalties for disobedience of orders of the board, is highly penal, and must be strictly construed, and parol evidence to show that a complaint and proceedings before the board in the name of an association was in fact made for and on behalf of a corporation not disclosed by the record as a party or as having any interest in the proceedings is inadmissible.

3. CARRIERS (§ 18) — REGULATION OF RATES — COMPLAINTS TO BOARD OF RAILROAD AND WAREHOUSE COMMISSIONERS — PROCEEDINGS — PARTIES.

A voluntary unincorporated association has no legal authority to make a complaint before the Board of Railroad and Warehouse Commissioners, challenging the reasonableness of switching charges in its own behalf and for the use of a third person, so that the third person may not recover for a violation of an order of the board rendered in such proceedings.

4. TRIAL (§ 136) — DIRECTION OF VERDICT — PRIMA FACIE CASE — REBUTTAL.

The rule that, where plaintiff makes out a prima facie case, it is error for the trial court

to give a peremptory instruction against him, does not apply where the evidence of defendant is in writing or a matter of record, and stands undisputed and completely destroys the prima facie case made, in which case the court may declare the legal effect of the writing or record by declaring as a matter of law that plaintiff may not recover.

5. CARRIERS (§ 18) — ORDERS OF BOARD OF RAILROAD AND WAREHOUSE COMMISSIONERS — VALIDITY.

Where a proceeding before the Board of Railroad and Warehouse Commissioners challenging the reasonableness of switching charges was not legally instituted on the complaint of a party, as provided for by Rev. St. 1909, § 3192, the party in an action for the failure of a carrier to obey the order of the board may not complain of the failure of the court to render judgment fixing reasonable freight charges, as provided by sections 3201 and 3202.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the E. R. Darlington Lumber Company against the Missouri Pacific Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This suit was instituted by the plaintiff against the defendant on account of the latter's failure to obey an alleged order of the Board of Railroad and Warehouse Commissioners to compel the defendant to refund to the plaintiff the sum of $1,030.43, and for treble that sum for the failure of the railroad to pay said sum.

The petition in substance states: That on or about February 16, 1904, the St. Louis Lumbermen's Association (a voluntary association) made complaint against the defendant to the Board of Railroad and Warehouse Commissioners regarding switching charges alleged to have been excessive, made and collected by the defendant and other railroad companies, on lumber consigned by shippers to consignees, the plaintiff included, within the inclosure of the Louisiana Purchase Exposition Company at and near the city of St. Louis. That said complaint was made by the St. Louis Lumbermen's Association at the instigation of and on behalf of the plaintiff, and that the decision of said board, presently to be copied, was made for and on its behalf. That the excessive charges made against the plaintiff were charges of $10 per car, which were made and collected in addition to the regular freight charges made and collected by the defendant on each car of lumber so shipped. That said board found that said $10 charge as a switching fee was "unfair, excessive, unjust, unreasonable, and unlawful." That the road of the Taylor City Belt Railroad Company, which will be more particularly noticed later, was built and owned by the defendant and the St. Louis and San Francisco Railroad Companies, and that it was operated in severalty by each of said companies so that freight delivered to it through either of them was carried over it by that one of them which handled it in St. Louis by means of that particular road's own servants, employés, train crews, as well as by that particular road's engines and cars, or by the engines and cars under its control. That in truth and in fact the Taylor City Belt Line was nothing but a switch constructed and operated in order to enable those two roads to reach the grounds of the World's Fair. That the defendant advertised that it connected with the World's Fair Grounds, and that plaintiff acted and relied upon such representations, and shipped its goods by defendant's line. That said Taylor City Belt Line was managed and controlled by the officers of the Missouri Pacific and the St. Louis & San Francisco Railroad Companies. That the Taylor City Company owned no rolling stock of its own.

The defendant was duly served with notice of said complaint, and was by said board notified of the time and place of hearing the same. The defendant appeared, was represented by counsel, and introduced evidence at the hearing.

The Board of Railroad and Warehouse Commissioners, having heard the testimony produced by the respective parties, as well as arguments by counsel, took the matter of the complaint under advisement, and, after having duly considered it, on the 13th of January rendered the following decision, and duly served copies of it on the respective parties: "State of Missouri, Railroad and Warehouse Department. City of Jefferson, January 13, 1905. In the Matter of the Complaint of the St. Louis Lumbermen's Association against the Missouri Pacific Railway Company, Alleging Excessive and Unreasonable Switching Charges on Shipments of Lumber to the World's Fair Grounds. Formal hearing was held at the Commissioners' St. Louis office, in the Equitable Building. This Commission holds, and its contention is sustained by a written opinion of Attorney General Hadley, that the Taylor City Belt Line is a property owned by the Missouri Pacific Railway Company and the St. Louis & San Francisco Railroad Company, and that said companies should not have made a separate charge in delivering shipments to the World's Fair Grounds for the Taylor City Belt Line; that only one switching charge should be made through and to the grounds, and it is held by this Commission that a reasonable charge for the service performed in switching to the World's Fair Grounds is three ($3.00) dollars; and the Missouri Pacific Railway Company is hereby ordered to make refund to the complainants on the basis of a three-dollar charge for switching to the World's Fair Grounds. By order of the Board of Railroad and Warehouse Commissioners. [Signed] Joe P. Rice, Chairman. [Seal.] Attest: [Signed] T. M. Bradbury, Secretary." The switching charge of $10 a car, which was declared to be unlawful by the Railroad and Warehouse Commissioners, was made and collected from the complainant by the defendant on 147 cars handled by it over its road in the city of St. Louis and the Taylor City Belt Railroad. An itemized list of these cars is contained in complainant's Exhibit B. On or about the 30th of January, 1906, the complainant made demand upon the Missouri Pacific Railway Company that it comply with the order and finding of the Board of Railroad and Warehouse Commissioners, and that it refund to complainant $7 a car on each and every car on which the unlawful switching charge of $10 had been made and collected by the defendant, which was on each of the 147 cars enumerated in Exhibit B, aforesaid. The defendant, the Missouri Pacific Railway Company, failed to obey the finding and order of the Board of Railroad and Warehouse Commissioners, and failed and refused to refund to complainant $7 a car or any part thereof, on all or any of the cars above enumerated. Whereupon plaintiff instituted this proceeding in the circuit court of the city of St. Louis for the purpose of compelling the defendant to comply with the order of the Board of Railroad and Warehouse Commissioners, and to refund to the complainant $7 a car on each and every one of the cars on which the Missouri Pacific Railway Company had collected the switching charge of $10.

The testimony disclosed that the Taylor City Belt Line was about 5,072 feet in length, that it ran in a north and south direction, and intersected the main track of the Missouri Pacific Railway Company on the south, and the southern boundary of the Louisiana Purchase Exposition Company's grounds on the north. The evidence for the plaintiff showed that the free western switching limits in the city of St. Louis was a station on the Missouri Pacific Railway Company's lines known as Cheltenham, that the distance from Cheltenham west to the intersection of the Missouri Pacific Railway Company's line by the Taylor City Belt was about a mile, that the distance from Cheltenham to the Scullin-Gallagher Iron Works was about one mile and a quarter. The testimony developed that the switching charge ordinarily made on shipments of freight to the Scullin-Gallagher...