Red Top Taxicab Co. v. Terminal R. Ass'n of St. Louis

• Decision Date: 29 March 1929
• Citation: 15 S.W.2d 758,322 Mo. 463
• Parties: Red Top Taxicab Company v. Terminal Railroad Association, Appellant
• Court: Missouri Supreme Court

15 S.W.2d 758

322 Mo. 463

Red Top Taxicab Company v. Terminal Railroad Association, Appellant

Supreme Court of Missouri

March 29, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Reversed and remanded (with directions).

T M. Pierce and Samuel H. Liberman for appellant J. L. Howell and R. E. Blodgett of counsel.

(1) The discrimination inhibited by Sec. 23, Art. 12, Mo. Constitution, and Secs. 9975, 9985, R. S. 1919, refers and applies only to facilities in transportation that a railroad company is required by law to provide in its capacity as a common carrier. Canary Taxicab Co. v. Terminal Railroad (Mo.), 294 S.W. 88; Christie v. Railroad, 94 Mo. 453; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. (C. C. A.), 15 F.2d 509; Railroad v. Morristown, 276 U.S. 181; Atchison Co. v. Railroad, 110 U.S. 667; The Express Cases. 117 U.S. 1; Railroad v. Pullman Co., 139 U.S. 79; Donovan v. Pennsylvania Co., 199 U.S. 279; Skaggs v. Term. Ry. Co., 233 F. 827; Old Colony Railroad v. Tripp, 147 Mass. 35; Ry. Co. v. Sheeley, 27 N.Y.S. 185; Oregon Short Line v. Davidson, 33 Utah 370; Railroad Co. v. Baggage Co., 99 Va. 111. (2) A railroad company may confer upon one taxicab company the exclusive right to use a portion of its premises in the solicitation of business. Canary Taxicab Co. v. Term. Railroad (Mo.), 294 S.W. 88; Taxicab Co. v. Taxicab Co. (C. C. A.), 72 L.Ed. 383; Railroad Co. v. Morristown, 276 U.S. 181; Wiggins Ferry Co. v. Railroad, 73 Mo. 389, 128 Mo. 224; Home Tel. Co. v. Sarcoxie Tel. Co., 236 Mo. 144; The Express Cases, 117 U.S. 1; Railroad Co. v. Pullman Co., 139 U.S. 79; Donovan v. Pennsylvania Co., 199 U.S. 279; Depot Carriage Co. v. Term. Ry. Co., 190 F. 212; Skaggs v. Term. Ry. Co., 233 F. 827; Kates v. Baggage Co., 107 Ga. 636; Old Colony Railroad v. Tripp, 137 Mass. 35; Railroad v. Scovill, 71 Conn. 146; Hedding v. Gallagher, 72 N.H. 377; Express Co. v. Whitemore (N. J.), 102 A. 692; State ex rel. Sheets v. Union Depot Co., 71 Ohio St. 379; Baggage Co. v. Portland, 84 Ore. 343; N. Y. Cent. Ry. Co. v. Sheeley, 27 N.Y.S. 185; Railroad v. Bork, 23 R. I. 219; Oregon Short Line v. Davidson, 33 Utah 370; Kenyon Co. v. Oregon Short Line (Utah), 220 P. 382; Rose v. Pub. Serv. Comm., 75 W.Va. 1; Ry. Co. v. Baggage Co., 99 Va. 111. (3) Sec. 23, Art. 12 of the Mo. Constitution, and Secs. 9975, 9985, R. S. 1919, as construed by the trial court, are unconstitutional and void, in that, so construed, they deprive defendant of its property without due process of law and deny the defendant the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution. State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410; Railroad v. Stock Yards Co., 212 U.S. 132; Donovan v. Pennsylvania Co., 199 U.S. 279; Skaggs v. Term. Ry. Co., 233 F. 827; authorities supra. (4) There was no evidence tending to show the damages sustained by plaintiff as the result of the alleged acts of discrimination found by the court. Damages cannot be awarded where they are purely speculative and conjectural. 17 C. J. 755, 758, 759; Warner v. Railway, 178 Mo. 125; Young v. Railroad, 113 Mo.App. 636; Chicago Ry. Co. v. Gelvin, 238 F. 14; W. U. Tel. Co. v. Totten, 141 F. 533.

Levinson, Boisseau & Levinson for respondent.

(1) The court did not err in granting an injunction against the acts and practices of defendant. (a) The grant of exclusive privileges to the Brown Cab Company to solicit business in the Union Station and the use of defendant's employees in aid thereof is a discrimination which is unlawful, unfair and contrary to the Constitution and laws of this State. Mo. Constitution, sec. 23, art. 12; Secs. 9975, 9985, R. S. 1919; Cravens v. Rodgers, 101 Mo. 247; K. C. Term. Ry. Co. v. James, 298 Mo. 508. (b) Defendant's arrangement with the Brown Cab Company, and its practices thereunder in herding passengers into the Brown Cabs, whether they desire those cabs or others, is unfair competition, is in restraint of trade, creates a monopoly, is subversive of public policy and contrary to the common law. Cravens v. Rodgers, 101 Mo. 247; K. C. Term. Ry. Co. v. James, 298 Mo. 497; McConnell v. Pedigo, 92 Ky. 465; Palmer Transfer Co. v. Anderson, 131 Ky. 217; Conn. v. Transfer Co., 181 Ky. 305; Ry. Co. v. Dohn, 153 Ind. 10; State v. Reed, 76 Miss. 211; Ry. Co. v. Langlois, 9 Mont. 419; Bus Co. v. Sootswa, 84 Mich. 194. (2) The court properly awarded plaintiff damages sustained because of the unlawful acts of defendants. The cause of the damage was definite and certain and the amount clearly proven. City of Kennett v. Const. Co., 273 Mo. 279.

OPINION

Gantt, J.

Injunction. Plaintiff seeks to transact a part of its business on the premises of the defendant. The facts are as follows:

Defendant is a common carrier of passengers and baggage in and about St. Louis. As such it owns and operates the Union Station in said city. Under the roof of the station building and adjacent to Market Street, the defendant maintains an open way, known as the concourse, from Market Street to the midway, thereby affording the traveler an exit through the midway and concourse to the street. Other exits are provided. Defendant leased the exclusive use of the concourse to the Brown Cab Company for $ 300 per month. It also granted said company the exclusive privilege of soliciting passengers in the midway, and instructed its ushers to escort or direct passengers arriving at the station and desiring taxicabs to the cab stand of said company in the concourse; and, if said passengers did not want to patronize the Brown Company, to escort them through the concourse to taxicabs immediately outside of the concourse on Market Street. The plaintiff is a competitor of the Brown Company in the taxicab business in St. Louis, and, as such, claims these privileges and practices are unlawful discriminations.

The court found (1) that the defendant could lawfully permit the Brown Taxicab Company to use the concourse to the exclusion of the plaintiff; (2) that the defendant could not lawfully grant to said company the exclusive privilege of soliciting passengers in the midway; (3) that the defendant could not lawfully direct its ushers to escort passengers desiring taxicabs to the cab stand of said company in the concourse; (4) that plaintiff had been damaged by the solicitation for passengers and the directions to the ushers in the sum of $ 3500. An injunction followed restraining such exclusive solicitation of passengers, and restraining the defendant from directing its ushers to escort or direct passengers desiring taxicabs to the cab stand of said company in the concourse. Judgment was rendered accordingly, and both parties appealed.

No question arises on the pleadings. Reference to Canary Taxicab Co. v. Terminal Railroad Association, 316 Mo. 709, 294 S.W. 88, will disclose additional facts and a summary of the pleadings.

Since the trial of the instant case, we have held in the Canary case that the defendant could lawfully grant an exclusive use of the concourse. Therefore, plaintiff appears as respondent here. It insists the other questions were not involved in the Canary case. Defendant insists the principle announced in that case rules all the questions in this case.

Since the decision of the Canary case, the identical question has been twice presented to the Supreme Court of the United States. In Del. Lack. & Western Railroad Co. v. Morristown, 276 U.S. 182, an exclusive right had been granted to a cabman to solicit passengers and park his cabs in a driveway of the plaintiff company. The defendant passed an ordinance declaring that the driveway was a public cab stand, thereby authorizing other cabmen to use the driveway. The court held the ordinance void, and, in the course of the opinion, said:

"As against those not using it for the purpose of transportation petitioner's railroad is private property in every legal sense. The driveway in question is owned and held by petitioner in the same right and stands on the same footing as its other facilities. Its primary purpose is to provide means of ingress and egress for patrons and others having business with the petitioner. But, if any part of the land in the driveway is capable of other use that does not interfere with the discharge of its obligations as a carrier, petitioner, as an incident of its ownership and in order to make profit for itself, has a right to use or permit others to use such land for any lawful purpose. [Donovan v. Pennsylvania Company, supra.]

"There was no duty upon petitioner to accord to other taxicabmen the use of its lands simply because it had granted Welsh the privileges specified in its contract with him. Petitioner is not bound to permit persons having no business with it to enter its trains, stations or grounds to solicit trade or patronage for themselves; they have no right to use its property to carry on their own business. Petitioner had no contract relations with taxicabmen other than Welsh and owed them no duty, because they did not have any business with it. The enforcement of the ordinance here assailed would operate to deprive petitioner of the use of the land in question and hand it over to be used as a public hack stand by the individual defendants and others. As to them, and so far as concerns its use as a public hack stand, the driveway was petitioner's private property and could not be so appropriated in whole or in part except upon the payment of...