Rothschild v. Wabash, St. Louis & Pacific Railway Co.
| Decision Date | 16 May 1887 |
| Citation | 4 S.W. 418,92 Mo. 91 |
| Parties | Rothschild, Appellant, v. The Wabash, St. Louis & Pacific Railway Company et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Affirmed.
Patrick & Frank and C. H. Krum for appellant.
(1) The right to recover the excessive payments made by plaintiff to the defendant is sustained by the decisions; the payments are not considered by the courts as voluntary. Railroad v Steiner, 9 Law & Eq. Rep. 39; Railroad v Railroad, 79 Ill. 121; Hays v. Railroad, 12 F 309, and note; Nicholson v. Railroad, 5 C. B. [N. S.] 366. (2) A shipper is entitled to recover from the carrier the amount paid by him in excess of the rates accorded to others in the discharge of the same service; this was so even at common law. Shipper v. Railroad, 47 Pa. St. 341; McDuffee v. Railroad, 52 N.H. 445; Cambloss v. Railroad, 4 Brewster, 622; Vincent v. Railroad, 49 Ill. 33; Railroad v. People, 56 Ill. 365; Railroad v. Railroad, 57 Me. 194; Sloan v. Railroad, 61 Mo. 24; Pierce on Railroads, 498, and authorities. As to carrier's obligation, in this regard, see generally: Messenger v. Railroad, 36 N. J. Law, 407; Cole v. Goodwin, 19 Wend. 261; Railroad v. Erickson, 91 Ill. 613. And the very recent cases: Railroad v. Railroad, 15 F. 650, and note; McCoy v. Railroad, Am. Law Reg., Nov. 1883, p. 725. By the laws of Missouri, as well as by the articles of consolidation, the Wabash, St. Louis & Pacific Railroad Company is liable for the damage due from the "Wabash," its predecessor. This is also the common law. The Wabash, St. Louis & Pacific Railroad Company succeeds to the rights and privileges of the "Wabash," subject to its liabilities; this is not disputed. (3) Damages to which plaintiff is entitled is the difference between what he was compelled to pay for the transportation of his cattle, and the "eveners" paid for the shipment of their cattle from and to the same points, which was forty-five dollars a car.
Wells H. Blodgett for respondent.
(1) There was a total failure of proof. The petition charges that plaintiff shipped his cattle from East St. Louis to Jersey City at one hundred and thirty dollars per car, and that while he was doing so defendant had an agreement with Eastman, Morris & Allerton to carry their cattle from East St. Louis to Jersey City at a lower rate. There was no proof of a contract between said parties and the defendant. There was no proof of an undertaking on the part of defendant to transport any cattle for plaintiff to Jersey City. It is admitted that the defendant's railroad only extends as far east as Toledo, in the state of Ohio, and, therefore, when it received cattle consigned, or marked, for Jersey City, the presumption is that it only undertook to carry to the end of its own line. Hoagland v. Railroad, 30 Mo. 451; Coates v. Express Co., 45 Mo. 238; Snider v. Express Co., 63 Mo. 376; Myrick v. Railroad, 107 U.S. 102; Whittaker's Smith on Neg. 289, 290. (2) The court sitting as a jury had a right to disregard the whole testimony of the plaintiff because it was in direct conflict with the allegations of the petition, the proofs, the verdict, and the judgment in his former suit against the Toledo, Wabash & Western Railroad Company. Speck v. Riggin, 40 Mo. 404; Warfield v. Lindell, 30 Mo. 272. (3) The verdict and judgment were in accordance with the real law of the case, because it was admitted that the defendant's railroad only extended as far east as Toledo, Ohio, and, therefore, beyond that point it owed the public no duty, and was not bound to undertake the transportation of property except according to the terms of such private contracts as it might, at its own option, enter into or not enter into, but which, when entered into, became, in all their terms, obligatory upon both parties. Wiggins Ferry Co. v. Railroad, 73 Mo. 410; Hutchinson on Carriers, secs. 147, 151, 317; Paradine v. Jane, Aleyn Rep. 26, 27. (4) The verdict and judgment were in accordance with the real law of the case, because even common carriers are only required to carry for a reasonable compensation, there being no rule of the common law requiring common carriers to carry for all at the same price. Story on Bailments [9 Ed.] sec. 508, note 3 on p. 484, and cas. cit.; Railroad v. Gage, 12 Gray, 399; Spofford v. Railroad, 128 Mass. 326; McDuffie v. Railroad, 52 N.H. 430; Johnson v. Railroad, 16 Fla. 623; Harris v. Packwood, 3 Taunton, 272; Railroad v. Sutton, 4 H. L. C. 237; Boxendale v. Railroad, 4 C. B. [N. S.] 78.
This suit was commenced against both the Wabash Railway Company and the Wabash, St. Louis and Pacific Company, but dismissed as to the former. The petition, in substance, states that the defendant is a common carrier; that between August 1, 1877, and January, 1878, he shipped by the defendant's road from East St. Louis to Jersey City, 247 car loads of cattle, and was required to pay the defendant therefor one hundred and thirty dollars per car; that Nelson Morris, Samuel W. Allerton and Timothy Eastman were at the same time shippers of cattle over the defendant's road from the same point to the same point; that by virtue of a secret arrangement the defendant agreed with these three persons to and did ship their cattle at a much cheaper rate; that the amount to be paid by them was dependent upon an accounting, and that they only paid sixty dollars per car load; and because of the unjust discrimination, plaintiff asks judgment for sixteen thousand eight hundred dollars.
On the trial it was stipulated that prior to 1879, the St. Louis, Kansas City and Northern Railway Company was a corporation under the laws of this state, owning and operating a railroad from Kansas City to St. Louis in this state; that from January, 1877, to November, 1879, the Wabash Railway Company was a corporation organized under the laws of the states of Illinois, Indiana and Ohio, and as such owned and operated a railroad from East St. Louis in the state of Illinois through said states to Toledo in the state of Ohio; that on the tenth of November, 1879, these two corporations were consolidated under the name of the Wabash, St. Louis and Pacific Railway Company, the present defendant.
It is alleged in the defendant's answer, and for all the purposes of this case stands admitted, that plaintiff brought a suit against the Toledo, Wabash & Western Railroad Company for damages on the same cause of action stated in this case, and in which suit he had a verdict and judgment for fourteen thousand eight hundred and twenty dollars, which remains unpaid.
This case was tried by the court without a jury. After the evidence was all in, the court, at the request of the plaintiff, gave an instruction, but found the issues for the defendant. That instruction, which was the only one asked or given, is as follows:
"The court declares the law to be that a...
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