Seawell v. The Kansas City, Ft. Scott & Memphis Railroad Company
| Citation | 24 S.W. 1002,119 Mo. 222 |
| Parties | Seawell et al. v. The Kansas City, Ft. Scott & Memphis Railroad Company, Appellant |
| Decision Date | 23 December 1893 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Wallace Pratt and I. P. Dana for appellant.
(1) The transportation of plaintiff's coal was interstate commerce. The Daniel Ball, 10 Wall. 557; Hall v. De Cuir, 95 U.S. 485; Lord v. Steamship Co., 102 U.S. 541; Pacific Steamship Co. v. Commissioners, 18 F. 10; State ex rel. v. Railroad, 40 Minn. 267; S C., 41 N.W. 1047; 24 U. S. Stats. at Large, 379; Cotton Exchange v. Railroad, 2 Int. St. Com. Rep. 289; Mattingly v. Penn. Co., Id. 806. (2) And therefore not subject to regulation by state laws. Railroad v Illinois, 118 U.S. 557; Ferry Co. v Pennsylvania, 114 U.S. 196; Hardy v. Railroad, 18 Am. & Eng. R. R. Cases (Kan.) 432, and note; Welton v. Missouri, 91 U.S. 275. (3) And this was so in spite of the fact that the state legislature had declared such commerce subject to state laws, for such declaration was contrary to the federal constitution, and therefore void. U. S. Const. sec. 8, art. 1. Stanley v. Railroad, 100 Mo. 435. (4) There was no evidence that defendant gave an undue or unreasonable preference to Liberal or Minden over Carbon Center, either by a violation of section 2637 or otherwise. No coal was transported either from Liberal or Minden during the period of plaintiff's shipments from Carbon Center, nor was defendant requested to transport any, and hence defendant neither "charged" or "received" less compensation for the longer than for the shorter haul. Webster's Dictionary; Black's and Bouvier's Law Dicts., title, Charge. 5) The transportation, or the charge therefor, had there been any, from Liberal or Minden, would not have been "under similar circumstances and conditions over the same line in the same direction," as in the case of Carbon Center. Denaby Co. v. Railroad, L. Rep., 10 H. L. 97; Coal Company v. Railroad, 2 Nev. & Mac. 39; Bus. Men's Ass'n v. Railroad, 2 Int. St. Com. Rep. 48; Richardson v. Railroad, Ry. & Can. Tr. Cas. 1; 8 Am. & Eng. Encyclopaedia of Law, 958. (6) The burden of showing the similar circumstances and conditions and the same line and same direction rested of plaintiffs. Paxon v. Railroad, 56 Iowa 427. (7) These statutes (sections 2636 and 2637) are penal statutes, and therefore to be strictly construed in favor of defendant. Rev. Stats. 1889, sections, 2643, 2645. State to use v. Railroad, 19 Mo.App. 104; Fusz v. Spaunhorst, 67 Mo. 256; State v. Bryant, 90 Mo. 534. (8) There was no evidence that plaintiffs sustained any damages in consequence of the alleged preference given Liberal and Minden. This was a fact necessary to be proved before plaintiffs could be entitled to recover. Moreover, the relation of cause and effect between the unlawful act and the damage must have been proven, which plaintiffs failed to do. Harlan v. Railroad, 65 Mo. 22; Powell v. Railroad, 76 Mo. 80; Stepp v. Railroad, 85 Mo. 229. (9) The court erred in the admission of evidence over defendant's objection. Frederick v. Allgaier, 88 Mo. 598; Weil v. Posten, 77 Mo. 284. (10) The instructions given at plaintiff's request were erroneous and improper. Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 598; Wells v. Zalle, 59 Mo. 509. (11) The court erred in refusing each of defendant's instructions 8 to 13 inclusive. (12) The verdict was against the evidence and was against the law as declared in the instructions given by the court. (13) The court erred in fixing the amount of attorney's fee and in allowing the same. Const., art. 2, section 28; Revised Statutes, 1889, sections, 2131, 2133; Briggs v. Railroad, 111 Mo. 168; Railroad v. Crider, 19 S.W. 618.
Gates & Wallace for respondents.
(1) The transportation of plaintiff's coal was not commerce between the states, because a part of the track over which it was carried was in the state of Kansas. The coal was shipped by the plaintiffs from a point in Missouri, to the plaintiffs at another point in Missouri and there was no commerce between any person in Missouri with any person in the state of Kansas. Railroad v. Pennsylvania, 145 U.S. 192; Railroad v. Pennsylvania, 129 Pa. St. 308; Revised Statutes, 1889, section 2656. (2) It requires no argument to prove that the defendant gave an unreasonable preference and advantage to both Liberal and Minden to the disadvantage of Carbon Center; Liberal is twenty-one miles and Minden twenty-six miles further from Kansas City than Carbon Center; and notwithstanding this fact, Carbon Center had the disadvantage of having to pay $ 2 per car more on coal transported to Kansas than did either of the other two places. This discrimination forced all the shippers, except the plaintiffs at Carbon Center, to abandon the business during the time the increased rate was in force. This was evidently giving Liberal and Minden an undue preference over Carbon Center, and the jury, under the evidence, so found. The question of such preference, and whether the circumstances and conditions were the same was submitted to the jury by the instructions of the defendant as well as those of the plaintiffs. Davis v. Brown, 67 Mo. 313; Tetherow v. Railroad, 98 Mo. 74; Keen v. Schnedler, 92 Mo. 516; Reilly v. Railroad, 94 Mo. 600; Noble v. Blount, 77 Mo. 235; Holmes v. Braidwood, 82 Mo. 610; Hazell v. Tipton, 95 Mo. 60; Jennings v. Railroad, 99 Mo. 394; Fairbanks v. Long, 91 Mo. 628. (3) The action of the defendant which is complained of by the plaintiffs is also a violation of section 2637 of the Revised Statutes prohibiting a railroad company from charging a greater compensation for a shorter distance than for a longer distance over the same line in the same direction. The extra charge was admitted by the defendant and whether it was over the same line in the same direction was a question which the defendant's own instructions submitted to the jury. See authorities cited under point 2. (4) That the plaintiffs' instruction did not require, as a condition of recovery, that they should have sustained damages by the unlawful acts of the defendant was an immaterial omission in view of the fact that the damages were patent and obvious, and the proper rule of damages was given to the jury. This omission was supplied by the fifth instruction given for the defendant. These instructions were not contradictory, and when read together contained but one doctrine. Sackett on Instruction [2 Ed.], pp. 23, 24. La Riviere v. La Riviere, 97 Mo. 80; M. Foster Mfg. Co. v. Guggemos, 98 Mo. 391, Bank v. Hatch, 98 Mo. 376; Whalen v. Railroad, 60 Mo. 323; Railroad v. Schoennan, 37 Mo.App. 612; State v. Gregory, 30 Mo.App. 582. (5) As it appears from a decision of this court, published since this case was tried, that the attorney's fee was improperly taxed by the court instead of the jury, the plaintiffs hereby remit this item. Being merely an item of costs taxed after the verdict, it can not affect the verdict and judgment.
OPINION
By article 2, chapter 42 of the Revised Statutes of 1889, it is declared to be unlawful for any common carrier "to make or give any undue or unreasonable preference or advantage to any particular person, company or firm, corporation or locality in the transportation of goods, wares and merchandise of any character, or to subject any particular person, firm, corporation or locality * * * to any undue or unreasonable prejudice or disadvantage with respect to such transportation" (sec. 2636), and "for any such common carrier to charge or receive any greater compensation in the aggregate for the transportation of like kinds of property, under similar circumstances and conditions for a shorter than a longer distance over the same line in the same direction" (sec. 2637), and it is therein further provided that "in case any such common carrier shall do or cause to be done any act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act or thing in this act required to be done, then such common carrier shall be liable to the person or persons injured thereby for three times the amount of the damages sustained in consequence of the violation of the provisions of this act, together with a reasonable attorney's fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case" (sec. 2643).
The defendant is a corporation operating a line of railroad between Kansas City, Missouri, and Memphis, Tennessee, through the states of Missouri, Kansas and Arkansas. The following diagram of a part of its main line and branches, is sufficient to fully illustrate the present controversy:
[SEE DIAGRAM IN ORIGINAL]
The gravamen of the plaintiff's complaint is, that during the months of April, May and part of June, 1890, the defendant company charged the plaintiff $ 2 more for the transportation of each of one hundred and fifty cars of coal shipped to them at Kansas City, Missouri, from Carbon Center, than it charged at the same dates for transporting coal from Liberal and Minden, all being towns in the state of Missouri, on defendant's line of railroad, and the said towns of Liberal and Minden being each at a greater distance from Kansas City than the said town of Carbon Center.
The answer in substance is a general denial and a special plea that any coal carried by defendant from Carbon Center to Kansas City, was transported over a part of its road situated in Missouri, and over a much longer portion in the state of Kansas, and the same was true of all freight carried by defendant from either Minden or Liberal to Kansas City (the distance being specified as to each place)...
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