Shewalter v. Missouri Pac. Ry. Co.

• Decision Date: 05 December 1899
• Citation: 152 Mo. 544,54 S.W. 224
• Parties: SHEWALTER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

54 S.W. 224

152 Mo. 544

SHEWALTER v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 5, 1899.

APPEAL AND ERROR — SUPREME COURT — JURISDICTION — FEDERAL STATUTES— INTERSTATE COMMERCE LAW.

1. Where instructions in an action against a carrier for conversion of freight contained no reference to the interstate commerce act, or plaintiff's rights thereunder, or any other federal statute, and plaintiff's motion for a new trial did not charge that such instructions were objectionable as a violation of any federal law, or claim that any rights thereunder had been affected, the supreme court has no jurisdiction of a direct appeal from a judgment for defendant, under Const. art. 6, § 12, authorizing such appeals in cases involving the construction or application of federal constitution or statutes.

2. A question that a federal statute has been violated, so as to give the supreme court jurisdiction, must be first raised in the trial court.

In banc. Appeal from circuit court, Lafayette county; Richard Field, Judge.

Action by J. D. Shewalter against the Missouri Pacific Railway Company. Judgment for defendant. Plaintiff appealed to the Kansas City court of appeals, which transferred the case to the supreme court, as involving a constitutional question. Remanded.

This is an action for an alleged conversion of one mare, three colts, and some smaller articles, of the alleged value of $930.80. The controversy arose in this wise: On the 29th of November, 1895, the plaintiff delivered the stock and articles to the Missouri, Kansas & Texas Railway Company at Houston, Tex., and received from that company a contract of affreightment, to transport the same to Sedalia, Mo., and there to be delivered to the defendant company, to be by it transported to Lexington, Mo., and delivered to plaintiff, as consignee. The plaintiff paid the first-named company the charges, amounting to $45.50, which was the legal rate from Houston to Sedalia, and likewise from Houston via Sedalia to Lexington. When the stock arrived at Sedalia the agent of the first-named company delivered the car, belonging to said company, which contained the stock, to the agent of the defendant, and did not give him a copy of the bill of lading, and instead thereof gave him what the witnesses term a "transfer sheet," which showed that the stock had been received by the Missouri, Kansas & Texas Company at Houston, Tex., to be delivered to plaintiff at Lexington, Mo., and recited, "Total freight and charges paid," which is explained to mean that the charges of the Missouri, Kansas & Texas Company had been paid for transportation as far as Sedalia, and did not indicate that the Missouri, Kansas & Texas Company had collected anything for defendant's carriage of the stock from Sedalia to Lexington. The defendant carried the stock to Lexington, where it arrived on the evening of the 3d of December; and, defendant's agent failing to find the plaintiff that evening, the stock remained in the car until the next day. On the morning of the 4th of December, about 9 or 10 o'clock, the plaintiff called for his stock and property. The defendant's agent demanded $12.25, its local rate for freight from Sedalia to Lexington, before he would deliver the stock. The plaintiff refused to pay it, and claimed that he had prepaid all charges at Houston for the carriage of his property to Lexington; but, upon the agent asking to see the contract of affreightment, he did not exhibit it. The agent then offered to deliver the property at once, if plaintiff would agree to pay the charges if, upon investigation, it turned out that they had not been paid; but this the plaintiff refused to do, and gave the agent until 12 o'clock that day to deliver the property, or he would sue for its value. The plaintiff waited until after 4 o'clock, and, the property not having been delivered, he began this action. The petition alleges the delivery to the Missouri, Kansas & Texas Company at Houston; the contract of that company to transport to Sedalia over its road, and "thence over the Missouri Pacific to Lexington, Mo., in a car belonging to the M., K. & T."; the prepayment of the charges from Houston to Lexington: the conversion of the property by the defendant; and its value. The answer is quite lengthy, and sets up in detail the facts above stated, with the addition that on the 5th of December the Missouri, Kansas & Texas Company corrected the transfer sheet so as to show that it had collected from plaintiff the sum of $12.25, to cover defendant's freight charges from Sedalia to Lexington, which it afterwards paid to defendant, and thereupon the defendant offered to deliver the property to plaintiff, free of charge, if he would dismiss his suit, which plaintiff refused to do, and the defendant then placed the stock first in a livery stable, and afterwards in a pasture, from which the mare, the most valuable part of the property, escaped and returned to plaintiff, and was in his possession at the time of the trial. The reply, which is also in detail, sets out plaintiff's account of what took place between him and the agent of the defendant at Lexington, and avers that defendant cannot be heard to plead innocence or ignorance of the contract he made with the Missouri, Kansas & Texas Company, because it was its duty to know, and because it ratified it by afterwards, with full knowledge, accepting $12.25, its charges, from the Missouri, Kansas & Texas Company, which he alleges was an illegal exaction, and further avers that the charges of the defendant, and its refusal to deliver the property until the charges were paid, was "a fraudulent scheme and device of the defendant to evade the interstate commerce law, and the schedule of tariff or freight rates fixed thereunder, for the purpose of charging illegal fees, and was not made honestly or in good faith." The evidence further showed that the whole trouble arose from the act of the agent of the Missouri, Kansas & Texas Company at Sedalia changing the original waybill by striking out Lexington as the final destination, and inserting in lieu thereof Sedalia, and in not disclosing to the defendant the fact that the charges had been prepaid to Lexington, as he should have done. The court submitted the case to the jury on six instructions given for the plaintiff,...