Sonken-Galamba Corp. v. Mo. Pac. R.R. Co.

• Decision Date: 15 June 1931
• Docket Number: No. 17210.,17210.
• Citation: 40 S.W.2d 524
• Parties: SONKEN-GALAMBA CORPORATION, APPELLANT, v. MISSOURI PACIFIC RAILROAD CO., RESPONDENT.
• Court: Missouri Court of Appeals

40 S.W.2d 524

SONKEN-GALAMBA CORPORATION, APPELLANT, v. MISSOURI PACIFIC RAILROAD CO., RESPONDENT.

No. 17210.

Kansas City Court of Appeals. Missouri.

June 15, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Clarence A. Burney, Judge.

AFFIRMED.

John I. Williamson, Bernard L. Glover, Byron M. Gray and Ayres H. Blocher for appellant.

Richard H. Beeson and Hackney & Welch for respondent.

BOYER, C.

This is an action to recover damages in the nature of reparation for freight charges demanded and paid and said to be excessive. Defendant demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained. Plaintiff refused to plead further, suffered judgment of dismissal, and duly appealed.

Suit was filed March 15, 1930. The record before us shows that the petition contained thirty-seven counts identical in nature except for dates, amounts, car numbers, weights, and points of origin and destination. All of the shipments were intrastate and from one place to another within the environs of Kansas City, Missouri.

The petition alleges the corporate character of plaintiff as well as that of defendant and that defendant was engaged in the business of "a common carrier and operating as a switching railroad within, to, from and through the corporate limits of the city of Kansas City, Jackson county, Missouri. The remainder of the first count of the petition is the following:

"Plaintiff for its first count against the defendant states that on or about the 5th day of October, 1925, it caused to be shipped 34,000 pounds of scrap iron in car number 74011 initial MP from the plant and place of business of Noll-Welty Company located on defendant's line in Kansas City, Jackson county, Missouri, to the plant and place of business of the Kansas City Bolt and Nut Company, located on defendant's line in Kansas City, Jackson county, Missouri, said shipment being handled entirely by said defendant.

"Plaintiff states that on or about October 13, 1925, it was compelled to pay to defendant as freight charges for transporting said shipment the sum of Ten Dollars, said freight charges being unjust, unreasonable and excessive in violation of the provisions of sections 9980 and 9988 of the Revised Statutes of Missouri of 1919; that just and reasonable freight charges for transporting said shipment were and would have been four and 95/100 dollars whereby plaintiff has been damaged in the sum of five and 05/100 dollars, which defendant ought to return to plaintiff.

"Wherefore plaintiff prays for judgment against the defendant on this count for five and 05/100 dollars, interest thereon at six per cent per annum from October 13, 1925, plus reasonable attorneys' fees, together with costs of this action."

At the conclusion of the petition is a general prayer for judgment on all counts in a stated sum together with interest and attorneys' fees and for an additional sum as treble damages. The judgment does not recite any reason for the ruling of the court, but merely recites that the demurrer is sustained, to which action plaintiff excepts; that plaintiff is given time to plead; that it refuses to plead further, and it is ordered that the cause be dismissed.

Section 9980, Revised Statutes 1919, among other things, declares railways to be public highways and all persons operating them to be common carriers, and proceeds: "All charges made for any service rendered in the transportation of freight on such railways ... shall be reasonable and just; and all unreasonable and unjust charges for such service are prohibited and declared unlawful." Section 9988, Revised Statutes 1919, provides in part: "Every such common carrier shall print and keep for public inspection schedules showing the rates for freight which such carrier has established and which are in force at the time upon the railroad or railroads operated by it as defined in section 9980. Said rates shall be reasonable and just, and shall not in any case exceed the maximum rates which are or which may hereafter be established by law." Said section also provides that said schedules shall be filed with the "railroad commissioners." Both sections above quoted are retained from previous revisions and had their origin in "An Act to regulate railroad corporations" in Laws of 1887, Extra Session, page 20.

Section 9991, Revised Statutes 1919, now section 4802, Revised Statutes 1929, on which plaintiff relies for a statutory remedy on account of its alleged damages is in these words: "Any person or persons claiming to be damaged by any common carrier by reason of any violation of the provisions of sections 9980 to 9994 inclusive, may bring suit therefor in any circuit court of any county or city into or through which the line operated by such common carrier enters or passes, and such person or persons may make complaint as hereinafter provided to the railroad commissioners. And if any proceeding is commenced under the provisions of said sections, either in a court or before the said railroad commissioners, the tribunal before which such proceeding shall be pending may compel any director, officer, receiver, trustee, agent or employee of the common carrier complained of in such suit to attend as a witness and testify in such proceeding, and may also compel the production of the necessary books, papers and documents of such common carriers. [R.S. 1909, sec. 3192.]"

This section is likewise carried forward from Laws of 1887. which accounts for the reference made to "railroad commissioners."

Does the petition state any cause of action within the jurisdiction of the circuit court? The question to be determined is thus briefly stated and gathered from the rather extensive briefs of the contending parties. To summarize the contention of the parties here, it is appellant's contention that it is unlawful to charge unjust rates and that a person required to pay same is permitted to bring his suit in the circuit court for the damage thus sustained; that the Constitution of Missouri, section 10, article II, provides that the courts shall be open to every person and certain remedies afforded for every injury; that section 4802, Revised Statutes 1929, specifically provides that the circuit court has jurisdiction of this case; that the Public Service Commission has no power to hear or to grant a claim for reparation for an unjust charge already paid, and that its power is limited to fix rates for future application and to "determine the just and reasonable rates, fares and charges to be thereafter observed."

Respondent contends that sections 9980 and 9988, Revised Statutes 1919, now sections 4791 and 4799, Revised Statutes 1929, have been repealed by the enactment of the Public Service Commission Law of 1913, and "swept into the discard" by decisions of the Supreme Court; and that since the passage of said Act of 1913, the circuit court has no authority whatever to deal with either past or future rates nor to entertain suits based on the claim of an unreasonable rate which had not been declared to be such by the Public Service Commission, unless the petition allege the exaction and collection of a rate contrary to the published tariffs or the wrongful exaction of a rate previously determined by the Public Service Commission to be unreasonable.

Appellant insists that the case of State ex rel. Railroad v. Public Service Commission, 303 Mo. 212, 259 S.W. 445, is applicable and controlling; and respondent contends that the ruling in the case of McGrew Coal Co. v. Mellon, 315 Mo. 798, 287 S.W. 450, is conclusive in support of its position. These cases will be referred to later.

In the first place we observe that the declarations of sections 9980 and 9988, Revised Statutes 1919, in reference to just rates, are in substance contained in section 27 of the Public Service Commission Act, Laws 1913, page 570, now section 5147, Revised Statutes 1929. The last named section contains this language:

"All charges made or demanded by any such corporation, person or common carrier ... shall be just and reasonable and not more than allowed by law or by order or decision of the commission and made as authorized by this chapter. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers or property or in connection therewith or in excess of that allowed by law or by order or decision of the commission is prohibited."

It is therefore observed that the substance of sections 9980 and 9988, Revised Statutes 1919, were not swept aside by the Public Service Commission Law of 1913, but were retained therein.

Section 5149, Revised Statutes 1929, provides in part: "Every common carrier shall file with the commission and shall print and keep open to public inspection schedules showing the rates, fares and charges for the transportation of passengers and property within this State between each point upon its route and all other points thereon."

It is further provided that the form of such schedule shall be prescribed by the commission and shall conform, in the case of railroad corporations, as nearly as may be to the form of schedule required by the Interstate Commerce Commission, and that the commission shall have power from time to time in its discretion to determine and prescribe by order such changes in the form of such schedule as may be found expedient.

Section 5151, Revised Statutes 1929, provides that no change shall be made in any rate which shall have been filed and published except upon the conditions therein provided. Section 5155, Revised Statutes 1929, provides that no common carrier shall engage in the transportation of property until its schedules of rates shall have been filed and published, and further provides:

"No common carrier shall charge, demand, collect or receive a greater or less or different compensation for transportation of passengers or property or for any...