Spurlock v. Missouri Pac. Ry. Co.

• Decision Date: 10 December 1894
• Citation: 28 S.W. 634,125 Mo. 404
• Parties: SPURLOCK v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

28 S.W. 634

125 Mo. 404

SPURLOCK v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 10, 1894.

EVIDENCE — ADMISSIBILITY — BILL OF EXCEPTIONS — REVIEW ON APPEAL.

1. On the third trial of a cause, the previous pleadings therein are admissible in evidence.

2. Exceptions to the court's amendment of requested charges will not be reviewed when the amendments are not set forth in the bill of exceptions.

Error to circuit court, Hickory county, W. I. Wallace, Judge.

Action by James A. Spurlock against the Missouri Pacific Railway Company to recover statutory damages for overcharges, and also for damages resulting from the fact that plaintiff was prevented by defendant from shipping a certain lot of railroad ties. On the first trial of the cause, plaintiff was successful, but the judgment was reversed, as to his recovery on the above-named second cause of action, on appeal by defendant, 6 S. W. 349. On the second trial a motion by defendant to dismiss the petition, on the ground that plaintiff had so amended it as to change his cause of action from a statutory one to one at common law, was granted, and the order of dismissal reversed on appeal. 16 S. W. 834. A third trial resulted in judgment for defendant, and plaintiff brings error. Affirmed.

This suit was first instituted on the 6th day of January, 1881, in the circuit court of Morgan county, Mo., for a penalty of $1,000, under the statute for overcharges; also, for preventing plaintiff from shipping his railroad ties. It was tried in the Morgan circuit court, and the plaintiff recovered. The defendant obtained a new trial, and took a change of venue to Hickory county circuit court, with leave to plaintiff to file an amended petition. The plaintiff then changed his action from the statutory action for a penalty to a commonlaw action for refusing to receive and ship his ties to Kansas City, Mo., and for charging such high freights, and obstructing their tie yards, so that the plaintiff could not bring his ties in to ship, etc. There was also a count for overcharge on what ties were shipped for plaintiff. The case was tried in the circuit court of Hickory county in November, 1883, and the plaintiff recovered judgment on the first count for $5,000, and on the second count for overcharges for $149.50. The defendant appealed and the supreme court reversed the judgment on the first count, and affirmed it on the second count. 93 Mo. 530, 6 S. W. 349. It was remanded to the Hickory county circuit court, and there the defendant filed a motion to dismiss the suit because the suit had been changed from a statutory action for discrimination to an action for refusing to receive and ship plaintiff's ties. The court sustained the motion. The plaintiff then took the case to the supreme court, and this court reversed the case, and remanded it for further trial. 104 Mo. 658, 16 S. W. 834. The suit was again tried in the circuit court of Hickory county in November, 1893, and the plaintiff, being defeated, brings the case again before this court by writ of error. The...