Spurlock v. Missouri Pac. Ry. Co.

• Decision Date: 19 December 1887
• Citation: 6 S.W. 349,93 Mo. 530
• Parties: Spurlock v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

6 S.W. 349

93 Mo. 530

Spurlock v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

December 19, 1887

Appeal from Hickory Circuit Court. -- Hon. Ben. V. Alton, Judge.

Reversed and remanded.

Thos J. Portis for appellant.

(1) Appellant's objection to the introduction of any evidence should have been sustained. The plaintiff had already filed three petitions, and defendant did not waive its right to the objection by having filed its answer. Beardslee v Morgner, 73 Mo. 23; Wait v. Van Allen, 22 N.Y 319; Ward v. Pine, 50 Mo. 39; Lotman v. Barnett, 62 Mo. 159; Fields v. Maloney, 78 Mo. 172. (2) The cause of action stated in the last petition is wholly different from those contained in the other petitions. (3) There are several distinct causes of action blended in the first count. (4) The objections made by defendant to incompetent evidence should have been sustained. (5) The instruction asked by appellant at the close of plaintiff's evidence, to the effect that he was not entitled to recover, should have been given. Beardslee v. Morgner, 73 Mo. 23; Wait v. Van Allen, 22 N.Y. 319; 2 Rorer on Railroads, 1372; Hutchinson on Carriers, 447; Carr v. Railroad, 7 Excheq. 707; Angell on Carriers, sec. 124. (6) The instruction asked by appellant at the close of plaintiff's evidence, to the effect that he was not entitled to recover on the second count, should have been given. 2 Rorer on Railroads, 1372-3; Bend v. Hoyt, 13 Pet. 263; Elliott v. Swarthout, 10 Pet. 137. Plaintiff should not have abandoned his business. He can charge only for such damages as by reasonable endeavor and expense he could not prevent. Waters v. Brown, 44 Mo. 302; Douglass v. Stephens, 18 Mo. 365; 2 Greenl. on Evid., sec. 261; State ex rel. v. Powell, 44 Mo. 437; Fisher v. Goebel, 40 Mo. 479; Thompson v. Shattuck, 2 Met. 615. (7) The instructions given to the jury at the instance of respondent are erroneous.

J. P. Ross for respondent.

(1) The plaintiff had a just cause of action against defendant, first, for discrimination and refusal to receive and carry his railroad ties, and, next, to recover back the money it had extorted from him for the ties it did transport. Story on Bailments [7 Ed.] sec. 508; Angell on Carriers [5 Ed.] secs. 124, 418; New Jersey v. Bank, 6 How. 344; People v. New York, 12 Cent. Law Jour. 108. (2) The plaintiff recovered on reasonably fair pleadings, and, under the statutes, the judgment should not be reversed. R. S., secs. 3546, 3569. (3) Plaintiff's cause of action was the same in all the petitions. (4) The damages assessed are not too remote, but flow from the direct and tortious acts of the defendant.

Ray, J Brace, J., dissents.

OPINION

Ray, J.

This suit was commenced in the Morgan circuit court, and afterwards transferred to that of Hickory county, where the trial was had.

The petition in the cause, on which the case was tried, contains two counts; and was the third amended petition filed in the cause, by leave of the court. The first count is as follows:

"1. The said plaintiff states, that the said defendant is a railroad corporation, duly incorporated and organized under the laws of the state of Missouri, and was in June, 1880, and from that date till now, operating a railroad from St. Louis, Missouri, to Kansas City, or State Line, Missouri, and from Versailles, Morgan county, Missouri, to Tipton, Missouri, where it intersected and connected with their main line, and were, and are yet, operating said roads for the purpose of carrying freight and passengers for hire as common carriers.

"2. That, in the month of May, 1880, the said plaintiff had made and entered into a contract with George W. Sedgwick, of Kansas City, Missouri, to deliver to the said George W. Sedgwick, or his agent, at Kansas City, Missouri, one hundred thousand railroad ties of light weight and size, and for which the said George W. Sedgwick agreed to pay the plaintiff the sum of fifty-five cents per tie in the cars of the defendant, at their depot in Kansas City, Missouri. Plaintiff states that, in pursuance of said contract, he employed hands, and wagons and teams, and purchased tools, and began to cut, make, haul, buy, and ship railroad ties from the depot of the said defendant, in Versailles, Missouri, and had engaged large quantities of tie timber in addition to several hundred acres he owned, and had made numerous contracts for railroad ties, and had incurred great labor and expense in order to comply with his said contract on his part, and was ready and willing to comply with the same if he had not been prevented from so doing by the unlawful acts of defendant, and would have received great advantages and profits from the same, to-wit, the sum of sixteen thousand dollars net profits; said plaintiff further states that when he made and entered into said contract with said Sedgwick, he expected to ship said ties over their line of railroad from Versailles to Kansas City, Missouri, which was the only line he could ship over, and expected, and had a right to expect, that the defendant would receive and ship the ties for a fair and reasonable rate or compensation, and give him fair and reasonable shipping facilities, as required by law and justice.

"3. Plaintiff further states, that in June, 1880, he had got in several carloads of railroad ties at their depot in Versailles, Missouri, to ship to said Sedgwick, and demanded transportation over their said road, and offered to pay said defendant their legal and reasonable charges for carrying said railroad ties to said Sedgwick, at Kansas City, Missouri, which said legal charges would not, in reason and justice, have exceeded sixteen dollars per carload; but said defendant, with the view and intent to prohibit and prevent the said plaintiff from shipping his said one hundred thousand railroad ties to said Sedgwick, at Kansas City, Missouri, and receiving the profits to himself, the said defendant demanded, took, and received of the plaintiff, the sum of forty dollars per carload for shipping his said ties between said points, a distance of one hundred and forty miles only, and would not receive and ship them for less, nor for a reasonable or fair rate when requested so to do.

"4. The said plaintiff says that said charge of forty dollars per carload was exorbitant, extortionate, and unreasonable, and greater than said defendant demands, takes, and receives from others, to-wit, G. P. Clark and others for carrying goods or articles of like class, over like or greater distances of their said road, and said exorbitant charges were made and exacted of the plaintiff to prohibit, and did prohibit, him from shipping his ties over said road, and that defendant might take all the profits on tie contracts and business to themselves or employes at said point of Versailles, Missouri.

"5. The plaintiff says said Sedgwick was perfectly able and willing to pay him for said ties on delivery, and that he, the plaintiff, had prepared himself and would have delivered said one hundred thousand railroad ties at Kansas City, Missouri, to said George W. Sedgwick, and have received sixteen thousand dollars profits on them, and would have made large sums, to-wit, one thousand dollars by cutting his own timber into ties, if it had not been for said wrongful acts of the defendant, in demanding unlawful and unreasonable and extortionate rates of freight, and in refusing and failing to furnish plaintiff with reasonable, proper, and fair shipping facilities, and thereby preventing him from shipping his ties and receiving said profits, wherefore the plaintiff says he is injured and aggrieved and has sustained damages in the sum of twenty thousand dollars, for which he asks judgment."

The second count is as follows:

"And the said plaintiff, for further plea says, that said defendant is a corporation, duly organized and incorporated under the laws of Missouri, and was in June, 1880, operating a railroad from Versailles, Morgan county, Missouri, to Kansas City, or State Line, Missouri, and were receiving and carrying freight for hire as common carriers between said points, and that, in said month of June, 1880, the said plaintiff shipped seven carloads of railroad ties over plaintiff's said road from Versailles, Missouri, to Kansas City, Missouri, a distance of less than one hundred and forty miles, without any special contract as to rates of freight; that a reasonable, fair, just, and legal rate of freight on said railroad ties would have been sixteen dollars per carload, or one hundred and twelve dollars for the seven carloads, when, in truth and fact, said defendant demanded, took, received, and compelled the plaintiff to pay forty dollars per carload, or the sum of two hundred and eighty dollars for carrying said ties, which said charges were unjust, illegal, and extortionate, and exorbitant, and exceeded the legal rates by one hundred and sixty-eight dollars, which amount was wrongfully taken and exacted by defendant from the plaintiff against his will and protest. Wherefore plaintiff says he is injured and aggrieved, and has sustained damages in the sum of one hundred and sixty-eight dollars, for which he asks judgment."

The answer to this amended petition was a general denial. The cause was tried before a jury, who returned the following verdict: "We, the jury, find the issues for Spurlock, plaintiff, on the first count, in the sum of five thousand dollars, and on the second count, in the sum of one hundred and forty-nine dollars." On which there was judgment accordingly, from which the defendant, after unsuccessful motions for new trial, and in arrest, appealed to this court.

The first point here relied on by defendant, for a reversal, is the overruling of its objection, on the trial, to...