Stanley v. Wabash, St. Louis and Pacific Railway Co.
Decision Date | 19 May 1890 |
Citation | 13 S.W. 709,100 Mo. 435 |
Parties | Stanley v. The Wabash, St. Louis and Pacific Railway Company, Appellant |
Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed.
George S. Grover for appellant.
(1) The amended petition changed the cause of action, and should therefore, have been stricken out. R. S. 1879, sec. 3567. (2) The statute relied on for recovery has no extra territorial force, and does not apply to shipments from a point within to a point without the state of Missouri. Sess. Acts, Mo. 1881 p. 83; Gilbreath v. Bunce, 65 Mo. 349; Vawter v Railroad, 84 Mo. 679, and cases cited in brief of appellant; Hyde v. Railroad, 61 Iowa 441; 2 Rorer on Railroads, p. 1149, and cases cited; 3 Wood on Railway Law, sec. 411, p. 1532, and cases cited; Rorer on Inter-State Laws, pp. 149 to 154, and cases cited; Branley v. Railroad, 12 C. B. (N. S.) 63; Merrill v. Railroad, 21 Am. & Eng. R. R. Cases, 48, and cases cited. (3) If, as held by the court below, this statute applies to an interstate shipment, then it is a regulation of commerce, and, as such, is a violation of section 8 of article 1 of the constitution of the United States. Gibbons v. Ogden, 9 Wheaton, 1; Brown v. Maryland, 12 Wheaton, 419; Passenger Cases, 7 Howard, 283; The Daniel Ball, 10 Wallace, 557; Ward v. Maryland, 12 Wallace, 418; State Freight Tax Cases, 15 Wallace, 232; Welton v. Missouri, 91 U.S. 275; Henderson v. New York, 92 U.S. 259; Inman Steamship Co. v. Tinker, 94 U.S. 238; Foster v. New Orleans, 94 U.S. 246; Railroad v. Husem, 95 U.S. 465; Hall v. DeCuir, 95 U.S. 485; P. T. Co. v. Tel. Co., 96 U.S. 1; Lord v. Steamship Co., 102 U.S. 544; Webber v. Virginia, 103 U.S. 351; Tel. Co. v. Texas, 105 U.S. 460; People v. Compagnie Generale, 107 U.S. 59; Moran v. New Orleans, 112 U.S. 69; Head Money Cases, 112 U.S. 580; Mfg. Co. v. Ferguson, 113 U.S. 727; Gilmore v. Railroad, 67 Mo. 323.
Sears & Guthrie for respondent.
-- The second count of the petition is as follows:
This count is based upon the statute entitled "An act to require railroad companies to furnish double-decked cars for the shipment of sheep, and providing a penalty for failing so to do." Approved, March 18, 1881.
A trial by the court without the intervention of a jury resulted in a judgment for plaintiff in the sum of one hundred and five dollars, which caused an appeal by the defendant to the Kansas City court of appeals, from which court the cause was transferred to this court on a jurisdictional ground. Other points are unnecessary to be set forth now, as they will be sufficiently stated in the opinion.
I. The second count of the original petition charged that the contract was made to ship the sheep from La Plata, Missouri, to St. Louis, Missouri; but the amended petition charged the contract was to ship the sheep from La Plata, this state, to East St. Louis, Illinois. And upon this it is claimed that there was a change in plaintiff's cause of action. This point need not be discussed because it appears that the answer of the defendant to the original petition was considered as refiled to the amended petition, and, this being done without objection, cannot be objected to here for the first time. Nor need the action of the trial court as to plaintiff's first count be considered, seeing that it was in favor of the defendant, and the plaintiff does not appeal.
The statutory provisions upon which this action is brought are as follows:
It will not be contended that this statute was to have any extra territorial force, since this would be beyond the power of the legislature of this...
To continue reading
Request your trial-
Logan v. Field
...Pritchard v. Hewitt, 91 Mo. 547, 4 S. W. 437, 60 Am. Rep. 265; St. Louis v. Lanigan, 97 Mo. 175, 10 S. W. 475; Stanley v. Railroad, 100 Mo. 435, 13 S. W. 709, 8 L. R. A. 549; McGuire v. Nugent, 103 Mo. 161, 15 S. W. 551; Green v. St. Louis, 106 Mo. 454, 17 S. W. Notwithstanding the instruct......