State ex rel. Dick & Brothers Quincy Brewery Company v. Quincy, Omaha & Kansas City R. Company
| Decision Date | 24 June 1918 |
| Citation | 204 S.W. 584,199 Mo.App. 668 |
| Parties | STATE ex rel. DICK & BROTHERS QUINCY BREWERY COMPANY, Relator, Appellant, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Adair Circuit Court.--Hon. J. A. Cooley, Judge.
AFFIRMED.
Judgment affirmed.
F. U Kander and Weatherby & Frank for appellant.
J. G Trimble and Campbell & Ellison for respondent.
Relator, a foreign corporation engaged in the manufacture and sale of beer at Quincy, Illinois, brought mandamus to compel the respondent, the Quincy, Omaha & Kansas City Railroad Company, "to receive, accept, transport, carry and deliver beer offered to it over its said line of railroad" from Kansas City, Missouri, to and through the towns of Kirksville and Novinger in Adair county. The alternative writ was issued and respondent filed a demurrer which the court sustained, and from this order the relator has appealed.
The petition for the writ, after alleging the organization of the relator and the existence of respondent as a common carrier with a line of railroad from Kansas City, Missouri, to Novinger and Kirksville in Adair county, with depots and stations to receive and deliver goods carried, set up that "for a long time it had and still has a large number of customers in Adair county and particularly in the cities of Kirksville and Novinger in said county from whom it received orders for its beer and to whom it supplied the same;" that said beer was shipped over respondent's line of railway and said business was very profitable. The petition further alleged that it was the legal duty of respondent, as a common carrier, to receive, carry, transport, and deliver "all beer offered to it" and which is to be delivered at the depots and stations on its line where the same is offered for shipment on orders received by relator and the beer is intended and is for the consignee's own personal and family use.
The petition also discloses that the Prosecuting Attorney of Adair county had warned or notified the respondent not to make deliveries of intoxicating liquor to individuals in Adair county and that pursuant thereto the respondent had issued a general order to its agents not to receive liquor consigned to any person at stations in Adair county except alcohol and whiskey to registered druggists and wine to regularly ordained clergymen or priests for sacramental purposes. The petition further alleged that respondent's refusal to accept "all shipments of beer tendered to it by relator" is undue prejudice to it and by such refusal its business has sustained great loss; and that "in failing to accept, receive, carry, transport and deliver beer offered to it by relator" it has and will continue to suffer great business loss and injury; that the refusal to accept, transport and deliver beer offered to respondent and "its refusal to accept in the future all beer which relator may offer respondent for carriage and delivery on its said line of railroad was and is arbitrary, illegal," etc; wherefore, the writ of mandamus was prayed as above stated.
We have set forth the foregoing substance of the petition in order to show that the sole purpose and end sought is to compel the acceptance, transportation and delivery of all beer offered for transportation and not the specific case of beer mentioned therein. While the petition does allege that a case of beer was presented for shipment, in answer to a written order (on one of defendant's blanks) from one Thomas stating that it was for his own and family use, yet the petition does not seek to compel the acceptance and transportation of that particular shipment but is wholly directed to compelling the acceptance of all beer offered by relator for transportation and delivery over respondent's line. The alternative writ does not direct the respondent to accept and transport the particular case of beer alleged to have been ordered by Thomas but to accept, transport and deliver "all beer offered to you" by said respondent. Nor did the alternative writ follow the prayer of the petition, but commanded the respondent "to receive at Kansas City all beer offered" by relator for transportation and delivery to persons in Adair county "where the beer is upon written orders signed by the consignee and received" by the relator "at Kansas City for the own or family...
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