State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co.

• Decision Date: 30 November 1912
• Parties: THE STATE ex rel. I. B. KIMBRELL, Prosecuting Attorney, v. PEOPLE'S ICE, STORAGE AND FUEL COMPANY et al., Appellants
• Court: Missouri Supreme Court

151 S.W. 101

246 Mo. 168

THE STATE ex rel. I. B. KIMBRELL, Prosecuting Attorney, v. PEOPLE'S ICE, STORAGE AND FUEL COMPANY et al., Appellants

Supreme Court of Missouri, First Division

November 30, 1912

Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.

Affirmed.

Warner Dean, McLeod & Timmonds, Cowherd, Ingraham, Durham & Morse and Clinton A. Welsh for appellants.

(1) The court committed error in overruling the application of People's Ice, Storage & Fuel Company for change of venue. Corpenny v. Sedalia, 57 Mo. 88; Mix v Kepner, 81 Mo. 93; Dowling v. Allen, 88 Mo 293. The serving of the notice on the prosecuting attorney in open court, and the immediate filing of the application and notice was sufficient. Douglas v. White, 134 Mo. 228. The statute requiring the court to grant change of venue is mandatory. R.S. 1899, sec. 822; Gee v. Railroad, 140 Mo. 314. (2) The findings of the commissioner are still presumed to be correct, notwithstanding their disapproval by the lower court. Henderson's Chancery Practice, 146. Exceptions to his report must be to his findings, and not to the reasons given in support of the findings. The object of referring a case to a commissioner is not to give a party two trials instead of one. The power of the court to rehear the case, after report of the commissioner is undeniable; but that power is not exercised except for good cause; and mere differences of opinion between the commissioner and court as to the weight of the evidence is not such good cause. To review the decision of the commissioner upon a question of fact, would be a rehearing of it upon, in effect, an appeal; and more, it would be allowing the party to come back to the court for the trial of a question voluntarily taken from the court to the commissioner. Such a course is not according to the well settled practice in such cases. Every presumption is in favor of the findings of the commissioner. In Pennsylvania the same degree of weight is given to the findings of the commissioner as to the findings of a chancellor who hears the case in open court. Steinmeyer v. Siebert, 190 Pa. St. 471. In Missouri the same degree of weight is attached to the findings of a commissioner or referee as to a special verdict of a jury. Bogt v. Butler, 105 Mo. 479; Ferry Co. v. Railroad, 73 Mo. 389; Lingenfelder v. Wainwright, 103 Mo. 578. Where a case is referred to a commissioner upon the request or motion of a party (as was done here on motion of the prosecuting attorney over the objections of the defendants) and the findings are against him, such findings are given greater weight than in cases where the reference is not consented to, and are equivalent to the special verdict of a jury, or the findings of the trial court. Davis v. Schwartz, 155 U.S. 651; Kimberly v. Arms, 129 U.S. 512; Furrer v. Ferris, 145 U.S. 132; Brotherton v. Reynolds, 164 Pa. St. 134. And the appellate court will not hesitate to set aside the order of the lower court and sustain the findings of the commissioner if justice seems to require it. Henderson's Equity Practice, 843; Mirkil v. Morgan, 134 Pa. St. 144; McGee v. Johnson, 87 Ill.App. 475; Heard v. Russell, 59 Ga. 25. So the Supreme Court will deal with and treat the findings of commissioner Flournoy just as it would have done if his report had been made to it in the first instance, and his findings will not be disturbed. (3) All ice contracts of People's Ice, Storage & Fuel Company were legitimate. United States v. Am. Naval Stores, 172 F. 455; Standard Oil Case, 173 F. 177; Standard Oil Case, 177 Mo. 378. (4) There was no agreement or understanding to limit the output or to fix the prices of ice. (5) Uniformity of market prices as a suspicious circumstance. The commissioner saw and heard the witnesses who testified touching the matter of uniformity of prices, the reasonableness thereof, and that there was no agreement or understanding, expressed or implied, secret or otherwise, to regulate, control, or fix the same, and he believed they told the truth; and he very properly and judicially recognized that principle of the law which will not impute a bad motive where a good one can as well be assigned. Ames v. Gilmore, 59 Mo. 543; Trust Co. v. Brown, 117 Mo. 412. (6) The market prices of ice in Kansas City were reasonable. (7) The ice market was open to all and competition therein free and untrammeled. (8) People's Ice, Storage & Fuel Company is not an illegal monopoly. U. S. v. Am. Naval Stores, 172 F. 455. (9) The court committed error in depriving defendant of its constitutional right of trial by jury. The weight of authority is in favor of the proposition that, at the common law, an information in the nature of quo warranto was triable by jury. Paine on Elections, sec. 903; Wood, Mandamus & Quo Warranto, p. 234; High on Extraordinary Legal Remedies, secs. 740, 741. (10) To sustain this judgment as to the K. C. Breweries Co., it must appear, from the legal, competent evidence in the record, that in doing the things it did, it was actuated by a purpose and design to violate the law. State v. Tobacco Co., 177 Mo. 1; Robinson v. Dryden, 118 Mo. 534; Thrasher v. Green Co., 105 Mo. 254; Webb v. Darby, 94 Mo. 621; Hayward v. Ins. Co., 52 Mo. 192; Johnston v. Shortridge, 93 Mo. 231. (11) Knowledge to an officer of a corporation. In order to bind a corporation with notice to its agent or knowledge coming to an officer or agent of a corporation it must be shown that the notice or knowledge came to such officer or agent of the corporation within the range of his official duties while transacting business for such company. The Supreme Court of this State has laid down the following rule on this subject: "The law is well settled in this State that knowledge which comes to an officer of a corporation through his private transactions, and beyond the range of his official duties is not notice to the corporation. This is the rule, though the officer obtaining the knowledge was at the time the managing agent of the corporation." Bank v. Froman, 129 Mo. 430; Smoot v. Judd, 148 Mo. 583; Bank v. Thompson, 118 F. 800.

Isaac B. Kimbrell and Clyde Taylor for respondent.

(1) The statute, so far as applicable to the situation here, is as follows: "Any corporation which shall become a party to any understanding with any other corporation or association to regulate or fix the price of any article of manufacture, . . . or to maintain said price when so regulated or fixed, or shall become a member of any combination to fix or limit the amount of any article of manufacture, shall be deemed guilty of a conspiracy to defraud." R.S. 1899, Sec. 8965. (2) "A conspiracy may be proven both by acts and circumstances." State v. Walker, 98 Mo. 104. "A pool may be as conclusively proven by facts and circumstances as by direct written evidence, for in this regard they are like all other frauds." State ex rel. v. Ins. Co., 152 Mo. 41. "A conspiracy may be proven by circumstances and by the acts and declarations of the parties engaged in the common design." 3 Greenleaf on Evidence, sec. 93. "Giving notice of uniform advance in rates on certain dates, always followed by such raise, are such acts and circumstances as certainly tell a strong and conclusive tale of wrongdoing." State ex rel. v. Packing Co., 173 Mo. 385. The old Distributing Company was organized for the avowed purpose of destroying competition. Its contracts were made with that end in view. The new company took up and carried out the unexpired contracts of the old company. The new Storage Company entered into renewal contracts of the same kind, made in pursuance of the original combination by the old Distributing Company with the manufacturing companies. The new company, so far as stockholders, management, purpose of organization and maintenance is concerned, is but the old company with the simple addition of the word "storage" to its name. Everything the old company did, every contract it made, is admissible in evidence against the new company, because the new company entered into the designs of the old company and carried out the purposes of the old company. Harding v. Glucose Co., 182 Ill. 632; McDaniel v. Harvey, 51 Mo.App. 198; Slattery v. Transportation Co., 91 Mo. 217. "Where a number of milk dealers agreed between themselves to organize a corporation and become its stockholders for the purpose of controlling the price and sale of milk to retail dealers, the corporation itself is a trust." Ford v. Association, 155 Ill. 166; Distilling Co. v. People, 156 Ill. 490. (3) The court was not precluded from entering a just judgment upon the facts proven by the report of the commissioner. Heating Co. v. Bissell, 41 Mo.App. 426; Bank v. Miller, 73 Mo. 187; O'Neill v. Coppell, 62 Mo. 202; Bissell v. Warde, 129 Mo. 439; Lingenfeller v. Brewing Co., 103 Mo. 578. (4) If there was a question about the right of a court in a case of this nature to appoint a commissioner to hear and report testimony, appellants are not in position to insist upon that point in this case. The appointment was made at the June term of the court. The report was made at the following term. The judgment of the court was entered at a still later term. No exception was saved to the ruling of the court for the appointment of the commissioner at the June term, 1906. Such was necessary to save their point, if there was any merit in it. Pace v. Roberts, 103 Mo.App. 662; Barber & Co. v. Ullman, 137 Mo. 543; Richardson v. Association, 156 Mo. 407; Reineman v. Larkin, 222 Mo. 156.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C. --

This is a proceeding by information in the nature of quo warranto instituted by the prosecuting attorney of Jackson county, on his own relation and in his official capacity, against the People's Ice, Storage...