State v. Ellison

• Citation: 286 Mo. 225,226 S.W. 577
• Decision Date: 13 December 1920
• Docket Number: No. 21994.,21994.
• Parties: STATE ex rel. PABST BREWING CO. OF MILWAUKEE, WIS., v. ELLISON, Judge, et al.
• Court: United States State Supreme Court of Missouri

226 S.W. 577

286 Mo. 225

STATE ex rel. PABST BREWING CO. OF MILWAUKEE, WIS., v. ELLISON, Judge, et al.

No. 21994.

Supreme Court of Missouri, in Banc.

December 13, 1920.

Rehearing Denied December 31, 1920.

Certiorari by the State, on relation of the Pabst Brewing Company of Milwaukee, Wis., against James Ellison and others, Judges of the Kansas City Court of Appeals, to review the record of that court in a suit by the Pabst Brewing Company against the Chicago, Milwaukee & St. Paul Railway Company and another. Record quashed.

This is a certiorari case, in which we are asked to quash the record of the Kansas City Court of Appeals in the suit of the Pabst Brewing Company against the Chicago, Milwaukee & St. Paul Railway Company, hereinafter called the Milwaukee and the Southern Railway Company, hereinafter called the Southern.

The facts revealed by the opinion of the respondents are few and simple.

The Pabst Brewing Company desired to ship 170 half barrels of a beverage called "Pablo" from Milwaukee, Wis., to Globe, Ariz., and for that purpose delivered this shipment to the Milwaukee, as the initial carrier, which, in turn, delivered it to the Southern.

The Brewing Company had long been engaged in brewing beer, and the beverage in question was shipped in half barrels, of a kind commonly used for the shipment of beer. Each half barrel had pasted over the bunghole an internal revenue stamp such as was required by the United States government to be placed upon beer so shipped, and each of these stamps bore printed upon its face the word "Beer."

At the time the Milwaukee received this shipment for transportation it issued to the Brewing Company a bill of lading in the usual form, which specified, among other things, that the Milwaukee had received from the Brewing Company 170 half barrels of Pablo for transportation to Globe, Ariz.; that the contents and conditions of the contents of these half barrels were unknown, and the further statement that the shipment in question was "170 half barrels of Pablo, unfermented, nonalcoholic beverages." The goods in question were duly delivered by the Milwaukee to the Southern, and by the latter carrier were transported to Lordsburg, N. Mex. At that time prohibition obtained in Arizona in its most arid form, and beer and all manner of intoxicants were proscribed by constitutional provision, legislative enactment, and judicial decision. At Lordsburg, which was the last station before reaching Arizona, the Southern opened the car containing this shipment and made an examination of the contents of several of these half barrels. The "chemical experts" employed for that purpose ascertained that the vessels in question contained a liquid which "looked, foamed, and smelled like beer." (As to taste, the record is dark.) Thereupon the Southern declined further to transport these goods, notified the Brewing Company of that fact and of its reason for so refusing, namely, the law aforesaid, and desired to be informed what disposition the Brewing Company would make of the shipment. It was finally agreed, without prejudice as to any legal rights of the parties, that the Southern should empty the contents, which had spoiled by reason of the delay, and return the containers to the Brewing Company, which was done. Thereupon the Brewing Company sued the two railway companies for damages for the loss of the beverages thus destroyed.

At the trial a verdict was rendered in behalf of the defendants. The trial court granted a new trial, and the defendants appealed to the Kansas City Court of Appeals. The latter tribunal remanded the cause, with directions to the trial court to set aside the order granting a new trial and to enter judgment upon the verdict for the defendants.

I. J. Ringolsky, M. L. Friedman, Ringolsky & Friedman, and William G. Boatright, all of Kansas City, for relator.

Watson, Gage & Ess and Fred S. Hudson, all of Kansas City, for respondents.

WILLIAMSON, J.

(after stating the facts as above). Relator contends that the decision of the Kansas City Court of Appeals is in conflict with various controlling decisions of this court upon the ground that the facts stated made out a prima facie case in behalf of relator, which it was entitled to have submitted to a jury, whereas, respondents in their opinion hold that the trial court should peremptorily have instructed the jury to find for defendants.

Pertinent portions of the Court of Appeals' opinion are as follows:

"We recognize that in all instances involving the Constitution of a state, as it relates to the domestic policy of such state, we should follow the construction given to that instrument by the courts of that state.

"On that basis there is a question in the case which may be divided into two parts.: First, whether the liquid called `Pablo' was beer without regard to whether it contained alcohol in intoxicating quantities; and, second, if it was not beer, was it so shipped by plaintiff as to deceive the defendant, Souhern Pacific Railway Company into the belief that it was beer, and thereby justify such company in refusing to take it into the state of Arizona.

"As to the first, plaintiff insists that the evidence showed the liquid called `Pablo' is an unfermented, nonintoxicating, carbonated beverage, manufactured by an entirely different process from that used in making beer. That to make beer it must go through fermentation and be made...