Steel v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 07 May 1912
• Citation: 147 S.W. 217,165 Mo.App. 311
• Parties: DAVIDSON STEEL, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

147 S.W. 217

165 Mo.App. 311

DAVIDSON STEEL, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 7, 1912

Appeal from Mississippi Circuit Court.--Hon. H. C. Riley, Judge.

REVERSED.

Judgment reversed.

Robert A. Anthony for appellant.

(1) This action cannot be maintained because it is a penal action based upon certain statutes of the state of Missouri; and because the petition on its face discloses that the shipment complained of was an interstate shipment, that is to say a shipment of a carload of hay from Rodney in the state of Missouri, to Memphis in the state of Tennessee. Laws 1887 page 15; R. S. 1899, sec. 1134; R. S. 1899, sec. 1140; R. S 1899, sec. 1153; Seawell v. Railroad, 119 Mo. 222; Hanley v. Railroad, 187 U.S. 617; Railroad v Pennsylvania, 145 U.S. 192; Railroad v. Illinois, 118 U.S. 557; Railroad v. Allen, 181 F. 710; Railroad v. Hadley, 168 F. 340. (2) Action of the kind described in plaintiff's petition are governed by the Interstate Commerce Law, and either the Interstate Commerce Commission or federal district courts have jurisdiction. See in this connection the Act of Congress approved February 4, 1887. 24 U. S. Statutes at large, chap. 104, page 379; see, also, amendments to said Act of June 29, 1906, April 13, 1908 and March 2, 1889.

J. M. Haw for respondent.

(1) As to the first reason assigned, it is sufficient to say that there was no attempt to recover treble damages. A contract and the breach thereof by appellant were shown, the damages to which respondent was entitled therefor ascertained and judgment rendered accordingly by the court below. Having been tried on this theory by the trial court the case will be reviewed on the same theory by the appellate court. Railroad v. Sloop, 200 Mo. 198; Walker v. Owen, 79 Mo. 568; Richardson v. Palmer, 36 Mo.App. 88; Fell v. Mining Co., 23 Mo.App. 216. (2) The court did not err in holding that it has jurisdiction of the cause, as is alleged in appellant's fifth assignment. There was no showing by appellant that the overcharges sued for grew out of an excess of rates over and above the rates fixed by schedule filed, published and posted as required by the federal act, and the circuit court had jurisdiction to try the cause on the contract. Railroad v. Sloop, 200 Mo. 198. Shippers are not affected by the Interstate Commerce Act until the required publication of its rates has been made, and to bring them within its operation in a given case, the burden is upon the carrier to show compliance with that condition precedent. Ralroad v. Sloop, 200 Mo. 198. (3) The appellant had authority to make such a contract as was recovered on, and it was binding. Railroad v. Sloop, 200 Mo. 198. The testimony shows an oral contract, made by respondent with the company through its station agent. A station agent has authority to make a contract for a railroad company. Harrison v. Railroad, 74 Mo. 364; Fountain v. Railroad, 114 Mo.App. 676; Wilson & Aull v. Railroad, 66 Mo.App. 388. (4) The testimony relates wholly to an oral contract and shows how and with whom it was made. But even if there had been a written contract the error (if made) does not affect the substantial rights of appellant and the judgment should not be reversed or affected thereby. Revised Statutes 1909, section 1850. It is the purpose of the law to get at the rights of the parties, and with that end in view the Legislature has provided and the courts have held that where the judgment is for the right party it should be affirmed, even when errors are committed by the trial court. Revised Statutes 1909, sections 1850, 2119; Railroad v. Sloop, 200 Mo. 198; Bragg v. Railroad, 192 Mo. 331. With this same view to substantial justice between the parties the pleadings are to be liberally construed. Revised Statutes 1909, section 1831; see, also, section 2119.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

This is a suit for the statutory penalty of treble damages levied against common carriers for wrongful discrimination in freight rates. Plaintiff recovered actual damages only, however, as for a breach of contract, and defendant prosecutes the appeal.

It is averred in the petition that plaintiff is a shipper of hay, residing at Rodney, in Mississippi county, Missouri, and that defendant owns and operates a railroad as a common carrier of goods between that point and Memphis, Tennessee. The petition then proceeds to declare upon the statutes of Missouri (sections 3184 and 3191, Revised Statutes 1909) for the penalty or triple damages, alleged to have accrued to plaintiff on account of defendant's unlawful discrimination against him, through its giving a preference or advantage to others engaged in shipping hay from that locality to Memphis, Tennessee.

Plaintiff avers that in July, 1909, he sold 54,720 pounds of baled hay to John Wade & Son, to be delivered in Memphis, Tennessee, and shipped the same over defendant's road to the purchaser at Memphis, for which shipment he was required to pay defendant, as freight thereon, twenty-two cents per hundred pounds, amounting in all to $ 120.39. It is averred, too, that notwithstanding defendant was prohibited by the statutes above referred to from discriminating against plaintiff and from an unreasonable discrimination against the said locality of Rodney in favor of other localities in the matter of rates charged for transportation of such product, it at the same time transported like baled hay to Memphis, Tennessee, from the same locality from the O. F. Goodin Grain Company at eleven cents per hundred pounds, etc.; that because of such preference so accorded to the O. F. Goodin Grain Company in the matter of freight rates on hay between Rodney, Missouri, and Memphis, Tennessee, it was impossible for plaintiff to compete with the said O. F. Goodin Grain Company and others shipping therefrom, etc. Because of such unlawful discrimination against plaintiff and preference accorded to the O. F. Goodin Grain Company with respect to such shipment, plaintiff prays actual damages in the sum of sixty dollars and twenty cents, the amount he was charged in excess of the rate given to his competitor, and that, when such damages shall have been ascertained, the court render judgment against defendant for three times the amount of damages so ascertained, as provided by section 3191, Revised Statutes 1909, etc.

To this petition defendant demurred, on the grounds that, conceding the facts stated to be true, plaintiff was not entitled to recover, because it appeared therefrom the shipment was interstate and, therefore, not within the purview of the Missouri statutes, but this demurrer the court overruled. Upon the overruling of the demurrer, defendant filed its answer and pleaded that the shipment of hay involved and the discrimination and preference declared upon with respect thereto related to interstate commerce and, therefore, plaintiff was not entitled to recover the penalties sued for under the statutes of the state. To this answer plaintiff interposed a reply, in which he set up and averred that defendant, through its station agent at Rodney, agreed to transport his shipment of hay from that point to Memphis, Tennessee, at the same rate accorded to the O. F. Goodin Grain Company; that is, eleven cents per hundred weight, but, after the shipment was made, violated and breached its said contract by exacting from him twenty-two cents per hundredweight instead. Because of this alleged breach of the contract pertaining to the freight charge, he prayed a recovery of sixty dollars and twenty cents as his actual damages, being the amount overcharged by defendant according to his theory of the contract.

Though defendant strenuously objected throughout and excepted thereto, plaintiff introduced evidence tending to prove both the discrimination and preference set forth in the petition and the fact that defendant, through its freight agent agreed to transport the shipment of hay at eleven cents per hundredweight but exacted twenty-two cents per hundredweight therefor before surrendering the freight. The court seems to have disregarded the cause of action declared upon in the petition, that is for the penalty of treble damages provided in section 3191, which may be recovered of common carriers guilty of undue discriminations and preferences stipulated in section 3184, and found the issue for plaintiff as for a breach of the contract, for it allowed him actual damages only, in accordance with the prayer of his replication. In other words, the court, notwithstanding the objections and exceptions of defendant, departed entirely from the cause of action declared upon in the petition and found the issue tendered in plaintiff's reply for him, to the effect that defendant had breached its...