Strother v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 09 April 1918
• Docket Number: No. 18830.,18830.
• Citation: 274 Mo. 272,203 S.W. 207
• Court: Missouri Supreme Court
• Parties: STROTHER v. ATCHISON, T. & S. F. RY. CO.

203 S.W. 207

274 Mo. 272

STROTHER v. ATCHISON, T. & S. F. RY. CO.

No. 18830.

Supreme Court of Missouri, Division No. 2.

April 9, 1918

Rehearing Denied April 26, 1918.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by John Strother against the Atchison, Topeka & Santa Fe Railway Company. From a judgment for plaintiff, defendant appeals. Case ordered transferred to the Kansas City Court of Appeals.

Thomas R. Morrow, George J. Mersereau, John H. Lathrop, and J. D. M. Hamilton, all of Kansas City, for appellant. Beardsley & Beardsley, of Kansas City, for respondent.

WHITE, C.

The plaintiff recovered judgment in the sum of $1,600 for the loss of his stallion which died while being shipped over the defendant's railroad, and the defendant appealed. The respondent challenges the jurisdiction of this court, and jurisdiction can be retained only if a constitutional question was properly and timely raised by the defendant in the trial court.

Plaintiff alleges that on the 1st day of March, 1912, he delivered to the defendant a stallion of which he was the owner, to be carried by the defendant from Abilene, Kan. to Kiowa, Kan.

The cause of action is based on sections 7116 and 7117 of the General Statutes of Kansas for 1909, and those sections are set out verbatim in the petition. Section 7116 provides that all common carriers shall transport live stock received for transportation without delay at a rate of speed not less than an average of 15 miles an hour, unless prevented by unavoidable accident. Section 7117 provides that if the carrier refuses or fails to transport live stock at a rate of not less than 15 miles an hour it shall be liable for all damages sustained by any person on that account, and all other damages which are the approximate result of such failure, together with the cost of a suit if one is brought, and a reasonable attorney fee fixed by the court.

The petition then alleges that the defendant, in the shipment of said stallion, failed to comply with the provisions of said sections 7116 and 7117 of the General Statutes of Kansas, and such failure was not due to unavoidable accident; that because of the unreasonable length of time lost in removing the said stallion from Abilene, Kan. to Kiowa Kan., the said stallion contracted pneumonia and died soon after reaching Kiowa, Kan.; that said death was due to the carelessness and negligence of the defendant, its employs and agents, in failing to move the said car from Abilene, Kan., to Kiowa, Kan., "within the time prescribed by the statute hereinbefore pleaded."

The petition does not allege any damage accrued to plaintiff by any failure to receive the horse promptly for shipment. Although the allegation is that it was first shipped from Beloit, Kan., to Abilene, where there was unreasonable delay, it is alleged that the stallion was in perfect health at the time of its delivery to defendant at Abilene. The only act of negligence alleged was the failure of the defendant to transport the shipment after receiving it within the time prescribed by the statute.

The answer of the defendant sets up that at the time of the alleged offer of the said stallion for transportation from Abilene, Kan., to Kiowa, Kan., the defendant could not accept it for shipment, for the reason that from the 2d day of March until the 4th day of March, 1912, it was impossible to move its freight trains on account of an unusual and unprecedented snow blockade existing upon its line between Abilene, Kan. and Kiowa, Kan., and that as soon as its said line was open for traffic it did accept and transport the said stallion from Abilene to Kiowa. The answer then alleges that under the laws of the state of Kansas, the order or ordinance of the Kansas Board of Railroad Commissioners, the published tariff rates of the defendant and the shipping contract, the value of the horse was limited to one hundred dollars.

The answer further says if there was any delay in the transportation, said delay was due entirely to unprecedented conditions, and "that this defendant is not liable for such delay by reason of the provision as contained in section 7116 of the statute of Kansas as quoted on page 2 of defendant's amended petition."

The answer is of great length, and not only recognizes the statute upon which the suit is brought, but pleads facts which would avoid the effect of the statute. It is a confession and an avoidance.

The plaintiff in reply set up other statutes of Kansas and decisions of that state construing the various statutes.

The case proceeded to trial, and plaintiff testified to the facts relating to the shipment and death of the horse as alleged in the petition, and defendant in cross-examination offered the shipping contract and produced a witness to show the rules of the Kansas Public Utilities Commission. The plaintiff produced several witnesses relating to the negligence of the defendant. The plaintiff then offered the statute of Kansas, sections 7116 and 7117. At that point the defendant objected to the introduction of these sections of the Kansas Statutes on the ground that they are in violation of the Fourteenth Amendment to the Constitution of the United States. At the close of the evidence instructions also were offered to the effect that these sections of the statute were unconstitutional.

I. In order to give this court jurisdiction of a case on the ground that a constitutional question arises in the case, "the constitutional question should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case." This rule has been repeated time and again until it should be considered no longer a matter of debate. The cases have been fairly consistent with slight differences in the application of the rule to the records presented. The earliest moment that good pleading and orderly procedure will admit may occur at alma any stage of the proceeding, from the filing of the answer to the filing of the motion for new trial. Without construing this rule so strictly as to apply it to every moment of time in the progress of the case, it is obvious that there are three general stages in a proceeding, separated from each other in the very nature of the case by the regular steps of an orderly proceeding, during which questions of that character may be raised: First, opportunity might be presented to raise it in the pleadings when the trial court could have time and deliberation to consider so important a question before the hurry and stress of the actual trial begins; second, it might arise for the first time in the progress of a trial when a ruling of the court is demanded upon the introduction or exclusion of evidence, or the giving of instructions to the jury; or, third, it might occur after trial, when a motion for new trial is filed and presents the first opportunity.

The question here is, Could the constitutional question have been raised by the pleadings, and, if so, was it too late to wait until the trial was in progress and then raise it for the first time on objection to the evidence? The expressions of seine of the numerous cases upon this point ought to settle it. The case of Lohmeyer v. Cordage Co., 214 Mo. 685, 688, 113 S. W. 1109, treated the subject at some length, and that case has been quoted in many subsequent cases. The court there characterizes the practice of waiting until late to raise a constitutional question in these words:

"Whatever the use of an ambush in war, or games of chance, its use does not commend itself to jurisprudence."

And on page 689 of 214 Mo., on page 1110 of 113 S. W.:

"A constitutional question might possibly obtrude itself at the trial regardless of the pleadings through some unanticipated ruling on the introduction of testimony."

And on page 690 of 214 Mo., on page 1110, of 113 S. W.:

"It must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case."

And further:

"If plaintiff grounds his right of action on a statute which defendant contends is unconstitutional, it should be put in the answer and kept alive."

The case of Ash v. City of Independence, 169 Mo. 77, at page 79, 68 S. W. at page 888, said:

"When, as in this case, the party seeking its protection was advised, at the time of filing its answer, of the statute which it asserts is unconstitutional, and that the rights of the opposite party would be predicated on such statute, it is his, or its, plain duty to plead the unconstitutionality of the statute and point out the specific provisions of the federal or state Constitution, or of both, if such is the case, which it will insist is infringed by such statute, or if the question arises for the first time during the trial by reason of a construction put upon a statute or proceeding by the trial court, the objection that such a construction would violate a constitutional right * * * must be preserved on the record."

That case, after an appeal to the Kansas City Court of Appeals, had been remanded and an amended answer was filed in which the constitutional question was raised and it was held too late.

In Miller v. Connor, 250 Mo. 677, loc. cit. 684, 157 S. W. 81, 83, the court said:

"So, a constitutional question must be raised timely in the course of orderly procedure. Accordingly it should be raised in the pleadings if due to be found there."

In the case of George v. Railroad, 249 Mo. loc. cit. 199, 155 S. W. 454, the court says:

"Now in this case it is conceded that the vital count of plaintiff's petition was based upon our statutes. With such concession it became the duty of the railway company to raise the question of unconstitutionality in the answer. This was not done."

In Deiner v. Sutermeister, 266 Mo. loc. cit. 514, 178 S. W. 759, in...