Stroud v. Missouri Pacific Railroad Company

• Decision Date: 26 June 1923
• Citation: 254 S.W. 111,212 Mo.App. 512
• Parties: ROY STROUD, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

254 S.W. 111

212 Mo.App. 512

ROY STROUD, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

June 26, 1923

Appeal from the Circuit Court of Ripley County.--Hon. Almon Ing Judge.

AFFIRMED (on condition).

James F. Green and J. C. Sheppard for appellant.

(1) It failed to require the jury to find that if there were orders by other shippers subsequent to June 12, 1920, and filled prior to respondent's order, that the shipments made in said cars were intrastrate, thereby making the Missouri statute applicable. Secs. 9985, 9993, R. S. 1919; Steele v. Railroad, 165 Mo.App. 311; C., R. I. & P. Ry. Co v. Farmers Elevator Co., 226 U.S. 426, 33 S.Ct. 174; Southern Railway Co. v. Reid, 222 U.S. 424, 32 S.Ct 140; Erie Railroad Co. v. People of the State of New York, 233 U.S. 671, 34 S.Ct. 756; People v. Commission, 135 N.E. 197. (2) The relative supremacy of the State and National power over interstate commerce needs little comment. Where there is conflict, the State legislation must give way. Indeed, when Congress acts in such a way as to manifest its purpose to exercise its constitutional authority, the regulating power of the State ceases to exist. Railway Co. v. New York, 233 U.S. 681; Taylor v. Taylor, 232 U.S. 363; Minnesota Rate Cases, 230 U.S. 352; McDermott v. Wisconsin, 228 U.S. 115; Railway Co. v. Hackett, 228 U.S. 559; Express Co. v. Croninger, 226 U.S. 491; Sells v. Railway Co., 266 Mo. 184; Thompson v. Railway Co., 262 Mo. 480; State v. Railway Co., 212 Mo. 658.

Cope & Tedrick for respondent.

All that respondent is concerned with is in establishing the fact that his shipment or rather intended shipment was intrastate. Puritan Coal Mining Co. v. Penn. R. R. Co., 237 Pa. St. 420. Affirmed in 237 U.S. 121; Missouri Pac. Ry. Co. v. Larabee Mills, 211 U.S. 612; Pub. Utilities Comm. ex rel. Hillsboro Coal Co. v. Cleveland C. C. & St. L. Ry. Co., 301 Ill. 219; Mulberry Hill Coal Co. v. Ill. Cent. Ry. Co., 257 Ill. 80. Affirmed in 238 U.S. 275; Chicago, Milwaukee & St. Paul Ry. Co. v. State Public Utilities Company of Illinois, 268 Ill. 49. Affirmed in 242 U.S. 333; Pa. R. R. v. Sonman Coal Co., 241 Pa. St. 487. Affirmed in 242 U.S. 120; State of Texas v. East Texas Ry. Co. Advance opinion. Lawyer's Co-operative Pub. Co. of April 15, 1922, page 313.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--This is an action based on sections 9985 and 9990, Revised Statutes 1919, to recover treble damages for alleged undue or unreasonable preference in furnishing cars to ship lumber. The case was tried before the court and a jury, resulting in a verdict for plaintiff for $ 1000, which was trebled in accordance with section 9990 and judgment rendered accordingly. Defendant filed motions for a new trial and in arrest. These were overruled, and it appealed.

This cause was here on a former appeal (Stroud v. Mo. Pac., 210 Mo.App. 311, 236 S.W. 891), and for a statement we refer to the cause as reported as the facts are substantially the same. An assignment here, however, relating to interstate commerce was not specifically decided on the former appeal.

Defendant contends that error was committed: (1) in refusing its instruction in the nature of a demurrer; (2) in giving plaintiff's instruction number 1; (3) in the instruction on the measure of damages, and (4) that the verdict is excessive.

The first assignment is based on the proposition that there is no substantial evidence tending to show any undue or unreasonable preference. As stated, the evidence at the second trial was substantially the same as that of the first, and on the former appeal we ruled that there was sufficient evidence to take the cause to the jury, and we adhere to that ruling.

Plaintiff's instruction number 1 is as follows: "The court instructs the jury that if you believe and find from the evidence in this case that the plaintiff, Roy Stroud, had, on the 12th day of June, 1920, a quantity of lumber placed at Oxly, Missouri, a station on defendant's railroad; that said lumber was deposited at the place provided by defendant for receiving such shipments; and that plaintiff on said date made application to defendant's agent at the said station for cars in which to ship his lumber; and that he tendered said lumber for shipment under the terms and conditions imposed by defendant; and if you further find that after the said cars were ordered by plaintiff and his application for same was filed and before said cars were delivered other shippers at the said station of Oxly, Missouri, engaged in the business of shipping lumber over defendant's railroad, ordered cars from defendant's agent at the station aforesaid, and that the defendant delivered cars to these shippers in preference to plaintiff and that the cars delivered to these other shippers were not to be used for shipping mine props or other mine material that had a preference under the Interstate Commerce Commission's ruling, offered in evidence; and if you further find that such preference, if any, resulted in a loss to plaintiff, then your verdict must be for plaintiff for such sum as you believe from the evidence he has been damaged, not to exceed $ 1000."

Defendant challenges instruction number 1 on the grounds (a) that if failed to require the jury to find, before plaintiff could recover, that cars delivered to other shippers in discrimination against plaintiff were for intrastate shipments; (b) that instruction number 1 is in conflict with defendant's instruction number 4; (c) that instruction 1 fails to require the jury to find that there was any undue or unreasonable preference.

Defendant contends in effect that even though it subjected plaintiff to undue or unreasonable prejudice or disadvantage in failing to furnish cars, that it is not liable, if those whom it favored used the cars, furnished in discrimination against plaintiff, for interstate shipments; and that instruction number 1 should have required a finding on that question. We granted a rehearing in this cause, and when it was reargued, it was urged that a shipper had no redress under the State statute when discriminated against, if such discrimination was in favor of an interstate shipper. This question was one of the grounds which caused us to grant a rehearing. The question is: If an interstate shipper is favored over an intrastate shipper, has the intrastate shipper any remedy under the State statutes? On the authority of Alexander v. Railroad, 282 Mo. 236, 221 S.W. 712, we answer the question in the affirmative. In that case our Supreme Court en banc had under consideration the same sections of our statutes as are involved here. In the Alexander Case plaintiff sued to recover treble damages and attorney's fee for refusing to set a car of coal on a switch adjacent to plaintiff's coal yard. The defendant contended that the petition did not state a cause of action in that it was not alleged that the car of coal was an intrastate shipment. It was held that such an allegation was not necessary; that such was a matter of defense. Defendant in the case at bar does not specifically plead that the alleged favored shipments were interstate, but we think the point is sufficiently made. The court in the Alexander Case said: "Neither do we think that appellant's contention that 'before appellant can be held liable it must be shown that it gave undue or unreasonable preference' to some person other than respondent, is well taken. If appellant's construction of this statute were sustained, a common carrier could refuse to deliver shipment to one consignee, and yet if it gave no special preference to other consignees it could not be held to have violated the law. We do not understand the law to mean that a common carrier may, without just reason, ruin a man's business by refusing to serve him, and then escape liability therefor merely because the injured on cannot prove that the carrier has shown an undue preference toward another. Section 3184, supra, does, it is true, forbid a common carrier 'to give any undue or unreasonable preference or advantage to any particular person,' but with equal clearness it also forbids a common carrier 'to subject any particular person--to any undue or unreasonable prejudice or disadvantage.' Either act is an offense against the law. Both might be committed at the same time, and, conceivably in the same transaction, but the offenses are not necessarily concomitant, nor in any sense interdependent. It is not necessary for the carrier to violate the law twice in order to be held liable once." (Italics ours.)

To give one shipper "undue or unreasonable preference or advantage" is bound to result in "undue or unreasonable prejudice or disadvantage" to some other shipper, because there could be no advantage if only one shipper were involved. Plaintiff not only charged that another shipper was favored over him, but he also charges in effect "undue or unreasonable prejudice or disadvantage." In fact it seems to use that a charge of "undue or...