Stroud v. Missouri Pacific Railroad Co.
| Decision Date | 14 January 1922 |
| Citation | 236 S.W. 891,210 Mo.App. 311 |
| Parties | ROY STROUD, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
J. C Sheppard for appellant.
(1) Respondent was permitted to testify over the objections of appellant to what the conductor and brakeman said to him on another occasion as to the furnishing of cars. This was objectionable because it was not shown to be the duty of the conductor or brakeman to furnish cars; and for the further reason that the admissions of these agents were not made at the time of the transaction. And this is reversible error. Bevis v. B. & O. Ry. Co., 26 Mo.App. 19; McDermott v. Railroad, 73 Mo. 516; Adams v Railroad, 74 Mo. 553; Atkinson v. School of Osteopathy, 240 Mo. 338; Robinson v. Bush, 200 S.W. 757. (2) The court erred in rendering a judgment for three times the amount of the verdict of the jury, over the objections and exceptions of appellant, and also in refusing to sustain the motion in arrest of judgment. This was clearly a penalty for the violation of the statute under which respondent brought his action. During the period of federal control penalties could not be collected against common carriers, even those fixed by the laws of the several States. Hines v. Taylor, 84 So. 381; Jackson-Tweed Lbr. Co. v. Sou. Ry. Co., 101 S. E. (S. C.) 924; Mo. P. Ry. Co. et al. v. Ault, 41 S.Ct 593; No. 17 Adv. Sheets S.Ct. 593.
Cope & Tedrick for respondent.
(1) The court did not err in admitting in evidence the statements made by the conductor and brakeman (appellant's abstract, pp. 17, 18, 19), as these statements were made in explanation of the failure to deliver cars to plaintiff, and were made in connection with their work of handling and setting out cars on the sidetracks. Robinson v. Bush, 200 S.W. 757; Heading & Stave Co. v. St. L., I. M. & S. Ry. Co., 119 Mo.App. 495. (2) The court did not err in refusing defendant's instructions in the nature of a demurrer to the evidence, at the close of plaintiff's case, for the reason there was sufficient evidence on the part of plaintiff tending to show there was a preference shown the Rash Lumber Company in the distribution of cars. (Appellant's abstract, page 14). Shoptaugh v. St. L. & S. F. Ry. Co., 147 Mo.App. 8. (3) There was no shipment and nothing in the transaction pertaining to a shipment. The suit was for "unlawful discrimination" between shippers, and it is not a question whether the cars denied the plaintiff were intended for shipment within the State or without. It was sufficient that the offense was committed within the State. Puritan Coal Mining Co. v. Penn. Ry. Co., 85 A. 426; Missouri Pacific Ry. Co. v. Larabee Mills, 211 U.S. 612 (); Rittman v. Mo. P. Ry. Co., 184 Mo.App. 424.
--Plaintiff filed his petition based on section 9985 and 9990, Revised Statutes 1919, to recover treble damages for alleged discrimination in furnishing cars for the shipment of lumber. The cause was tried to a jury, and a verdict of $ 500 was returned. This was trebled in accordance with section 9990, and judgment rendered. Failing to get a new trial defendant appealed.
Plaintiff alleged that June 12, 1920, he had 20,000 feet of lumber stacked at Oxley on defendant's road, in Ripley County, of the market value of $ 60 per thousand, and that on that day he made application to defendant through its station agent at Oxley for two cars in which to ship this lumber to St. Louis, Mo., that defendant failed to furnish these cars within a reasonable time, and that after plaintiff had made his application, defendant furnished cars for like purpose to other shippers before he was furnished; that although he made his application June 12th, he received no cars until August 19th, and that in the meantime his lumber had greatly depreciated in value, and that he was damaged in the sum of $ 1000.
Defendant denied generally any discrimination, and alleged that in pursuance of plaintiff's order of June 12th it placed two cars for plaintiff, and that he failed for the period of four days to load them, and thereafter cancelled his order and voluntarily consented for another lumber shipper to use them. Defendant alleges that if any cars were delivered to other shippers after plaintiff filed his order and before he was supplied that such was in obedience to preferences made by the Interstate Commerce Commission. Further answering, defendant alleged that it moved its cars from Oxley to St. Louis over two routes; one over its line of railroad through the State of Missouri for the entire distance from Oxley to St. Louis; the other via Thebes, Illinois, and thence through the State of Illinois to St. Louis; and that the usual and regular way of routing cars loaded with lumber at Oxley and consigned to St. Louis would be over the interstate route, and would be interstate commerce, and that section 9985 of our statute has no application, and that the court had no jurisdiction.
Defendant concedes that plaintiff on June 12th ordered two cars for the purpose of shipping lumber. Two cars were placed for plaintiff July 22nd, and July 26th were given to one Rash because plaintiff, as claimed by defendant, could not get a crew. The record shows that a number of the same kind of cars were ordered by other shippers subsequent to plaintiff's order, and that many of these were furnished before plaintiff was furnished. Plaintiff wanted his cars for lumber only while none of those furnished to other shippers in alleged violation of plaintiff's rights are designated as for lumber only, but a number are designated as for "lumber and ties," and some for "props." We infer, however, from the record that a number of these cars were loaded with lumber only. Plaintiff denied that his cars were placed July 22nd, and that he consented for Rash to have them. He also denies that he failed to load because he could not get hands. He says that it was the latter part of August that he consented for Rash to have a car he had ordered. Defendant makes no claim that the Interstate Commerce Commission had ordered any preference except as to cars carrying mine props or other material for coal mines.
Defendant assigns as error: (1) The refusal of its peremptory instruction at the close of the case; (2) the admission of evidence; and (3) the giving and refusal of instructions; (4) in rendering judgment for treble damages.
The first assignment is based upon two propositions. First, that there is no substantial evidence to support the verdict, and, second, that the cars ordered, if furnished, would have been for an interstate shipment and therefore the statute under which plaintiff is proceeding would have no application. At the close of plaintiff's case defendant offered a demurrer, and was overruled. It did not stand upon its demurrer, but introduced its evidence, and the cause stands here upon the whole record. When the whole record is considered we think the evidence was sufficient to take the case to the jury. The second feature of the first assignment raises a somewhat new question. If defendant had only the Illinois route from Oxley to St. Louis then a car ordered as plaintiff ordered would be ordered for an interstate shipment. But defendant has a line of railway from Oxley to St. Louis wholly within the State of Missouri, and the evidence shows that the shipment could have been over the intrastate route. Defendant showed by its superintendent of transportation that a shipment of lumber from Oxley to St. Louis would go via the Illinois route as "a matter of operating convenience and economy." The Missouri line Defendant's agent at Doniphan near Oxley and in the same county and on the same line of railroad was called by plaintiff and asked as to the routing of lumber from Doniphan. His answer was:
It does not appear whether plaintiff designated "Missouri Rail" with reference to the cars of...
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