The Kansas City Southern Railway Company v. Fields

• Decision Date: 07 April 1906
• Docket Number: 14,410
• Citation: 73 Kan. 375,85 P. 412
• Parties: THE KANSAS CITY SOUTHERN RAILWAY COMPANY v. E. A. FIELDS et al., as Partners, etc
• Court: Kansas Supreme Court

85 P. 412

73 Kan. 375

THE KANSAS CITY SOUTHERN RAILWAY COMPANY v. E. A. FIELDS et al., as Partners, etc

No. 14,410

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

Error from Crawford district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE, SUPREME COURT--Order Granting a New Trial. This court will not reverse an order of the trial court granting a new trial unless the record shows the order was clearly and manifestly in violation of some principle of law.

S. W. Moore, Cyrus Crane, and W. J. Watson, for plaintiff in error.

John M. Wayde, and Paul F. Coste, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

The Fields & Slaughter Company obtained a judgment against Forrester Brothers, to satisfy which they garnisheed the Kansas City Southern Railway Company. It answered that it was not indebted. Upon this answer the Fields & Slaughter Company took issue. The jury returned a verdict for the garnishee. Upon application of the plaintiffs the verdict was set aside and a new trial ordered. The garnishee prosecutes error to reverse this order.

There were no pleadings; consequently the contentions of the parties can only be ascertained from the statements made by counsel and the questions which appear to have been tried. From these it appears that the Fields & Slaughter Company claimed that Forrester Brothers were engaged in buying and shipping corn and oats; that about September 27, 1901, the latter entered into a contract with certain railroads running from Omaha and Council Bluffs and other common northern points to Kansas City, called the northern connecting lines, and the Kansas City Southern Railway Company, for the transportation of corn and oats from Council Bluffs and other common points on these roads to Kansas City and over the Kansas City Southern to Shreveport, Ala., and other common points in the south, at a rate of sixteen and one-half cents per hundredweight; that the Kansas City Southern agreed to accept as its proportion of this rate eight cents per hundred, and to ship the corn over its line from Kansas City at the rate of eight cents per hundred; that Forrester Brothers commenced to ship the corn about the 1st of October, 1901, and continued shipping until February, 1902; that the Kansas City Southern charged eight cents per hundred until October 31, after which time it raised the rate to ten cents, and subsequently to fourteen cents; that Forrester Brothers paid this excess, amounting to about $ 10,000, and therefore that the Kansas City Southern was indebted to Forrester Brothers for this excess. It was this alleged indebtedness of the Kansas City Southern to Forrester Brothers that the Fields & Slaughter Company were attempting to apply upon their judgment against Forrester Brothers.

The Kansas City Southern denied that it had ever made a contract with Forrester Brothers, or any one representing them, for the shipment of corn and oats from Kansas City to Shreveport or other common points at eight cents; but claimed that during the months of September and October, 1901, it had declared and published a rate of ten cents per hundred pounds on corn and oats from Kansas City to Shreveport, Texarkana and other common southern points; that this rate had been filed with the interstate commerce commission at Washington, as required by the interstate commerce act, and was in force until October 31, about which time it changed its schedule and advanced the rate to fourteen cents, which rate was also published, and...