The Larabee Flour Mills Company v. The Missouri Pacific Railway Company

• Decision Date: 07 July 1911
• Docket Number: 15,167
• Parties: THE LARABEE FLOUR MILLS COMPANY, Plaintiff, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Defendant
• Court: Kansas Supreme Court

116 P. 901

85 Kan. 214

THE LARABEE FLOUR MILLS COMPANY, Plaintiff, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Defendant

No. 15,167

Supreme Court of Kansas

July 7, 1911

Decided July, 1911.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

DAMAGES--Jurisdiction--Refusal to Transfer Cars--Mandamus--Supersedeas Bond--Measure of Damages--Loss of Profits--Attorneys' Fees--Antitrust Law as a Defense. In original proceedings in mandamus to compel a railway company to furnish transfer services to a shipper judgment was given for the plaintiff and the peremptory writ allowed. Thereupon the defendant sued out a writ of error to the supreme court of the United States where the judgment was affirmed. The plaintiff then filed in this court a claim for damages. Held,

(1) The judiciary act (4 Fed. Stat. Anno., pp. 195-734) was not intended to affect and does not affect the jurisdiction of this court.

(2) The jurisdiction of this court in mandamus attaches upon the issuance of the alternative writ, and continues unabated, not only until the peremptory writ issues but until obedience thereto is enforced.

(3) The allowance of the writ of error did not operate to remove the suit from the supreme court of the state to the supreme court of the United States but merely operated to bring up the record for review.

(4) The allowance of the writ of error did not supersede the judgment; the taking of the bond brought about the supersedeas.

(5) The damages in mandamus proceedings comprehended by section 723 of the code are the injuries sustained as the natural and probable consequences of the wrongful refusal to comply and the expense reasonably and necessarily incurred in compelling compliance with the alternative writ, including reasonable attorneys' fees in this court and in the supreme court of the United States.

(6) Damages incurred prior to the issuance of the alternative writ cannot be recovered.

(7) Damages for loss of profits may be recovered where the amount of such loss and the fact that it resulted by defendant's refusal to comply with the alternative writ can be determined by the court with reasonable certainty.

(8) In such an action where the defendant claims in mitigation of damages that plaintiff might and should have compelled it to furnish cars by serving a written demand and making the cash deposit provided by the statute, the burden rested upon the defendant to show that it stood ready to furnish the service upon such demand.

(9) In view of the undisputed character and importance of the litigation, the services performed and the results obtained, the amounts allowed by the commissioner as attorneys' fees for plaintiff's attorneys are approved.

(10) The defendant claimed that plaintiff was not entitled to recover any damages because during the time the damages arose plaintiff was a member of an organization in violation of the antitrust laws. Held, that the plaintiff was entitled to recover whatever damages it sustained by the wrongful suspension of the transfer service unless the service sought to be enforced by the mandamus was a necessary part of the purposes of such unlawful trust or combination.

Joseph G. Waters, John C. Waters, Charles Blood Smith, and John F. Switzer, for the plaintiff.

B. P. Waggener, for the defendant.

OPINION

PORTER, J.:

In this case judgment awarding a peremptory mandamus was rendered December 8, 1906, and the defendant railway company was ordered to resume the transfer service for the plaintiff. ( Larabee v. Railway Co., 74 Kan. 808.) Thereafter defendant sued out a writ of error to the supreme court of the United States, where the judgment was affirmed. ( Missouri Pacific Ry. v. Larabee Mills, 211 U.S. 612, 53 L.Ed. 352, 29 S.Ct. 214.) After the affirmance of the judgment by that court the plaintiff filed here a claim for damages arising out of the defendant's refusal to furnish transfer service covering the period from the suspension of such service, August 29, 1906, until it was resumed under the peremptory writ. The Hon. H. C. Sluss was appointed commissioner to take the testimony and report his findings of fact and conclusions of law. The report has been made, and a number of exceptions have been filed thereto by the plaintiff and by the defendant.

The plaintiff's principal objection arises over the disallowance of a claim for the loss of profits covering a period of 117 days, at $ 100 per day, and aggregating $ 11,700. The basis of this claim is the alleged inability of the mill company to grind corn and market corn products.

The commissioner's findings and his reasons for disallowing the claim are stated as follows:

"I find from the evidence that the mill company's mill is equipped for grinding corn and the production of corn products, and has a maximum capacity of 100,000 pounds of corn per day; that the mill company ground but little corn during the period of the suspension of the transfer service. There is no evidence of the price of corn or of corn products during that period, or of the cost of manufacture; nor evidence of the work and profits of other mills of similar character and similarly located as the mill company's; the only evidence being the estimate of witnesses based on the maximum capacity of the mill, and the fact that it was an unusually good corn year, and the fact that the mill company had made money in handling corn through their elevator located on the Santa Fe during the same period, and the belief of the witness that the mill company could have ground a large amount of corn, and that the [in] view of the conditions it would have yielded a profit of ten cents per hundred pounds. I conclude that the evidence is too indefinite and uncertain, based too largely upon estimate, opinion and assumption to justify a finding that there was a loss of profit by reason of inability to grind corn, or if there was a loss, how much it amounted to; and I find the claim not proven."

These conclusions are in harmony with settled rules respecting damages for loss of profits, and meet with our approval. It is true, as said by Judge Brewer in the opinion in Hoge v. Norton, 22 Kan. 374, cited by the plaintiff:

"It is not always easy to draw the line between profits that are a legitimate element of compensation and those that are too remote, contingent or uncertain. The old idea that profits were never recoverable was long since exploded; and now, even in actions on contract, it is said that they may be recovered when proximate and certain. 'The general rule is that the party injured by a breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain and such as might naturally be expected to follow the breach. It is only uncertain and contingent profits, therefore, which the law excludes.' (Griffin v. Colver, 16 N.Y. 489.)" (p. 379.)

The difficulty here is, that from the evidence presented the commissioner was not able, nor are we able, to determine with reasonable certainty that any loss of profits was occasioned by reason of plaintiff's inability to grind corn, or the amount of such loss, if any.

The commissioner rightly refused to allow any damages to the mill company for losses which it claimed to have sustained by the suspension of transfer service prior to the issuance of the alternative writ, holding that up to that time it was optional with the plaintiff to avail itself of mandamus or to pursue its remedy in an ordinary action for damages, and that the only power of this court to award damages is by virtue of its jurisdiction in the mandamus proceeding, and that such jurisdiction had its inception with the alternative writ. The provision of the code authorizing the allowance of damages in mandamus proceedings is:

"If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs." (Civ. Code, § 723.)

( McClure v. Scates, 64 Kan. 282, 67 P. 856.)

Objection is made by the defendant to the allowance of certain claims for wages of men and teams in hauling flour, grain and mill stuffs to the Santa Fe tracks, and the contention is made that it was the duty of the plaintiff to mitigate its damages by all reasonable means within its reach, and that it was within its power to have compelled the defendant railway company to furnish all the cars needed to reach common points by serving a written demand and making the cash deposit provided by the statute. The commissioner held that the burden of proof was upon the defendant to show that to the knowledge of the mill company the defendant was prepared to furnish and ready and willing to furnish to the mill company promptly, on reasonable request, such cars as were needed to enable it to deliver its product to common points as promptly and satisfactorily as could be done by shipment over the Santa Fe in the manner the particular shipments were made, and that there was a failure of proof on the part of defendant to establish this contention. Upon the statement of the facts, the conclusions of the commissioner appear to be sound, and to require no elucidation or comment. The defendant objects to the allowance of this claim, aggregating $ 2386.86, on the further ground that the only evidence in support of it was incompetent. We have examined the evidence of the witness, Larabee, and agree with the commissioner's conclusion that it was not secondary or hearsay, that it was competent, and that the objections to its admission were properly overruled.

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