Tucker v. St. Louis-San Francisco Ry. Co.

• Decision Date: 18 June 1921
• Docket Number: No. 2905.,2905.
• Citation: 233 S.W. 512
• Parties: TUCKER v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

233 S.W. 512

TUCKER v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 2905.

Springfield Court of Appeals. Missouri.

June 18, 1921.

Rehearing Denied August 9, 1921.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by D. T, Tucker against the St. Louis-San Francisco Railway Company. Judgment for defendant and plaintiff appeals. Affirmed and motion for rehearing denied but case certified to Supreme Court by reason of conflict with opinion of that court.

Corbett & Stiles, of Caruthersville, for appellant.

W. F. Evans, of St. Louis, and Ward & Reeves, of Caruthersville, for respondent.

BRADLEY, J.

Plaintiff filed his petition in 31 counts to recover the penalty provided in section 9975, R. S. 1919. A trial before the court and a jury resulted in a verdict and judgment for the defendant. Unsuccessful in motion for new trial, plaintiff appealed.

Plaintiff alleges in his first count that on July 1, 1920, and for a long time prior thereto, defendant maintained a public switch track running from its station in Caruthersville a distance of about 300 yards to the bank of the Mississippi river, and near which switch and the river bank plaintiff had for a long time been operating a sawmill; that the defendant had been for a long time prior to July 1, 1920, furnishing cars on said switch for plaintiff to load his lumber; that on or about July 18, 1920, plaintiff requested defendant to furnish him cars on said switch to ship lumber to Hayti, Mo.; and that defendant refused, but informed plaintiff that said switch had been leased to the Caruthersville Sand Company, and that if plaintiff desired cars to ship lumber he would have to take them on another switch. Plaintiff further alleges that he was compelled by reason of such refusal to furnish him cars on the said switch to haul his lumber from his mill to a much more distant switch at much extra expense; that the defendant permitted the sand company to use said switch, and denied plaintiff the use thereof; and that by reason of the premises defendant furnished the sand company superior facilities for the transportation of freight, in violation of section 3174, R. S. 1909, now section 9975, R. S. 1919. Plaintiff prayed judgment on this count in the sum of $30, the amount of the freight charges on a car shipped July 18, 1920. The remaining counts are the same except as to the date of the shipment and the amount. In the aggregate plaintiff asked judgment for $930. The defendant answered by a general denial.

The switch in question extends from near the depot in Caruthersville in a northeasterly direction to or near the river. It crosses the river levee, and a public road or street is between the levee and the river. Plaintiff's sawmill is on the river bank on what may be called the north side of the switch, and the sand company's sand bins are on the bank of the river and somewhat southeast of plaintiff's mill. Plaintiff's mill has been so located for some five years, and he and the public generally, including the sand company, have been using this switch. A portion of the switch at its river terminus had not been in repair for some time, how long is not clear, due to a cave-in of the river bank. On March 15, 1920, the sand company entered into a contract with defendant railway company by which defendant agreed to construct at the sand company's expense a spur leading from the switch in question. This spur connects with the southeasterly side of the switch 530 feet from the point where the switch connects with the main track near the depot, and said spur extends from the point of connection in an easterly direction a distance of 291 feet. The first 95 feet of this spur are on the right of way of defendant, and the remaining 190 feet are on the property of the sand company. The sand company is to pay for the upkeep of the whole spur, but defendant owns outright that part on its right of way. It is provided in the contract that defendant shall have the right at any time when in its opinion the business furnished by the sand company does not justify the maintenance of the spur, on giving 30 days' notice in writing, to discontinue the use of the spur.

This spur cost the sand company $1,000, and J. A. Riggs, who constituted the sand company, testified that in 1913 he, under a contract like the one of March 15, 1920, built 200 feet on the main switch at a cost of $233. It would appear that this extension on the main switch track was to repair that part that had been wrecked by the cave-in of the river bank. The main switch track is about 000 feet long, and the sand company under the contract, so far as appears, had no special interest in the switch track except the 200 feet. The contract under which the sand company extended the switch or repaired it was not put in evidence. The sand company extended the main switch track under its sand bins, and had its own motive power to move cars after they were placed on the switch track. By this means it could load six or eight cars daily, if they were placed on the switch for its use. It used the spur it built to place cars on alter being loaded so as to have them out of the way. If plaintiff used the switch, the sand company would not have sufficient room for Its cars. The Pierce Oii Company has its tanks on the east side of the switch track, but up near the depot, between the point where the switch track leaves the main track and the levee. The oil company uses this switch, and there is an understanding between the sand company and defendant that when the oil company is using the switch the sand company may not be accommodated with all the empty cars it may desire.

Here is the situation as we see it: The sand company extended the switch track 200 feet in 1913. Plaintiff began using this switch, but not the 200 feet, to load his lumber in 1915, and continued to so use it as did the general public until July, 1920. The switch had been a public switch for 25 years, except for that portion, if any, which the sand company built anew or repaired in 1913. In March, 1920, the sand company had a private spur built connecting with this switch track, and in July, 1920, the defendant discontinued the whole switch track as a public switch, and converted it into a private switch, thereby compelling plaintiff to haul his lumber to a more distant switch and at considerable expense. According to the contract of March 15, 1920, and the one the sand company claims to have for the 200-foot extension, there is no private switch except the 200-foot extension and spur built in 1920. At most, this is all that both the contracts cover, and the remaining 700 feet of the main switch is private merely by a course of conduct on the part of defendant.

Plaintiff makes several assignments of error, but in our view it is not necessary to consider but one question. Under the facts, and granting that plaintiff has been discriminated against in facilities, may he invoke the penalty provided in section 9975, R. S. 1919? This section reads as follows:

"Railways heretofore constructed, or that may hereafter be constructed in this state, are hereby declared public highways, and railroad companies common carriers. No railway company, corporation or association shall hereafter make any discrimination in charges or facilities in transportation of freight or passengers between transportation companies and individuals, nor in the transportation of it eight between commission merchants or other persons engaged in the transportation of freight and individuals, in favor of either, by abatement, drawback, or otherwise, nor shall any such company, corporation or association, nor any lessee, manager or employ of any such company, corporation or association...