White v. Delano

• Decision Date: 13 February 1917
• Citation: 191 S.W. 1012,270 Mo. 16
• Parties: C. W. WHITE v. F. A. DELANO et al., Receivers of WABASH RAILROAD COMPANY, Appellants
• Court: Missouri Supreme Court

191 S.W. 1012

270 Mo. 16

C. W. WHITE v. F. A. DELANO et al., Receivers of WABASH RAILROAD COMPANY, Appellants

Supreme Court of Missouri

February 13, 1917

Appeal from Montgomery Circuit Court. -- Hon. James D. Barnett Judge.

Reversed and remanded (with directions).

J. L Minnis, N. S. Brown and H. W. Johnson for appellants.

(1) The demurrer to the evidence should have been sustained, because (a) The Maximum Freight Rate Act was suspended for the time being, by force of the injunctive decree of the Federal court. State ex inf. v. Railroad, 176 Mo. 687; Young v. Railroad, 33 Mo. 509; Coal Co. v. Railroad, 52 F. 716; State v. Railroad, 130 Minn. 144; Wadley Southern Ry. v. Georgia, 235 U.S. 651; Coal & Coke Ry. v. Conley, 67 W.Va. 129, 230 U.S. 522. (b) The alleged damages resulting to plaintiff are damnum absque injuria, because they directly flow from the legitimate prosecution of the injunction suit. Meysenberg v. Schleiper, 48 Mo. 426; St. Louis v. Gaslight Co., 82 Mo. 349; State ex rel. v. Williamson, 221 Mo. 264; Albers Com. Co. v. Spencer, 236 Mo. 628; San Jose Co. v. Cutting, 133 Cal. 237; Clay Center v. Williamson, 79 Kan. 485; Russell v. Farley, 105 U.S. 445; Meyers v. Block, 120 U.S. 208; Tullock v. Mulvane, 184 U.S. 497; Railroad v. Elliott, 184 U.S. 530; Houghton v. Cortelyou, 208 U.S. 149; High on Inj. (4 Ed.), sec. 1663. (2) The court erred in giving judgment to plaintiff for treble damages, because, (a) During the time the shipments were made, defendants were in good faith proceeding to test the constitutionality of the Maximum Freight Rate Act, and during such time the penalties provided by said statute could not be constitutionally invoked. Cases under point one, first subdivision. (b) The Maximum Freight Rate Act provided the exclusive penalty for its violation, and the penalty of treble damages provided for by section 3241 cannot be invoked. See Sec. 2, Laws 1907, p. 171. (c) Sec. 3248, R. S. 1909 was repealed by said section 2. See sec. 5, Laws 1907, p. 171. (3) The court's finding of fact on each count of the petition is contrary to the law and the evidence, and the judgment based thereon is excessive, because the court erroneously failed to allow each of the two carriers hauling the shipments, its maximum charges as provided by the Maximum Freight Rate Act. (4) The socalled continuous mileage provision of Sec. 3241, R. S. 1909, is invalid, because: (a) It is in conflict with the preceding parts of the section fixing the reasonable rates to be charged. (b) As applied to the facts in this case, the provision requires one of two things, viz.: (1) That the last carrier shall haul the shipment for nothing; or (2) that the first carrier shall, out of its revenues, pay the reasonable charges of the last carrier, and thereby reduce the revenues of the first carrier below the reasonable rates fixed by the statute. Owens v. Railroad, 83 Mo. 454. (c) The provision fixes no basis for dividing the total charges between the carriers involved in the haul, and is so indefinite and uncertain as to be incapable of enforcement, and therefore, void for uncertainty.

Ernest E. Watson, W. P. Alden, Henry L. McCune and Clifford B. Allen, Amici Curiae.

James F. Ball and Claude R. Ball for respondent.

(1) The suspension of the enforcement of the statute could only suspend the enforcement of the law between the parties to that case until the injunction was finally determined, and when the injunction was dissolved it left the parties just where they were when the suit was begun. (2) If the railroad insisted on retaining the excess so charged, as they do here, the penalty of the statute should be invoked. (3) The statute complained of by the defendants in this cause has been upheld by the appellate courts of this State for a great many years. Burkholder Case, 82 Mo. 572; McGrew v. Railroad, 230 Mo. 496; McGrew v. Railroad, 177 Mo. 533; Cohn v. Railroad, 181 Mo. 30. (4) The overcharge of rate paid by the plaintiff in this case to the defendants was his as much after the payment of the same to the defendants as it was before. (5) The fact that plaintiff did not institute this suit against the defendants during the time the injunction suit was pending is in no way to the disadvantage of these defendants. (6) Such a statute as this enacted under the Constitution for the control of common carriers, or those operating such a system, should be construed in the most beneficial way which its language will permit, so as to prevent common carriers, and those operating the same, from infringing upon the rights of the citizen. McGrew v. Mo. Pac. Ry. Co., 177 Mo. 545; Gott v. Powell, 41 Mo. 417; St. Louis v. Gaslight Co., 70 Mo. 69, 82 Mo. 349. These cases all hold that parties must be restored to their rights at the time of the institution of the injunction. (7) The court's finding of fact on each count of the petition gave credit to the defendants for the legal rate they were entitled to charge the plaintiff for these various shipments from the point of beginning to their destination in the city of St. Louis. The court gave the defendants credit on each shipment for the amount they paid on each shipment to its connecting line, and rendered a judgment against them for the excess in each count.

W. F. Evans, E. T. Miller, J. M. Bryson, J. W. Jamison, Edw. J. White, J. F. Green, Thos. T. Railey and Thomas R. Morrow, Amici Curiae.

WOODSON, J. Bond, J., concurs in separate opinion.

OPINION

In Banc.

WOODSON J.

This suit was instituted in the circuit court of Montgomery County by the plaintiff against the defendants as receivers of the Wabash Railroad Company, to recover alleged overcharges in payment of freight collected by them on shipments of live stock, made by plaintiff from Montgomery City, Jonesburg, New Florence and High Hill, Missouri, to the city of St. Louis, Missouri, and consigned to the St. Louis Stock Yards, the St. Louis Dressed Beef Company and the Independent Packing Company. There was a judgment for the plaintiff, and the defendants appealed to this court.

The issues and facts of the case are undisputed, and are as follows, as stated by counsel for defendants:

"The petition is based upon the Maximum Freight Statute of 1907 (Secs. 3241-2, R S. 1909), and contains one hundred and thirty-nine separate counts, each count covering a separate shipment between the points named. As the allegations in each count are identical, except as to the place of shipment, the freight charges paid, and the amount of the alleged overcharge, it is deemed sufficient to refer to the allegations of the first count.

"The petition charges that 'the defendants are the duly appointed receivers of the Wabash Railroad Company, and were during all of the times mentioned in the petition, operating the line of the Wabash Railroad as a common carrier of live stock in carload lots, for hire, and for carrying of all other stock usually and customarily carried and transported by railroad companies of like nature. That during all of the times mentioned, the plaintiff was engaged in the business of shipping hogs, cattle, sheep and other live stock in carload lots from Montgomery City, Jonesburg, New Florence and High Hill to St. Louis, Missouri.

"'And for his cause of action against defendants, states that on the 3rd day of January, 1912, plaintiff shipped two carloads of hogs from Montgomery City, Missouri, to St. Louis, Missouri, over said Wabash Railroad Company, owned and operated as aforesaid by the defendants, to the Independent Packing Company. That the distance between Montgomery City, Missouri, and St. Louis, Missouri, is over 75 miles and under 100 miles, to-wit, 85 miles; that the rate of charges prescribed by law upon the carload of hogs so shipped as aforesaid is and was $ 15.40 per car, amounting to $ 15.40; but instead thereof, the defendants charged and plaintiff paid the sum of $ 21.75, being in excess of the legal rates aforesaid in the sum of $ 6.35, for which amount plaintiff asks judgment, and he asks that the same be trebled according to the provisions of section 3248 of the Revised Statutes of this State, and for all other due and proper relief.'

"The answer of defendants consists: (1) of a general denial; and (2) a special plea setting up the various proceedings had in a certain injunction suit instituted by the Wabash Railroad Company in the United States Circuit Court at Kansas City, Missouri, in the month of June, 1905, and the filing of its supplemental bill in June, 1907, to enjoin the enforcement of the rates fixed by the acts of the General Assembly of Missouri, approved April 15, 1905, and the act approved March 19, 1907, commonly known as the 'Maximum Freight Rate Acts.' The defendants in said suit were the then members of the Railroad and Warehouse Commission of Missouri, the Attorney-General, and certain individuals continually engaged in shipping over the line of the Wabash Railroad Company. Said individuals being sued as representing all of the shippers of the State as a class affected by the Maximum Freight Rate acts. With respect to this proceeding, the answer alleges the following facts:

"(1) That upon the filing of said bill of complaint, there was entered by said court an order restraining the Railroad Commissioners from taking any steps to put in force and effect the maximum rates mentioned in the said statutes; and from requiring the Wabash Railroad Company to post or file at any time or place said maximum rates or a schedule thereof from taking, making out, printing or delivering any schedule of rates containing said maximum rates, from instituting any investigation of any complaint that the rate was unreasonable, extortionate or unjust, because higher than the maximum rate fixed by said statu...