McGrew Coal Co. v. Missouri Pacific Railway Co.

This petition, filed in the Circuit Court of Lafayette County, Missouri, returnable to the February term, 1915, contains fifty-two counts. Each count is based upon alleged illegal charges on shipment of coal from Myrick, Missouri, to some other station on the line of defendant's railroad in the State of Missouri. All the counts are identical except as to dates, amount of coal shipped, the rate charged, the destination and the comparative rate charged by the defendant for shipment between the points mentioned.

The first count is, omitting titles and signatures, as follows:

"Plaintiff avers that in April, 1908, it was and still is a coal mining company incorporated under the law of the State of Missouri.

"Plaintiff for first cause of action avers that in October, 1879, the defendant was, and has ever since been, a railroad corporation, duly organized under the law of said State and a common carrier for hire of freight and passengers between its station hereinafter named in said State. That within five years last past, and on the dates hereinafter named in Exhibit No. 1, plaintiff produced and sold bituminous coal from its mines near Myrick, one of defendant's stations in said county, and that on the various dates named in Exhibit No. 1, and in the cars therein described by number and initial, he shipped, by defendant's road, from said Myrick, in the aggregate 640,400 pounds of his said coal in car-load lots to the consignees named in said exhibit at Blackwater, another station on defendant's road in said State.

"Plaintiff avers that for the said carriage of said coal defendant fixed, charged, demanded and received of the plaintiff 65 cents per ton, an illegal freight rate, being 25 cents per ton more than defendant was by law entitled to fix, demand, charge and receive, in this, that during all said times and dates herein named defendant had fixed, charged, demanded and received for the carriage of the same class of coal over its said line and over another part of its said road from its station of Waverly, and to another of its said stations, viz., Kansas City, in said State, a distance of 63.84 miles, 40 cents per ton by the car load, while the distance from said Myrick to said Blackwater was only 60.62 miles, for which said rate of 65 cents per ton for said carriage was fixed, charged, demanded and received of plaintiff as aforesaid, and the same was illegal and exceeded the amount the defendant was entitled to fix, charge, demand and receive for said shipments by the sum of $80.05.

"And the plaintiff avers that it is damaged and aggrieved by reason of said illegal freight charge in the sum of $80.05. Wherefore, he prays judgment for the same and for said damages not exceeding $1,000 and for all other and general relief according to the statute in such case made and provided."

The answer admitted that defendant was a corporation and owned and operated the lines of railway mentioned in the petition, on which it was a common carrier of freight and passengers, and denied generally the other allegations of the petition. It also pleaded specially the unconstitutionality of certain statutes on which it assumed the petition was formed. Issue was joined on all these pleas by demurrer and replication.

The cause was submitted to the court on the pleadings and the following stipulation:

"It is hereby stipulated between the parties that the defendant's station, the rates charged by the defendant, and amount of coal transported and the distance set out in the several counts of the petition are correctly stated therein.

"It is further stipulated that in this case the plaintiff in quoting the price of said coal to the several consignees named in the exhibits herein, instead of quoting f.o.b. at Myrick, quoted a price delivered to the consignee's stations, which quotation was based upon the price at Myrick plus the freight rate charged by the defendant; when the coal was received by the consignees such consignee paid defendant's agent the freight charges and forwarded the receipted freight bill to the plaintiff, to be credited on the price of said coal as part payment therefor, and then such consignee paid the plaintiff the difference between such freight bill and the quotation price.

"It is further stipulated that such coal was delivered by the plaintiff to the defendant for shipment in the usual and ordinary way without any direction or request by plaintiff as to what particular trains the same must be transported in, and that the defendant received and transported the same in the usual, ordinary course of business, on the usual train passing over defendant's road.

"It is further agreed that the trains in which the defendant hauled said cars of coal contained other cars and shipments consigned from points within this State to points without the same, from points without the same to points within this State, and from points from without this State through this State to points in other states."

Judgment was rendered for the plaintiff on each count of the petition, aggregating the total sum of $14,308.77, from which this appeal is taken.

I. The statement filed by the appellant in pursuance of the terms of Section 280, Revised Statutes 1909, and the rules of this court made in pursuance thereof, closes withConstitutional a clear and concise presentation of the issues asStatute. follows:

"It is conceded that the rates charged, the distances between the different points and the amount of coal shipped, are as stated by the plaintiff, and the issues of law before this court are:

"1. Whether the plaintiff paid the freight on the several shipments and was in fact damaged as alleged in its petition and is the proper party to bring this action.

"2. Whether, regardless of who in fact paid the freight, the respondent has been damaged and is therefore entitled to recover.

"3. Whether the sections of the statute on which this action is based are constitutional.

"The latter proposition has been decided adversely to the contention of the appellant by this court in prior actions between the same parties, but the question as to whether or not plaintiff can recover for damages, if any, sustained by the consignee who in fact paid the freight, has never been passed upon by this court."

Notwithstanding this frank declaration the appellant has favored us with an elaborate brief upon the constitutional questions raised in the trial of the case which are the same in all respects as those involved in the following cases: McGrew v. Missouri Pacific Railway Company,177 Mo. 533; Ib v. Ib, 230 Mo. 496; Ib v. Ib, 258 Mo. 23; and McGrew Coal Company v. Ib, 178 S.W. 1179. In each of these the questions were raised by similar pleadings and were presented to the court for determination in the same manner in which they are raised and presented here. They were all against this appellant and in the last case cited this respondent corporation was the plaintiff and we disposed of it in our opinion with the statement that "the questions presented have all been considered heretofore with great care and at great length, and consistently have been decided against appellant," who is also the appellant in this case. That case was taken by writ of error to the Supreme Court of the United States, where the rights claimed by appellant under the Constitution of the United States were adjudged against it and our judgment affirmed. [Missouri Pacific Railway Company v. McGrew Coal Co., 244 U.S. 191.] For these reasons we must take the appellant at its word, and consider only the unadjudicated question.

II. Has the plaintiff, in contemplation of law, been injured by the exaction of the illegal charge? If so, may he maintain this suit to recover it back? This depends upon the stipulation upon which the case was submitted.

The stipulation stated that the plaintiff, instead of quoting to his customer a price for the coal f.o.b. at Myrick, quoted a price delivered at its destination. This means that the coal was sold to the consignee f.o.b. at the station of destination. When the coal was delivered the purchaser paid the illegal freight bill and settled his account with the plaintiff by sending him the defendant's receipt for the amount of freight paid, with the balance in cash. The transaction of sale stated in the stipulation was a simple one. According to its terms the less the purchaser of the coal paid for freight the more the plaintiff received in net proceeds from the transaction. The more he paid for freight the less the plaintiff received for his coal.

The stipulation states that plaintiff's quotation to the purchaser "was based upon the price at Myrick plus the freight rate charged by the defendant." This is probably true. The value of all commodities is based on all the conditions of cost, including transportation. When the consignee of this coal sold some or all of it to his customer, he no doubt based the price upon the cost of the coal in his yard including the illegal charge paid to the defendant, but this would not transfer the right to bring the suit for the overcharge. We cannot see that the plaintiff stands on any different footing from that upon which it would stand had it paid the freight in advance. While it would, no doubt, then take it into consideration as an element in the selling price of his commodity, that fact would have no effect upon the liability of defendant for the illegal exaction.

This litigation illustrates the just and salutary operation of the rule. The defendant had the physical power to enforce its illegal claim by withholding the delivery. The right of each consumer upon whom the burden ultimately falls to pursue the tortuous course of litigation which has resulted from these transactions would be a barren one. The remedy, to be effective, must lie with the shipper with whom the contract is made, and the amount of the recovery measured by the amount which he is, either directly or through his consignee, forced to pay. This conclusion is well supported by the authorities. [Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 221 F. 890; Burgess v. Freight Bureau, 13 I.C.C. 668, 680; Jennison Bros. v. Dixon,133 Minn. 268; Service Lumber Co. v. Railway Co., 67 Or. 63, 76; Railroad Co. v. Manufacturing Co., 51 Ill. App. 151; Andalman v. Railway, 153 Ill. App. 169; Railroad Co. v. Crossley,128 Ga. 35.]

In the foregoing cases, as well as in many others which they cite, this very point is discussed and expressly determined. We call attention to the Georgia case, because it presents the question in a striking light. The rate charged, collected from the consignee, and charged to the consignor, who paid it, was not an illegal rate, nor so far as appears, an unreasonable one. It was simply in excess of a rate made by agreement between the consignor and carrier, and of course liquidated the amount of the excess.

The appellant cites Railroad v. Coal Mining Company,230 U.S. 184, to sustain its position in this case. In disposing of that case in its application to this we can do no better than to quote from the opinion of the same court upon the same subject in Southern Pacific Co. v. Darnell-Taenzer Co., 245 U.S. l.c. 534, as follows:

"The cases like Pennsylvania R.R. Co. v. International Coal Mining Co., 230 U.S. 184, where a party that has paid only the reasonable rate sues upon a discrimination because some other has paid less, are not like the present. There the damage depends upon remoter considerations. But here the plaintiffs have paid cash out of pocket that should not have been required of them, and there is no question as to the amount of the proximate loss. See Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 429; Mills v. Lehigh Valley R.R. Co., 238 U.S. 273."

We have expressly held the long-and-short-haul provision of Section 12 of Article 12 of the State Constitution to be self-enforcing. [McGrew v. Railroad, 230 Mo. 496; Ib v. Ib,258 Mo. 23; McGrew Coal Co. v. Ib, 178 S.W. 1179.] It liquidates the amount of the overcharge at the difference between the charge exacted and paid for the shorter haul and the rate charged for the longer haul. If it is wrongfully exacted and paid, it is necessarily the amount to be recovered back. The judgment in this case was rendered accordingly, and is affirmed. Walker C.J. andWilliams, Blair and Williamson, JJ., concur; Goode andWoodson, JJ., dissent; Graves, J., not sitting.