Scammon, Bailey & Co. v. Kansas City, St. Joseph & Council Bluffs Railroad

Ellison, J. —

Plaintiffs filed their petition against the defendant containing twenty-nine counts. During the progress of the trial counts 25 to 29 inclusive were dismissed, and counts 7, 8, 9, 13 and 24 were withdrawn, from the jury by the court. The first count of said petition, omitting formal allegations, is as follows.

“Plaintiffs for a first cause of action state that, at the time hereinafter mentioned, the defendant was and still is a corporation owning, operating and managing a certain railroad in the state of Missouri, extending from the town of Phelps City, in said state, to the city of St. Joseph in said state. That on or about the thirtieth day of November, 1886, plaintiffs, as partners by the' style of Scammon, Bailey & Co., delivered to defendant at Phelps City aforesaid, a station on defendant’s railroad in Atchison county, Missouri, to be carried, and defendant did carry for plaintiffs, one certain carload of live stock, to-wit: One carload of hogs from said Phelps City, Missouri, to the city of St. Joseph in said state of Missouri, over said railroad, owned, operated and managed by defendant as aforesaid. That the distance between the two places last mentioned was more than sixty-three miles and less than seventy miles. That the rate prescribed by sections 833 and 834 of the Revised Statutes of 1879 of the state of Missouri, for carrying said carload of hogs shipped as aforesaid, was not exceeding ten dollars for the first twenty-five miles, and not exceeding seven dollars for the second twenty-five miles, and four dollars for each additional twenty-five miles or fractional part thereof, unless the fraction be less than thirteen miles, and then not to exceed two dollars for such fractional part of twenty-five miles per carload. That said rates, as provided by sections 833 and 834 of said Revised Statutes, had, by the railroad commissioners of said state, been reduced to, and established at, the sum of nine dollars for the first twenty-five miles, thirteen dollars for fifty miles, fourteen dollars and fifty cents for sixty-three miles, sixteen dollars for seventy-five miles per carload, which was the highest rate defendant was by'law allowed to charge, and amounted for said shipment to the sum of sixteen dollars. That instead thereof, defendant wrongfully exacted, charged and received from plaintiffs the sum of thirty dollars for carrying said carload of hogs as aforesaid, being in excess of the legal rate aforesaid the sum of fourteen dollars. Wherefore, by virtue of the provisions of sections 835 and 844 of said Revised Statutes, plaintiff asks judgment for the sum of forty-two dollars, three times the amount of said excess so wrongfully charged and received by defendant, and for costs and all other and further proper relief.”

Several counts upon which plaintiff recovered were under section 844, Revised Statutes, 1879, and were identical with the one quoted, except as to dates and amount of charges. The remaining counts were under section 835. At the trial plaintiff failed to prove that any of the charges had been fixed by the railroad commissioners as provided by sections 842 and 844 ; but he was nevertheless permitted to recover on those counts along with the balance, as if they had been drawn under section 835. This we think was error. ■ The actions in those counts are grounded on the violation of a rate of charges fixed by the commissioners. They are based on section 844 of the statute, and were not proved. The cause of action covered by section 835 is a different cause of action from 844. Both are for overcharges of freight, it is true, but one is fixed by law while the other is fixed by the commissioners, and the penalties prescribed are different. The defendant seeing that it is charged with violating a rate fixed by the commissioners prepares to defend that charge ; perhaps relying upon the fact that the commissioners have, not fixed a rate, it makes no preparations to defend or establish its innocence of having in any manner violated any rate. Defendant denies a rate was fixed by the commissioners, which threw the burden on plaintiff to establish that allegation; failing to do so, they fail in their case, and should not have been permitted to recover without amending the petition.

There is a familiar course of decisions in this state that where a plaintiff sues under section 809, Revised Statutes, 1879, asking double damages for killing his stock, he cannot have a common-law recovery, though it would be based on the same act of the defendant. It was held to be a different cause of action, which, until an amendment of the statutes, could not be amended. For this error, the judgment must be reversed.

II. It appeared in testimony that in the different shipments made there were written contracts of shipment, most of which were not produced. The defendant objected to any oral evidence of the shipments and was overruled. We approve of the view taken in this respect by the trial court. The action is not based on the contract, nor is there any attempt to orally prove the contents of a written instrument. The action is for overcharges of freight, which we think "may be properly established by verbal testimony showing what those charges were. The action is not on defendant’s agreement whereby it is charged with having violated the terms thereof.

III. The point is made by defendant’s counsel that some of the shipments on account of which overcharges are alleged were from points in Missouri to points in Kansas and that, therefore, the Missouri statutes would not apply, it being interstate commerce and not within the power of the state to regulate. We would be willing to concede the point, if the facts justified the statement. The shipment was not made to a point in Kansas. The facts appear, to be these: The point of destination was Kansas City, Missouri; and the stockyards, where the cattle unloaded, extended into both the states of Missouri and Kansas, though the actual point of unloading was in Kansas and the consignment was to commission merchants whose place of business was across the state line in Kansas. The contract was for a, shipment to Kansas City, Missouri. That was the point of delivery and the place to which an overcharge is alleged to have been made, and any other place than that point was beyond the obligation of defendant. Any other place of delivery was merely, it may be reasonably supposed from the shipper’s testimony, for the convenience of the parties. We rule the point against the defendant.

The judgment will be reversed and the cause remanded.

All concur.