33 Mo. App. 509 | Mo. Ct. App. | 1889
On the thirtieth day of September, 1887, the plaintiff, filed an amended petition in this cause, the first count of which is as follows, to-wit :
“Por cause of action plaintiff states, that at the times hereinafter mentioned, the defendant was and that it still is a corporation, owning, operating and managing a certain railroad in the state of Missouri, extending from the town of Watson to the City of Kansas in said state; that on or about the seventeenth day of May, 1883, plaintiff, delivered to defendant at Watson, a station on defendant’s railroad, in Atchison county, Missouri, to be carried, and defendant did carry for plaintiff one other load of live stock, to-wit, hogs, from said Watson, Missouri, to the City of Kansas, 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 one hundred and twenty-five miles, and less than one hundred and thirty-eight miles ; that the rate prescribed by sections 833 and 834 of the Revised Statutes of the state of Missouri, for carrying said car-load 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, then not exceeding two dollars for such fractional part per car-load, which was the highest rate that defendant was entitled by law to charge for said shipment,
Defendant interposed by answer, among other things, the plea of the statute of limitations, that the action had not accrued within three years. A demurrer to this plea was sustained, and this action of the trial court brings up the principal question in the case. The cause of action accrued to plaintiff within five years, but did not accrue within three years. So if the action is based on the statute, it being of a penal character, the three-years limitation applies to the case ; if it is not so based, five years is the limit.
Defendant’s contention is double: (1) That the statute has repealed the common law and the only remedy for an overcharge by a carrier is that given by the statute ; (2) that whether this be true or not, the petition is, as a matter of fact, bottomed on the statute. It was also incidentally urged by defendant that the
I. In my opinion, article 3, chapter 21, Revised Statutes, 1879, concerning railroad classification and charges, repeals the common law, if' not under the second, certainly, at least, under the third; reason set out above. By the last clause of section 834, charges are to be made from distances computed from the point
Again, section 835 declares that the carriers shall not recover more than the charges specified, though more might be reasonable under the common law. It furthermore declares that a .carrier shall not recover any compensation in .any case of overcharge, whereas at common law he could recover what was reasonable, notwithstanding the overcharge ; and a party defending on the ground of overcharge would have to pay to the carrier all over the excess claimed. In these respects the two laws are repugnant, and the provisions in these respects cannot stand together.
But however the matter' of repugnance may .be considered, the legislature, it seems to me, has revised the whole subject of the carriage of freight and has evidently intended that- the provisions of the statute shall be a substitute for the common law on this subject, this being, as we have said, one of the frequent ways in which a repeal may be had. State v. Roller, 77 Mo. 120; Norris v. Crocker, 13 Howard, 429 ; United States v. Tynen, 11 Wall. 88 ; United States v. Claflin, 97 U. S. 546.
The statute, though more specific, covers the same matter as the common-law, and provides minutely for all questions which may arise concerning compensation for the transportation of freight. Sedgwick on Statute Law, page 76, says that sometimes “doubts will arise as to whether the ¡statute does or does not intend to take away the common-law remedy ; and the answer will depend upon the subject-matter.” He illustrates this statement by drawing on the case of Salem v. Hays, 5 Cush. 458, where it is said that if a person should be guilty of certain injuries by breaking down gates or digging up earth, should pay a fine of fifty dollars, the common-law. remedy for such injury would remain, upon
The subject-matter in question here is the charge which a carrier may make for the tran sportation of freight. If it is apparent that this whole matter has been made the subject of statutory law, then it must follow, under the authorities cited and the rules therein announced, that the statute was intended as a revision of, or a substitute for, the common law. The freights are classified and the rates of charges prescribed, together with a remedy which in no case can be inadequate, for the provision of the statute is, that the shipper may recover not only the excess' which he has paid, but three times the excess. This statute is not like those which provide for the recovery of a stated penalty which may, or may not, be sufficient in amount to afford the shipper adequate redress. Thus a penalty of two hundred dollars would not afford adequate redress to a shipper who had paid five hundred dollars in excess of the legal rate. This statute is like that mentioned in Wiley v. Tale, 1 Met. 553, where the court says that, “being an action given to the party aggrieved only, is rather in the nature of a remedial suit; though by allowing a plaintiff to recover three-fold of the amount of the interest paid, the legislature intended to give an ample and liberal remedy to the party aggrieved, and at the same time, that the judgment should, in its character, be exemplary, and to a certain extent penal.” In Michigan, the statute on usury provided that “the party paying the usurious interest may recover back three-fold the amount of the excess of interest paid, in an action of debt; provided such action shall be prosecuted within' one year from the time when such interest shall have been paid.” And it was held that this statute superseded the common law and gave the only remedy to the complaining party. Thurston v. Prentiss, 1 Manning, 193. So under a Massachusetts statute like that of Michigan it was held that an action of trespass on, the case would not lie. Wiley
In United States v. Claflin, supra, where it is held that if a later statute is intended as a substitute for a former statute it operates as a repeal, an illustration, taken from an English case, is given, where an act imposing a penalty of 200 £, upon the undertaker of any gas-works for fouling any stream, etc., to be recovered by the person into whose water the foul substance should be conveyed, was held to repeal by implication a former act describing the same offense and imposing the same penalty, to be sued for by any common informer, the two penalties being held not to be cumulative. So in this state it was held, in an opinion by Henky, J. (State v. Boogher, 71 Mo. 631), that sections 1591, 1592, 1593, and 1644, Revised Statutes, 1879, repeal the common law of libel in this state, and some of the authorities there relied upon are those I have cited here. As before remarked, that, while the rule I have adverted to is nowhere disputed, there is not full accord in its application. Two cases, much relied upon by plaintiff’s counsel as authority in his behalf, are Graham v. Railroad, 53 Wis. 473, and Heiserman v. Railroad, 63 Iowa, 732. The first of these cases contains much refined reasoning, some of which does sustain the theory advanced by counsel at the argument, but the point of decision in that case is not involve d in the controversy here. That case simply determined that, where under a-statute regulating carriage of freight and prescribing penalties and remedies for overcharges to shipper, a shipper had been overcharged and had demanded back
II. But if we are in error in our conclusion as to the foregoing, the case must still be adjudged against the plaintiff, for the reason that the petition is, in fact, based on the statute and not on the common law; nor what is, in effect, the same thing, can it be considered as merely setting out the facts upon which a remedy “at large ” may be had. The fact that it does not contain a prayer for the penalty (treble damages) given by the statute, is no evidence that it is not based on the statute. It is only necessary that the facts essential to support the action under the statute should be stated in the body of the petition. It compasses every test of a statutory action, it makes every allegation necessary to a case under the statute, not only by sections, but to the detail of its requirements. If this petition is not based on the statute, I am at a total loss to know how such question is ever to be determined. Though not containing a prayer for treble the excess of the charge, yet under the practice in this state treble the verdict could nevertheless be entered on a motion addressed to the court after verdict. This, indeed, is held to be the
The judgment is reversed and the cause remanded.