
    CASE 22. — ACTION BY HARRY ANDERSON AGAINST THE PALMER TRANSFER COMPANY FOR AN INJUNCTION.
    January 7.
    Palmer Transfer Co. v. Anderson
    Appeal from McCracken Circuit bourt.
    W. M. Reed, Circuit Judge.
    Judgment for plaintiff. Defendant appeals.
    Affirmed.
    Carriers — Regulation—Use of Carrier’s Premises. — A contract by which, a railroad gave a transfer company the exclusive use of a part of its station grounds along which there was a gravel walk, and which was most convenient to the trains on which the greater number of passengers arrived and departed, so that such passengers were compelled to walk 150 feet past the transfer company’s cabs before reaching a place where other cabs could stand, gave the transfer company a practical monopoly of the transfer business, and was void.
    WHEELER, HUGHES & BERRY for appellant.
    CRICE & ROSS of counsel.
    POINTS AND AUTHORITIES.
    1. If the appellee has any cause of complaint against anybody, such cause of complaint did not .and does not exist against the appellant, consequently the appellee has sued the wrong party as the allegations of the petition and amended petition will show and the appellant’s demurrer to the petition should have been' sustained.
    
      2. The- contract existing between the Illinois Central Railroad Company and appellant is not void on account of being contrary to public policy, but is a valid contract and one which the appellee has no right in law to attack, because the only duty owing by the Illinois Central Railroad Company is to the traveling public and it owes no duty to the appellee and he had and has no right to use any part of the railroad company’s grounds around its depot except as a licensee and by license from the railroad, which license is revokable by the railroad, either as to the whole of the approaches to the depot or to any part of same, and which was revoked by the railroad to that part covered by the contract with the appellant at the time such contract was made. (Hedding et .al. v. Gallager et al., 57 Atlantic Reporter, 225. And cases therein cited.)
    BRADSHAW & BRADSHAW, for appellee.
    We respectfully submit that the lower court committed no error in perpetuating the injunction as prayed for by the appellee and the case should be affirmed on the appeal. But on cross appeal the court in our opinion committed an error in refusing to adjudge the appellee any damages in view of the fact that he established the damages sustained on account of the wrongful acts of the appellant and which the appellant failed to deny or disprove and we submit that the holding of the lower court should be reversed on the cross appeal with directions to award the appellee damages in the sum prayed for in his petition.
    LIST OF AUTHORITIES CITED FOR APPELLEE.
    McConnell v. Pedigo and Hayes, 92 Ky. 465; Mon. Union Railroad Company v. Langolis, 9 Mon. 419, 8 L. R. A. 753; Kalamazoo Cab and Buss Company v. Sootsma, 84 Mich. 194, 22 A. St. R. 93, 10 L. R. A. 819; Indianapolis Railway Company v. Dohn, 153 Ind. 10, 58 N. El 937, 45 L. R. A. 427; Old Colony Company v. Tripp, 147 Mass. 43, 9 A. St. R. 661, 17 N. E. 89 (see dissenting opinion;) Miss-, v. Reed, 43 L. R. A. 134 (Decided Dec. 189S); Sandford v. Calamissa Railroad, 24 Pa. St. 278; Cravens v. Rogers, 101 Mo. 247, 14 S. W. 106.
   Opinion op the Court by

Wm. Rogers Clay, Commissioner

Affirming.

Plaintiff, Harry Anderson, tine owner of a 'line of cabs, busses, and baggage wagons in the city of Paducah, instituted this action against the defendant, Palmer Transfer Company, a corporation engaged in a similar business, to enjoin the latter from interfering with him in the use of a certain plot of ground adjoining the approach ti> the Union Depot in Paducah, and also to recover damages for being deprived of the right ti> úse the plot of ground. Defendant’s demurrer to the petition being overruled, it then filed answer, denying the allegations of the petition and (¿aiming that it had the right to use the plot of ground in question under and by virtue of a contract which it made with the Illinois Central Railroad Company, by the terms of which it agreed to meet all incoming and outgoing trains with its cabs and busses, and serve the traveling public in an orderly manner, and further bound itself to transport passengers and baggage from all parts of the city of Paducah at the rate of 25 cents for each passenger and 25 cents for each piece of baggage, and also to perform certain other covenants mentioned in the contract, all of which defendant alleged it had fully and faithfully performed. By reply plaintiff alleged that the contract between the defendant and the railroad company gave to the defendant the exclusive use of a large part of the approach 'lying nearest to the depot and best equipped with improved walks, and thereby gave to the defendant a monopoly of the passenger and baggage carrying business to and from the depot, that on this account the contract relied upon by the defendant was against public policy, and therefore, null and void. By amended petition, the plaintiff also' charged that it was the duty of the railroad company to provide comfortable and convenient accommodations for the traveling public, and that it had failed to perform that duty to the public by granting the contract in controversy, which created a practical monopoly of the passenger and baggage carrying business. Depositions were taken, and the case submitted to the chancellor, who granted the injunction prayed for by plaintiff, but declined1 to give him any damages. Prom that judgment, the Palmer Transfer Company prosecutes this appeal.

The facts in this case are as follows: The Illinois Central Railroad Company and the Nashville, Chattanooga & St. Louis Railway Company have a union station in the city of Paducah: Leading southward from Caldwell street towards the depot building there is a roadway or approach 64 feet wide and 315 feet long. A platform or walkway extends along the south, end of the roadway its entire width — 64 feet. A sidewalk or platform of gravel or crushed stone, 15 feet in width, with concrete or stone curb, extends along the west side.of the roadway its entire length of 315 feet. The roadway and the depot are between the main tracks of the two railroad companies. The passengers board or alight from the Illinois Central trains on the west side of the depot and roadway, and from the Nashville, Chattanooga & St. Louis trains on the east side thereof. The space occupied by the .Palmer Transfer Company is on the west side of the roadway. This space is 32 feet wide, and extends from the south end of the roadway towards Caldwell street 150 feet. The space being taken out of the driveway leaves 32 feet on the east side and 115 feet on the west side that is open to public use. Out of the 32 feet, however, about 8 feet is occupied by the street car line, and, taking into consideration the danger of being near the street car line or the railroad tracks, the space left next to the depot building is about 20 feet. This 20 feet is fairly convenient of access and approach to the Nashville, Chattanooga & St. Louis trains, but by far the larger portion of the traffic to and from the union depot is over the tracks of the Illinois Central. In order for passengers from the Illinois Central to reach the cabs or busses of those transfer men who are not permitted to occupy the space in question, they must proceed down the platform and pass by the cabs or busses of the Palmer 'Transfer Company for a space of 150 feet.

Plaintiff Anderson testified that he had on an average three cabs to meet trains at the union station, and that the Palmer Transfer Company had four; that it was much more convenient for passengers leaving the union station to use the carriages of the Palmer Transfer Company because these carriages were closer, and a portion of the approach set aside for that company had a gravel walkway along its entire length, from which passengers could step into its carriages ; that this walkway was not constructed by the Palmer Transfer Company for its own convenience, but was a part of the general depot improvements and conveniences provided by the railroad company for the public; that, in order for a passenger to get to the carriages- of the appellee or any other cabmen except the Palmer Transfer Company, they would have to walk a distance of 150 feet past a long line of carriages of appellant; and that, under ordinary circumstances, no passenger would do this. He further stated that he had been in the transfer business since May, 1902, during all of which time the Palmer Transfer Company had excluded him from the use of that portion of the approach in controversy, and that his loss on this account amounted to at least $2 per day up to the 'day of filing the suit. The witness further testified to the fact that the Palmer Transfer Company had changed the post dividing the space occupied by it from the rest of the roadway, and he was denied admittance to the space so occupied by it, and .upon one occasion when he had entered this space a warrant was issued against him by the officers of the Palmer Transfer Company.

For the defendant R. L. Palmer testified that his company had transfer agents on the various trains, and that the principal part of his business consisted in-carrying passengers and the baggage of passengers who had previously contracted with its train agents. Witness produced the contracts between his company and the railroad companies, and made them a part of his deposition. He stated that there was plenty of room for the busses and wagons of other transfer agents to occupy. Witness further testified that his company might secure more business by having the contracts giving the company the right to occupy the place in dispute.

In the case of McConnell v. Pedigo & Hays, 92 Ky. 465, 13 Ky. Law Rep. 689, 18 S. W. 15, this court had under consideration a question similar to the one involved in the ease at bar. In that case the railroad company granted to McConnell, to the exclusion of all other persons engaged in a like business, the right to' come upon its depot grounds in Glasgow, Ky., with his vehicles for the purpose of receiving and depositing passengers and freight. The contract was being carried'out by McConnell when the firm of Pedigo & Hays undertook to transfer passengers to and from the depot, and claimed the right to stand their hacks upon the grounds near and at the depot, when in so doing they did not interfere with the business of the railroad company. McConnell sought an injunction against Pedigo & Hays, and, his petition being dismissed, he appealed to this court. It was here held that a regulation of a railroad that discriminates by driving from its depot those 'who are engaged in a public employment and whose duty it is to provide for their guests and the traveling public, resulting in a monopoly of the particular business, is unauthorized by the charter of a railroad company, and in palpable violation of the rights of others. While it may be admitted that the English rule and the rule of several other States is different from that announced above (Barker v. Midland Railway Co., 86 English Common Law Reports, 46; Old Colony Railroad Co. v. Tripp, 147 Mass. 35, 17 N. E. 89, 9 Am. St. Rep. 661; Hedding v. Gallagher, 72 N. H. 377, 57 Atl. 225, 64 L. R. A. 811), yet the courts of several States hold to the view adopted by this court (Montana Union Ry. Co. v. Langlois, 9 Mont. 419, 24 Pac. 209, 8 L. R. A. 753, 18 Am. St. Rep. 745; Kalamazoo Cab & Buss Co. v. Sootsman, 84 Mich. 194, 47 N. W. 667, 10 L. R. A. 819, 22 Am. St. Rep. 693),' and in the recent case of Indianapolis Railway Co. v. Dohn, 153 Ind. 10, 53 N. E. 937, 45 L. R. A. 427, 74 Am. St. Rep. 274, the case of McConnell v. Pedigo & Hays, supra, was cited with approval. That being the case, we see no reason for changing the rule announced by this-court.

Counsel for appellant, however, insist that the rule laid down in the case of McConnell v. Pedigo & Hays has no application to this case, because abundant space is left for Anderson and other hackmen, and that the contracts between appellant and the railroad companies do not create a monopoly. We confess, however, that we are unable to differentiate this case from that cited. While there is some space still left for Anderson and the other haekmen to occupy, it is-so inconviently located with reference to the larger part of the business of carrying passengers and baggage that the giving to appellant of the space occupied by it constitutes such a/preference over other transfer men as to afford it a practical monopoly of the business. There is, in effect, no difference between giving a transfer company the exclusive right to occupy the depot grounds and the right to occupy that portion thereof which necessarily results in its securing by far the larger share of the business. We therefore conclude that appellant’s contracts, operating as they do to give it a practical monopoly, are null and void, and that appellant has no right to occupy the space in question to the exclusion of appellee and other haekmen.

We are inclined to the opinion that the chancellor did not err in refusing to,allow the plaintiff damages.

For the reasons given, the judgment is affirmed.  