The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1857.
The Larabee Flour Mills Company, Plain
tiff,
vs..
The Missouri Pacific Railway Company,
Defendant


tiff,
The Missouri Pacific Railway Company,
Defendant
Original Proceeding in Mandamus.
Judgment for Plaintiff for Damages.
Syllabus By the Court. Porter. J.
l. ~ original proceedings in mandamuS
to compel a railway company to furnish
transfer services to a shipper judgment
was given for the plaintiff and the per
emptory writ allowed. ThereupOn the de-
PENDANT sued out a writ of error to the
Supreme Court of the United States
where the Judgment was affirmed. The
plaintiff then filed in this court a claim
for damages. Held,
1. The Judiciary Act Grew. Stat U. s.
was not intended to affect and does not
affect the jurisdiction of this court.
2. The jurisdiction of this court in
mandamus attaches upon the issuance of
the alternative writ, and continues I'M
abated, not only until the peremptory
enforced.
did not operate to remove the suit from
the Supreme Court of the State to the
Supreme Court of the United States but
merely operated to bring up the record
for review.
4. The allowance of the writ of error
did not supersede the judgment; the TAX
ing Of the bond brought about the super
sedeas.
5. The damages in mandamus proceed
ings comprehended by section 723 of the
code Gen. Stat. 1909, Sec. $3.50 are the in
juries sustained as the natural and prob
able consequences of the wrongful re-
fusal to comply and the expenses reason
ing compliance with the alternative writ,
including reasonable attorneys fees IN
this court and in the Supreme Court OF
the United States.
6. Damages incurred prior to the is
suance of the alternative write cannot be
recovered.
recovered where the amount of such loss
and the fact that it resulted by defend
ants refusal to comply with the alterna-
tive writ can be determined by the court
with reasonable certainty.
8. In such an action where the defend
ant claims in mitigation of damages that
plaintiff might and should have COM
PEELED 1t to furnish cars by serving a
written demand and making the cash de-
rested upon the defendant to show that it
stood ready to furnish the service upon
such demand.
9. In view of the undisputed character
and Importance of the litigation, the SER
vices performed and the results obtained,
the amounts allowed by the commissioner
as attorneys fees for plaintiffs attorneys
10. The defendant claimed that plaintiff
was not entitled to recover any damages
because during the ime the damages
arose plaintiff was a member of an or
ganization in violation of the antitrust
laws. Held. that the plaintiff was en-
titled to recover whatever damages 1t
sustained by the wrongful suspension OF
the transfer service unless the service
sought to be enforced by the mandamus
was necessary part of the purposes OF
such unlawful trust or combination.
Johnston, c. J.. Burch. J., Mason, j.
Smith, j., and West, J., concurring.
Benson, J., dissenting as to one item.
A true copy.
Attest: D. A VALENTINE
lSeall Clerk Supreme Court.
No. 1888.
The Shawnee Fire Insurance Company,
APPELLANT
James H. Cosgrove and Lyman E. Han
cock, Appellees.
Appeal from Johnson County.
AFFIRMED.
| Syllabus By the Court. Smith, J.
| l. Where a loss by fire is occasioned
to insured property by a wrongdoer and
the loss exceeds the amount of insurance,
+ the insured owner is the only proper par
ty to recover damages from the wrong
doer.
2. In such case if the insured brings
an action for the recovery of the loss
from the Wrongdoer and the insurer is in
formed of the tendency of the action,
that the insured does not wish to repre-
sent the interests of the insurer and
tween the insured and the Wrongdoer, 1t
| is the duty of the insurer to intervene in
the action and protect his own interests.
| 3. Where in such case the insured ac-
cepts, on settlement, damages from the
wrongdoer which, added to the amount
| of the insurance, is less than the amount
of his loss and expenses of litigation.
the insurer, having made no effort to in
tervene and protect his own rights, can
recover nothing from the insured.
! All the Justices concuEring-
A true copy.
! Attest: d. A. VALENTINE,
| ISeaLl Clerk Supreme Court