Baker Wire Co. v. Chicago & North-Western Railway Co.
| Decision Date | 10 October 1898 |
| Citation | 76 N.W. 665,106 Iowa 239 |
| Parties | BAKER WIRE COMPANY, Appellant, v. CHICAGO & NORTH-WESTERN RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. A. SPURRIER, Judge.
ACTION to recover treble damages for overcharges exacted on freight shipments over defendant railway. There was a demurrer to the petition, which was sustained. Plaintiff electing to stand on its petition, judgment was rendered in favor of defendant for costs. Plaintiff appeals.
Affirmed.
Dudley & Coffin for appellant.
Hubbard & Dawley for appellee.
This action was begun on December 24, 1891. On the ninth day of November, 1895, an amended and substituted petition was filed. It contains one hundred and fifty-nine separate counts, each count setting forth a particular shipment of freight, the amount of the overcharge, and a claim for treble the amount of such overcharge as damage. The total damages are laid at one thousand four hundred and nine dollars and twenty-two cents. There is also a claim in the petition for ten dollars attorney's fee on each count. The shipments mentioned began on July 11, 1888, and the last one was made on February 1, 1889. The demurrer is based on the ground that plaintiff's cause of action is barred because it is for a statute penalty that accrued more than two years before suit begun. If this is an action to recover a statute penalty, it is conceded that the ruling below was correct. Subdivision 1 of section 2529 of the Code of 1873 fixes the period of two years after the cause of action accrues within which such action must be brought. The question we have to determine, then, is, what is the character of this action? Is it to recover a penalty, or merely to secure compensation for injuries suffered? The action is brought under chapter 28, Laws Twenty-second General Assembly. It is provided in this act that the board of railway commissioners shall fix reasonable and maximum rates for the transportation of freight. This, the petition alleges, was done; and the ground of complaint is that defendant exacted a greater amount than was so fixed on each of the shipments of which complaint is made. Section 9 of this act is as follows: "That in case any common carrier subject to the provision of this act shall do, cause to be done, or permit to be done, any act, matter or thing in this act prohibited, or declared to be unlawful, or shall omit to do any act, matter or thing, in this act required to be done such common carrier shall be liable to the person or persons injured thereby, for three times the amount of damages sustained in consequence of any such violation of the provisions of this act, together with costs of suit and a reasonable counsel or attorney's fee to be fixed by the court in which the same is heard, on appeal or otherwise, which shall be taxed and collected as part of the costs in the case: provided that in all cases demand in writing on said common carrier shall be made, for the money damages sustained, before suit is brought for recovery under this section, and that no suit shall be brought until the expiration of fifteen days after such demand."
II. A question similar to that raised here has been twice before presented to and passed upon by this court. Koons v. Railroad Co., 23 Iowa 493; Herriman v Railway Co., 57 Iowa 187, 9 N.W. 378. The first of these cases arose under section 6, chapter 169, Laws Ninth General Assembly, which was as follows: "Any railroad company hereafter running or operating its road in this state, and failing to fence such road on either or both sides thereof against live stock running at large at all points where said roads have the right to fence, shall be absolutely liable to the owner of any live stock injured, killed or destroyed, by reason of the want of such fence or fences as aforesaid, for the value of the property so injured, killed or destroyed, unless the injury complained of is occasioned by the willful act of the owner or his agent, and in the cases contemplated by this section, in order to recover, it shall only be necessary for the owner of the property to prove the injury or destruction complained of: provided, that in case the railroad company liable under the provisions of this section, shall neglect or refuse to pay the value of any property so injured or destroyed, after thirty days' notice in writing given, accompanied by an affidavit of the injury or destruction of said property to any officer of the company or any station or ticket agent employed in the management of its business in the county where such injury complained of shall have been committed, such company shall in any action brought to recover therefor, be held liable to pay double the value of the property injured, killed or destroyed as aforesaid." It was held that this statute did not impose a penalty, but simply fixed the measure of plaintiff's compensation in the event of his being compelled to bring suit. The Herriman Case involved the construction of a statute similar in purpose to the one that affords foundation for this action. Laws Fifteenth General Assembly chapter 68. This statute, among other things, fixed maximum rates for freight charges by railway companies. Section 11 thereof is in these words: "Any officer, agent, or employee of any railroad company, person, or corporation, operating a line of railroad within this state, who shall violate or be a party to the violation of any of the provisions of this act, or instrumental therein, shall be guilty of a misdemeanor, and shall, on conviction thereof, be punished for every such offense by fine not less than twenty dollars, nor more than one hundred dollars, or by imprisonment not less than five nor more than thirty days; or any such person, corporation, or railroad company as aforesaid, who shall authorize, direct, cause, permit, or allow any violation of the provisions of this act by any officer, agent, or employee, such railroad company, person or corporation shall forfeit and pay to the person injured five times the amount, compensation, or charge illegally taken or demanded, or five times the amount of damage caused, as the case may be, to be recovered with a reasonable attorney's fee by such person in a civil action in any court or before a justice of the peace, as the case may be, of this state; and if an appeal be taken from...
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