Bond v. Wabash, St. L. & P. Ry. Co.,

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BECK
• Citation: 67 Iowa 712,25 N.W. 892
• Parties: BOND v. WABASH, ST. L. & P. RY. CO.
• Decision Date: 15 December 1885

67 Iowa 712
25 N.W. 892

BOND
v.
WABASH, ST. L. & P. RY. CO.

Supreme Court of Iowa.

Filed December 15, 1885.

Appeal from Pottawattamie circuit court.

Action to recover for refusal of defendant to transport corn for plaintiff, and for failure of defendant to transport corn with promptness, by reason whereof it sustained injury. There was a verdict and judgment for plaintiff. Defendant appeals.

[25 N.W. 892]

D. H. Solomon, for appellant, Wabash, St. L. & P. Ry. Co.

Sapp & Pusey, for appellee, N. J. Bond.

BECK, C. J.

1. The petition is in five counts. The first alleges the corporate capacity of the defendant, and the route and extent of its railroad. The second alleges that defendant refused to furnish cars for transportation of corn from Mineola, a station on defendant's railroad, to St. Louis, which plaintiff had contracted to deliver upon the cars at Mineola. The third count alleges that defendant refused to furnish plaintiff cars to transport corn from Mineola to Toledo, Ohio, St. Louis and Kansas City, Missouri, although defendant was then furnishing cars to other persons for transportation of property to the cities just mentioned. The fourth alleges that defendant refused to draw cars of the Kansas City, St. Joseph & Council Bluffs Railroad Company from Council Bluffs to Mineola, to be there loaded with plaintiff's corn, and to be transported to Council Bluffs, and there delivered to the Kansas City, St. Joseph & Council Bluffs Railroad Company, to be hauled to the places of their destination. The fifth count alleges that plaintiff shipped upon defendant's railroad, to be transported to Toledo, Ohio, certain corn, which was injured by unreasonable delay, caused by the neglect of defendant. The petition claims to recover upon the second and fifth counts actual damages, and upon the third and fourth treble damages. The jury found the damages as claimed by plaintiff,--actual damages on the second and fifth counts, and treble damages on the third and fourth.

2. Plaintiff claims to recover upon the third and fourth counts under chapter 77, § 13, Acts Seventeenth Gen. Assembly, (Miller's Code, 35.) The case was tried on the theory that upon the case made by these counts and the evidence plaintiff is entitled to recover under that provision treble damages, the court so holding in instructions and in other rulings. So much of the section of the act referred to as is necessary to quote is as follows: “Any railroad corporation which shall violate any of the provisions of this act as to extortion or unjust discrimination shall forfeit, for every such offense, to the person, company, or corporation aggrieved thereby, three times the actual damages sustained or overcharges paid by the said party aggrieved, together with the costs, and reasonable attorney's fees to be fixed by the court.” The provisions, the violation of which subjects a railroad company to the penalty prescribed, are found in the following sections of the statute:

“Sec. 10. It shall be the duty of any railroad corporation, when within their power to do so, and upon reasonable notice, to furnish suitable cars to any and

[25 N.W. 893]

all persons who may apply therefor, for the transportation of any and all kinds of freight, and to receive and transport such freight with all reasonable dispatch, and to provide and keep suitable facilities for receiving and hauling the same at any depot on the line of its road; and also to receive and transport in like manner the empty or loaded cars furnished by any connecting road, to be delivered at any station or...