Clark v. Am. Express Co.

• Decision Date: 13 March 1906
• Parties: CLARK v. AMERICAN EXPRESS CO.
• Court: Iowa Supreme Court

130 Iowa 254

106 N.W. 642

CLARK

v.AMERICAN EXPRESS CO.

Supreme Court of Iowa.

March 13, 1906.

Appeal from District Court, Delaware County; Franklin C. Platt, Judge.

Action to recover the value of certain goods delivered to the defendant at Manchester, Iowa, for shipment to Colesburg or Osterdock, in the same state. Trial to a jury, directed verdict for defendant, and plaintiff appeals. Affirmed.Fred B. Blair and Bronson, Carr & Sons, for appellant.

Dunham, Norris & Stiles, for appellee.

DEEMER, J.

Plaintiff's petition is in two counts. In the first he alleges that defendant undertook to convey five cloaks which plaintiff's agent at Colesburg had sold for him, from Manchester, Iowa, to Colesburg, so as to reach plaintiff's agent the following morning, to wit, October 31, 1903; that defendant disregarded its contract, and did not deliver the same as agreed, as it could have done in the reasonable course of its business; that it received the goods from plaintiff at 5:05 p. m. October 30th, and that the car of a connecting carrier which operated its line through Colesburg did not leave Dubuque, Iowa, the place of transfer until 7:20 a. m. of the following day, being the only car which would carry the goods that day or until the following Monday. That defendant negligently, and in disregard of its contract, failed to deliver the goods to the connecting carrier before 7:20 a. m. the next morning after receiving them, and failed and neglected to deliver the same to plaintiff's agent at Colesburg, whereby plaintiff lost the sale of the cloaks, and was damaged to the amount of $64.50. It is further alleged that defendant's act was unlawful under section 2129 of the Code of Iowa, in that it purposely avoided continuous passage of the goods, and plaintiff asked judgment for three times the amount of damages sustained.

The second count is for a conversion of the goods due as is alleged to the fact that defendant received the goods and failed to deliver them to plaintiff's agent or to return the same to plaintiff, but retained and kept them in its possession; that part of the first count of the petition asking treble damages was stricken on motion of defendant. In an amendment to the petition it is alleged that defendant undertook to convey the goods from Manchester to Osterdock, Iowa. Defendant denied that it undertook to transport the goods from Manchester to Colesburg, alleged that it had no agent at that place, and that no connecting carrier had any agent there, all of which plaintiff well knew. Admitted that it received the goods at Manchester for transportation by it to Dubuque and by the United States Express Company, a connecting carrier to Osterdock, Iowa; said that it promptly performed its part of the contract and delivered the goods without unreasonable delay to the United States Express Company, at Dubuque, and that the goods were transported to Osterdock by the latter company, without unreasonable delay, reaching the latter place on Monday November 2, 1903; that plaintiff re-refused to receive the package either at Manchester or at Osterdock, and still refuses though often requested to do so. It denied that its agent undertook to deliver the goods on the morning of October 31st; and further pleaded that such agent had no authority to contract to deliver goods at Colesburg at any specified time. Upon these issues the case went to trial with the result above stated. There is a controversy over the record in the case, and a motion has been made to strike appellee's amended abstract, which sets forth a certain stipulation of facts said to have been made by the parties. As but part of this stipulation was offered in evidence by plaintiff, and as defendant offered no testimony but contented itself with a motion to direct a verdict after plaintiff closed his case, we do not think this stipulation in the form in which it appears should be considered further than as to the parts thereof introduced in evidence by plaintiff, and plaintiff's motion to strike the amended abstract must be and it is sustained, the costs thereof to be taxed to appellee.

The first ruling made by the trial court, which is challenged was upon the motion to strike parts of the petition. While there is some confusion in the record regarding the nature of this motion, due to certain amendments to the abstract which are scarcely intelligible, the point argued seems to be that the court erred in holding that an action for treble damages would not lie under the facts stated. Code, § 2130, authorizes treble damages for violation of the chapter of the Code in which is found sections 2125 and 2129. Section 2129, in substance, forbids any combination, contract, or agreement to prevent the carriage of freights from being continuous from place of shipment to place of destination. The claim made in the petition is that the acts charged against defendant were unlawful, in that defendant was purposely avoiding continuous passage of the goods received by it. No contract, combination, or agreement to prevent continuous carriage is charged, even by inference, and the motion to strike was properly sustained. But it is contended, and apparently for the first time in this court that under sections 2125 and 2130 plaintiff was entitled to treble damages. We might well refuse to consider that question, but, as the case is argued as if it were involved, brief reference will be made thereto. Section 2125 requires common carriers “according to their respective powers” to afford “all reasonable, proper, and equal facilities” for the interchange of traffic between their respective lines; and for the receiving, forwarding, and delivering of property to and from their several lines, and to and from other lines and places connected therewith. There is no allegation in the petition charging that defendant did not provide proper facilities for the interchange of traffic between it and the connecting carrier, or for the forwarding of property to other lines and places connected therewith. The only charge in this respect is negligence and breach of contract in failing to deliver the goods to the connecting carrier and failure, and neglect to deliver to plaintiff's agent at Osterdock or Colesburg as agreed. There being no allegation in the petition of failure to furnish “reasonable proper and equal facilities” or of “any combination contract or agreement to prevent continuous carriage” the motion to strike was properly sustained. The section of the Code relied upon are penal in character, and must be strictly construed. The case must be brought within the letter of the law, and nothing should be left to inference or intendment. Bond v. Wabash Co., 67 Iowa, 712, 25 N. W. 892;Hanks v. Brown, 79 Iowa, 560, 44 N. W. 811.

2. Reduced to its last analysis, plaintiff's case is bottomed upon two theories: First, negligence and breach of contract in failing to deliver the goods within the time specified; and, second, an alleged conversion of the goods due to defendant's failure to transport them as agreed, and to return the same to the plaintiff. Assuming, for the purposes of the case, that negligence on the part of the defendant is shown, plaintiff was only entitled to recover the difference between the market value of the goods at the time when they should have been delivered, and the value thereof when they actually arrived and were ready for delivery. Now the evidence shows beyond all controversy that there was no difference in the value of the...