Cook v. Chi., R. I. & P. Ry. Co.

• Decision Date: 29 October 1890
• Citation: 46 N.W. 1080,81 Iowa 551
• Parties: COOK ET AL. v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

81 Iowa 551

46 N.W. 1080

COOK ET AL.

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Oct. 29, 1890.

Appeal from district court, Jasper county; D. RYAN, Judge.

This is an action at law to recover of the defendant certain alleged overcharges for the shipment of a large number of carloads of live-stock from Jasper county, in this state, to the Union Stock-Yards, near Chicago, Ill. The shipments were alleged to have been made between June, 1879, and April 22, 1883. The cause was referred to a referee to make up the issues, and try and determine the case, and report to the court. A trial was had, and a report was filed recommending a judgment for the plaintiffs. The defendant filed exceptions to the report. The exceptions were overruled, and a judgment was entered upon the report. Defendant appeals.T. S. Wright, Robert Mather, and Winslow & Varnum, for appellant.

Alanson Clark, for appellees.

ROTHROCK, C. J.

1. The action is not founded upon any statute, state or federal. The right to recover is based entirely upon the common law pertaining to the duties and obligations of common carriers. By an amended and substituted petition the plaintiffs claimed unlawful and unjust overcharges upon the shipment of 316 car-loads. Each shipment was pleaded in a separate count as a separate cause of action. All of the accounts were alike except in dates of shipment, cars and kinds of stock shipped, and stations from which the shipments were made. It is averred, in substance, in the amended petition that the public tariff rates for shipment of live-stock, from any point in Jasper county during the time the plaintiffs made such shipments, was $66 for one car-load. That the plaintiffs paid the full amount of said rates, and that certain other shippers (who are named in the petition) also paid the full tariff rates; but that said other shippers were allowed and defendant paid to them a rebate or drawback upon each car-load shipped by them, which rebate or drawback was paid by defendant to said shippers, under a private and secret arrangement between the defendant company and said shippers; and that the knowledge of the payment of such rebates was wrongfully and fraudulently concealed from the plaintiffs by the defendant, and said other favored shippers. That the agents of the defendant openly announced and declared to the plaintiffs that the public and announced tariff paid by the plaintiffs was correct, and that no cut, rebate, or concession from the same was allowed to any shipper, and that the plaintiffs, by reason of said wrongful and fraudulent agreement, did not and could not have discovered it, and they shipped their stock in the belief that no unjust discrimination was made against them. It is charged that the shipments made by the plaintiffs, and those made by the said favored shippers, were for precisely the same service, from the same places, upon like conditions, and under precisely the same circumstances, and that the rate charged by the defendant and paid by the plaintiffs was unreasonable, extortionate, and unjust, and that it was an unjust discrimination between shippers for the same service under like circumstances. Before proceeding to a determination of what we regard as the material question in the case, we will first dispose of a question pertaining to the power of the referee. The petition in the case was twice amended after the cause was referred. The reference was made by agreement of the parties before any issue was made or tendered in the case. The order of submission was as follows: “By agreement of parties this cause is referred to D. Ryan, with power to settle issues, and try and hear the cause, and report the facts and conclusions of law.” After the reference was made, the parties appeared before the referee, and the issues were made up. The amendments to the petition were very voluminous, and there were certain interrogatories attached to the petition, which interrogatories the plaintiffs demanded should be answered by certain persons claimed to be general officers of the defendant, and a rule was asked that the defendant be required to produce certain books and papers. In other words, the plaintiffs sought, by about all the means known to the law, to compel the defendant to disclose the facts as to the alleged discrimination between shippers. All these movements were resisted by the filing of motions and demurrers attacking the pleadings, and by refusing to produce its books and papers, and by failing to make full answers to the special interrogatories, and for such failure the referee ordered that the petition be taken as true, except so far as its averments were modified by the evidence introduced on the trial. It is claimed in behalf of the defendant that, under our practice, a referee has no power to make the orders which the referee made with reference to the failure to produce books and papers, and the failure to answer the special interrogatories. We do not think it is proper to determine what power a referee may have in these respects, for the reason that there is really not a disputed question of fact in the case. The evidence of the witnesses introduced by the plaintiffs establishes the facts pleaded in the petition without conflict. The defendant did not introduce any evidence; and, if the facts pleaded entitle the plaintiffs to recover, it would have been clearly against the undisputed evidence to have made a finding for the defendant. We will now state, as briefly as may be, the substance of the evidence.

2. It appears that one E. R. Clapp was an employe of the defendant. He was located at Des Moines, and was known among shippers of live-stock as the Iowa stock-agent of the defendant. Clapp was frequently along the railroad in conference with shippers of live-stock. He held this position during the time that the plaintiffs made the shipments set forth in their petition. There were a number of shippers of live-stock in and about Newton, the principal station on the defendant's road in Jasper county. During nearly the whole time covered by this action, the tariff rate for shipment of live-stock from Newton to Chicago was $60 per car-load. It was practically the same from the stations next east and west of Newton. There was at times a slight difference, but not enough to be a material fact in the case. The freight charges, as given by the defendant to its station agents, was for the most of the time $60 per car-load, and this rate was given out by station agents to shippers as the charge made by the defendant. All of the car-loads sent forward by all the shippers were billed by the agents at the full rate given out by the company. The stock was shipped in the usual manner. No part of the freight charges were in any case paid at the place of shipment. The cars were billed to commission houses at the Union Stock-Yards. The stock was sold by the commission men, and, after taking out their commission and paying the freight, the balance of the proceeds of the sales was remitted to the shipper. This was the uniform manner of transacting the business. All of the shippers were dealt with in exactly the same manner until the stock was sold and the regular freight charges paid. There was no difference in the manner of the service. All of the shippers were given the same kind of cars, and the stock shipped by the plaintiffs was conveyed in the same kind of trains, and on the same time, and with the same privileges as to the free transportation of one or more men to take care of the stock while in transit. In short, the plaintiffs had no preference over other shippers in any respect. It appears without conflict that at least three other firms or individuals engaged in the same business at the same place, and in competition with the plaintiffs, had private and secret agreements with Clapp, the said stock-agent, by which they were paid a...