Herriman v. Burlington

• Decision Date: 21 June 1881
• Citation: 57 Iowa 187,9 N.W. 378
• Parties: HERRIMAN v. BURLINGTON, CEDAR RAPIDS & NORTHERN RY.
• Court: Iowa Supreme Court

57 Iowa 187

9 N.W. 378

HERRIMAN

v.BURLINGTON, CEDAR RAPIDS & NORTHERN RY.

Supreme Court of Iowa.

Filed June 21, 1881.

Appeal from Fayette circuit court.

The plaintiff avers that in February and March, 1879, he shipped from West Union to Postville, Iowa, certain grain, seed, and pork over the defendant's road; that the defendant demanded of him, and received as freight for such shipments, $265.50 more than was allowed by law; that the defendant did so in violation of law, to the damage of the plaintiff in five times the amount of the overcharge, to-wit, the sum of $1,327.50, for which he asks judgment. The defendant demurred to the petition on the ground that it showed that the recovery sought was for a statute penalty, and that the cause of action having accrued, if at all, more than two years prior to the commencement of the action, is barred by the statute of limitations. The court sustained the demurrer, and the plaintiff standing by his petition, judgment was rendered for the defendant. The plaintiff appeals.Rickle, West & Eastman and D. W. Clements, for appellant.

J. & S. K. Tracy, for appellees.

ADAMS, C. J.

Actions to recover a statute penalty must be brought within two years from the time the cause of action accrued. Code, § 2529. If the recovery sought in this case is for a statute penalty, the action is barred. Whether the recovery sought is for a statute penalty is the question in the case. The amount claimed, which is precisely five times the alleged overcharge, would seem to indicate that the action was brought under chapter 68 of the Laws of the Fifteenth General Assembly. We could not say absolutely from the petition that it was, but the counsel upon both sides have so treated the action in their arguments, and we think we ought to assume that it should be so treated by us. That statute fixed certain maximum rates of charges for transportation of freight, and provided that a violation of the act by demanding more than the maximum rates should be deemed a misdemeanor, to be punished by a penalty of forfeiture of $500 to the school fund. It also provided that for a violation of the act, the company should “forfeit and pay to the person injured five times the compensation or charges illegally taken or demanded, or five times the amount of damages caused, as the case may be,” etc.

The plaintiff insists that notwithstanding the use of the word “forfeit,” the action is to be regarded as brought for indemnity, and that the provision allowing the recovery of five times the amount of the overcharge, was designed merely to fix the measure of the plaintiff's indemnity. He relies upon Koons v. C. & N. W. R. Co. 23 Iowa, 493. That action was brought under the statute allowing double damages for the stock injured where a notice has been given, etc. The action not having been brought within two years from the time the cause of action accrued, the defendant claimed that the action was barred. The question presented was as to whether the recovery sought...