Herriman v. The B., C. R. & N. R. Co.

• Decision Date: 21 June 1881
• Citation: 9 N.W. 378,57 Iowa 187
• Parties: HERRIMAN v. THE B., C. R. & N. R. CO
• Court: Iowa Supreme Court

9 N.W. 378

57 Iowa 187

HERRIMAN v. THE B., C. R. & N. R. CO

Supreme Court of Iowa, Des Moines

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 shipment, $ 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.

AFFIRMED.

Rickel West & Eastman, and D. W. Clements, for appellants.

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

OPINION

ADAMS, CH. J.

Action 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 15th 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 that 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 five hundred dollars 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 amount of 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 a recovery of five times the amount of the overcharge was designed merely to fix the measure of the plaintiff's indemnity. He relies on Koons v. Chicago & N.W. Railway Company, 23 Iowa 493. That action was brought under the statute allowing double damages for 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 was for a statute penalty, and it was held that it was not.

It appears to us, however, that there is a marked distinction between the statute under which that action was brought and the statute under which this is brought. In that case the court said: "This law does not give to the injured or aggrieved party a fixed statutory recompense for the wrong but without speaking of forfeiture or penalty, gives damages to the extent of the injury, and, in action brought, double that amount for the neglect or refusal to pay after due notice." The court further said: "It is well to remember that the amount of injury in these cases is usually not large, and that the expense of litigation is frequently as great as the value of the property destroyed. The purpose of the statute was compensation to the owner rather than the punishment of the company. If a case arises entitling a party to relief, simple, actual compensation is all that the company is required to make if it shall comply with the owner's demand. If it resists, however, his claim after due notice, and he shall be compelled to resort to the court, then his compensation is to be double this amount." We have quoted somewhat fully in order to set forth the principles upon which the decision was deemed to rest. It will be seen that the fact that neither the word forfeiture nor penalty was used was deemed significant. The statute under which the present action is brought expressly provides, that the company shall pay the amount recoverable as a forfeiture. Again the double damages for injury to stock are allowed by reason of the neglect to pay single damages. The design is, as ...