Wood Bros. Thresher Co. v. Eicher, No. 45811.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 1 N.W.2d 655,231 Iowa 550
• Docket Number: No. 45811.
• Decision Date: 13 January 1942
• Parties: WOOD BROS. THRESHER CO. v. EICHER et al.

231 Iowa 550
1 N.W.2d 655

WOOD BROS. THRESHER CO.
v.
EICHER et al.

No. 45811.

Supreme Court of Iowa.

Jan. 13, 1942.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Suit in equity for temporary and permanent injunction restraining defendants from arresting or otherwise interfering with purchasers of corn pickers from plaintiff, its agents or employees while hauling or moving said corn pickers from the factory of plaintiff at Des Moines to the farms owned or rented by them, because of alleged violations of 1939 Code, Section 5035.01 et seq., relating to size, weight and load of vehicles. From a judgment dissolving such a temporary injunction, on motion of defendants, the plaintiff has appealed.

Affirmed.

[1 N.W.2d 656]

Brammer, Brody, Charlton & Parker, of Des Moines, for appellant.

G. H. Clark, Jr., Asst. Atty. Gen. of Iowa, and C. B. Hextell, of Des Moines, for appellees.

BLISS, Chief Justice.

Under Code section 5035.01 it is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any highway any vehicle exceeding in size or weight the limitations specified in the chapter. Sections 5035.02 and 5035.03 are as follows:

“5035.02 Exceptions. The provisions of this chapter governing size, weight, and load shall not apply to fire apparatus, road machinery, or to implements of husbandry temporarily moved upon a highway, or to a vehicle operated under the terms of a special permit issued as provided in sections 5035.16 to 5035.19, inclusive.”

“5035.03 Width of vehicles. The total outside width of any vehicle or the load thereon, except loose hay or straw, shall not exceed eight feet.”

Section 5000.01, subd. 14, states: “‘Implement of husbandry’ means every vehicle which is designed for agricultural purposes and exclusively used by the owner thereof in the conduct of his agricultural operations.”

Other sections of the chapter contain limitations upon the height, length of vehicles, or combinations of vehicles, and for maximum loads, and the location of loads or weight on parts of the vehicle.

Chapter 177 of the 49th General Assembly authorizes the State Highway Commission

[1 N.W.2d 657]

to enforce these limitations, and to confer the authority of a peace officer upon employees designated as enforcing officers.

Plaintiff filed its petition on August 4, 1941 alleging: it is a corporation engaged in manufacturing, at Des Moines, threshing machines, combines, corn pickers and other implements of husbandry; the official capacities of defendants; its expenditure of money to make its products; said corn pickers are marketed by it through dealers in Iowa and surrounding states, many of whom have a volume of business insufficient to require carload shipments by rail, and that shipment of corn pickers singly or doubly by rail involves a prohibitive cost which would render plaintiff and such dealers incapable of competing with other corn pickers on the market; that so long as its purchasers can transport on the highways the corn pickers from the plaintiff and its dealers to their farms at a cost to them that is not prohibitive and is fair and reasonable in comparison with the cost of competitive machines on the market, plaintiff will be able to realize a small margin of profit on its investment in the machines; if this cannot be done, plaintiff's sales will be adversely affected and it will lose a substantial part of its investment and profit; since about July 15, 1941, numerous farmers, or their agents, in Iowa and surrounding states have been coming to its factory to purchase corn pickers for their own exclusive use, and, except as wrongfully prevented by defendants, have moved said machinery on the highways to their farms to be used; that section 5035.02 expressly provides that the provisions of the Code relating to width of vehicles and the load thereon shall not apply to implements of husbandry temporarily moved upon the highway, but notwithstanding and although the movement of the corn pickers is in a single unrepeated trip of strictly temporary character, the defendants “have repeatedly, in arbitrary and unlawful disregard of the provisions of said exemption section of the Code, wrongfully, and in breach of their duties and rights in the premises, stopped, molested, arrested, threatened with arrest and otherwise interfered with, hindered and prevented the said customers of plaintiff from so moving said corn pickers upon the highways or coming to plaintiff's factory to obtain delivery of said machines for the purpose of so moving the same on the highway, and have by such arrests, molestations, stoppings, threats, interference and hindrance, intimidated and frightened plaintiff's customers and caused plaintiff to lose sales and business and caused plaintiff's dealers to hesitate to make contracts for sale of corn pickers of plaintiff's manufacture and to refrain from doing so for fear of incurring the arrest and molestation and consequent expense and displeasure of their customers as a result of their moving or attempting to move said corn pickers on the highways, all to plaintiff's direct and irreparable damage and injury”; that defendants will continue these acts to the plaintiff's irreparable injury unless restrained; that sections 5035.16 to 5035.19 do not aid plaintiff; that defendants are not sufficiently financially responsible to recompense plaintiff, and it has no plain, speedy and adequate remedy at law; “that the defendants have, by inducing and bringing about delays in the trial of employees of customers of plaintiff whom they caused to be arrested, made it impossible to obtain final adjudications in the criminal proceedings initiated by them, and defendants further refuse to be bound and to abide by the decision of any single Justice of the Peace or other Court, with the result that acquittal in and with respect to any single arrest will not afford plaintiff or its customers any protection or relief from further arrests and persecution.”

There is not only no support in the record for the last quoted allegation, but the record clearly establishes the contrary.

The petition contains no allegations as to how the corn pickers were moved on the highway, or the width, height or weight of the corn picker, or their structure, or any allegations of fact sustaining the claim of unlawful conduct on the part of any defendant, or any allegations of fact to support the naked claim that any damages present or prospective were irreparable.

Plaintiff prayed “that a temporary injunction issue restraining * * * the defendants, and each of them, and their agents and employees, from stopping, molesting, arresting, threatening with arrest, hindering or otherwise interfering with purchasers of Wood Brothers Thresher Company corn-pickers, their agents or employees, while hauling or moving said corn-pickers from the factory of Wood Brothers Thresher Company at Des Moines, Iowa, to the farms owned or rented by said purchasers, on account of alleged violations of Iowa statutes relating to

[1 N.W.2d 658]

size, weight and load of vehicles, and that upon final hearing such injunction be made permanent.”

The petition was verified. There was an order on August 4, 1941 for a temporary injunction as prayed, without notice to defendants, and such a writ was issued on the same day and served on August 11, 1941.

Defendants filed verified answer admitting the manufacture of machinery by plaintiff at its factory and numerous deliveries thereof since July 15, 1941, as alleged in the petition, and averred their transportation by trucks over the highways in loads more than eight feet wide in violation of Code section 5035.03 et seq. They alleged that plaintiff was doing the transporting and that in doing so neither it, nor the machines delivered, nor the manner of their transportation, came within any exception of Code section 5035.02; that such transportation was a violation of section 5035.01 et seq., and that any arrests made or other actions complained of against the defendants were done in the rightful and authorized performance of their statutory duties. All other allegations of the petition are denied, or are averred to be of no materiality.

At the same time, defendants filed a motion to dissolve the temporary injunction, alleging in substance the allegations of the answer, and making the latter a part of the motion by reference. A motion to strike parts of the answer was never ruled upon. We find no prejudicial error in this.

A hearing was had on the motion to dissolve, at which defendants introduced evidence. It appears therefrom that on July 16, 1941, a defendant peace officer arrested a truck driver from Blairsburg, Iowa, on whose truck was a “combine” purchased from the plaintiff, with a load overwidth of nine inches. He was not fined but paid the costs. On the same day, a truck driver from Owatonna, Minnesota, was arrested with a “combine” purchased from the plaintiff with an overwidth of nine inches. He paid a fine of $5 and costs. On July 18, 1941, a truck driver and owner of Ventura, Cerro Cordo County, Iowa, was arrested with a “combine”...