Streeter v. Chicago, Milwaukee & St. Paul Railway Co.

Cole, J. The first question which will be considered is, — 297 — whether the court below was right in holding the defendant liable for any excess in the charges made by the companies from which it received the property in the usual course of transportation. And upon that point we are clearly of the opinion that the defendant cannot be held liable for the acts of the other carriers, under the provisions of the law counted upon in the complaint. By that statute the legislature fixed the rates which railway companies might charge and collect for the carriage of persons and property over their respective roads within this state. The law prescribes the strictly ordinary rates for such transportation in the usual course of business; it does not attempt to mate one company liable'in a penal action for the acts of another corporation, nor does it limit the compensation which a railway company might receive on a special contract for any extraordinary or extra service which it might render a party dealing with it. But it was the strictly ordinary and common rates about which the legislature was concerned, and these it regulated and fixed by the provisions of the act. . By the sixth section (the one under which this action is brought), it is in substance, among other things, enacted, that no railway corporation, lessee or other person, shall charge or receive any greater compensation for carrying freight or passengers than that provided in the act, and any individual or company violating its provisions, and every agent of such company or corporation who should charge for the transportation of any of the designated property a greater sum or higher compensation than that prescribed, should be deemed guilty of a misdemeanor, and on conviction should pay, etc.; “ and the injured party shall have a right of action against said agent, or against the railroad company, or other persons operating the railroad, or both, in which he shall be entitled to recover three times the amount taken or received from him in excess of the rates prescribed by this act.” Now it seems to us very plain that this provision relates to — 298 — overcharges wbicb a railway company or its agent might or should make as a compensation for its own services. The penalty attaches to such a violation of the law. Where the railroad company or its agent exacted or received for its usual, ordinary service in the transportation of property over its road more than the legal rates, there it was made amenable to the party aggrieved for three times the excess. The act, as before intimated, is penal in its character, and must receive a strict construction. It would be a forced, unnatural and most unreasonable construction, to hold that the law makes a railroad corporation responsible not only for the acts of its own agents, for any overcharges which they should make as a compensation for carrying of freight over its road, for violations of the act in that respect of which its agents were guilty, but likewise makes it answerable for the excessive charges of another corporation and the acts of agents over which it has no control. We think the statute in question has no such intent, and that it is not fairly susceptible of any such interpretation. Whatever overcharges the defendant made above the legal rates as recompense for its services in carrying the lumber over its road, it is responsible in this action for three times the excess. But that is the extent of its liability. From the evidence in the case it is impossible to determine the amount of the overcharges made by the defendant, if any were made, and that matter will of necessity be a subject of proof on another trial. But certainly we are very clear upon the point that if the first carrier violated the law and made overcharges for its transportation, the remedy of the plaintiffs is against that company for the wrong, and not against the defendant. The case of Ackley and another against this defendant, 36 Wis., 252, is relied upon as sustaining the ruling of the court below; but we fail to see the application of the doctrine of that case to the one at bar. There an action was brought to recover possession of lumber when the plaintiff had tendered — 299 — to tbe defendant the full amount allowed by the act for transporting the property from Oshkosh, the place of shipment, to Oconomowoc, where it was consigned. The Chicago & Northwestern Eailway had charged the maximum legal rate for the whole carriage, for its services in transporting the lumber to "Watertown Junction; and upon that state of facts it was urged that the action could not be sustained, because the defendant could not be compelled to carry the lumber over its own road from Watertown Junction to Oconomowoc without compensation. But the court held, as the highest rate of freight that could lawfully be demanded for the whole carriage had been tendered, the action could be maintained, and that the freight must be divided between the two railway companies on some^ equitable principle. But that decision furnishes no ground for holding the defendant liable in this action for any excess of charges made by the first carrier for its service. True, the defendant paid the back charges and collected them of the plaintiffs; but that fact does not affect the question as to its liability. The court below in effect instructed that it was its duty to know what these back charges were for, and that it was chargeable. with notice that they were excessive. We do not, however, think any such duty was imposed upon, or that any such notice was imputable to, the defendant, as the learned circuit judge supposed. But were it otherwise, it is clear that the law does not render the defendant liable in this action for the excess in these back charges. Another error relied on for a reversal of the judgment is the refusal of the court to give the following requests of the defendant: “ “ 1. If you believe from the evidence that the several payments made by the plaintiffs were made with full knowledge of all the facts, voluntarily and without protest, then such payments were voluntary payments, and the plaintiffs cannot recover back the amount paid. — 300 — “ 2. If the plaintiffs knew that a part of the amount paid was to be paid over to the' Chicago & Northwestern Railway Company by the defendant, and the same was paid by the defendant to said Chicago & Northwestern Railway Company before any protest or objection was made by plaintiffs, then said plaintiffs cannot recover for the amount so paid to the Chicago & Northwestern Railway Company.” It is proper, in view of the order which we shall make, to express our opinion as to the correctness of these instructions when applied to this case. The learned counsel for the defendant claims and argues on this point, that the expense bills presented to the plaintiffs informed them fully what the charges were for, and what proportion was going to the Chicago & Northwestern Railway, and that one of the plaintiffs swears he fully understood it at the time, and paid with full knowledge. It is said the plaintiffs were not compelled to pay, nor were they under compulsion of any kind; that the payments were purely voluntary, and therefore, upon well settled principles, no action whatever lies to recover back the moneys thus paid. The rule of law invoked is doubtless sustained by ample authority; but it appears to us it cannot apply to this case, for this reason: The statute gives the right of action in the most distinct and absolute terms; and if we were to hold that a party voluntarily paying the excessive charges without protest could not bring an action for the penalty, we should introduce an exception which the legislature has not seen fit to make. If it had been the intention of the legislature to deny the right of action to a party, voluntarily paying the charges, such intention would have been effectuated by a positive exception. The case presented under the act is quite analogous to a case of usury, where the statute forbids the taking of excessive interest and punishes a violation of its provisions by an action for a penalty given the borrower against the lender. See Wood v. Lake, 13 Wis., 85. It is therefore not a sufficient answer to the action to say that the — 301 — plaintiffs paid the excessive charges made by the defendant for its own carriage voluntarily, with full knowledge of the facts and without objection. Eor though this may be so,'still, as the statute gives the action absolutely, without qualification, the courts cannot deny the plaintiffs the right to recover three times any excess which may have been taken above the legal rates. This is all the remark -we deem it necessary to make on the instructions. An objection is taken that the complaint is bad because several causes of action are improperly united, or are attempted to be stated together. It is said that one hundred and twenty-seven different causes of action are aggregated in one count, and that it is sought to recover for all these penalties as though they constituted one cause of action. There is a bill of particulars annexed to and made a part of the complaint, which gives a particular statement of the plaintiffs’ claim on which the action is founded. No objection was taken to this method of pleading, either by motion or demurrer; and the defect cannot now be insisted upon, if any originally existed. In the case of City of Brooklyn v. Cleves, Hill & Denio, 231, it is said to be well settled, that several penalties may be included in the declaration and recovered in one suit at common law. See Bartolett v. Achey, 38 Pa. St., 273. In view of that rule,” we cannot, under the circumstances, hold the complaint defective for the objection taken. Baxter v. State, 9 Wis., 39. By the Cov/rt. — The judgment of the circuit court is reversed, and a new trial ordered.