#### The Toledo & Ohio Central Railway Co. *v.*Wren.

*Dtity of railroads to extend freight facilities*— Section *3373-1, Revised Statutes*— Action *for damages for discrimination*— Recovery *for actual loss*— Measure *of damages*— Law *of common carriers.*

1. (it is the duty of a railroad company both under the common law, and by statute in this state, — Section 3373-1, Revised Statutes,— to extend to all persons, without favoritism or discrimination, equal opportunities and facilities for receiving and shipping freights of all kinds of the same class.^)

2. In an action against a railroad company, by a person engaged in the handling and shipping of hay, grain and straw, to recover damages for alleged discrimination against him by the company’s giving to other shippers, handling and shipping the same kind of freight, special or unequal preferences in the distribution and delivery of cars, the plaintiff is only entitled to recover as *138damages such sum as will compensate him for the loss or injury actually sustained as the result of such discrimination, except, that in any such action, if discrimination be proved, the recovery shall not be less than five hundred dollars.

3. In such action, where there is no allegation of special damages,— the measure of damages to which the plaintiff is entitled, is the difference between the market value of the hay and straw that would have been transported in the cars the plaintiff should have received, at the point to which they were to have been • carried, at the time when they would have reached their destination, and the market value of said hay and straw at the same time at the place from which they were to have been carried, less the cost of transportation between the two points.

(No. 10590

Decided April 14, 1908.)

Error to the Circuit Court of Wyandot county.

Suit was brought by the defendant in error John Wren, in the court of common pleas of Wyandot county to recover from the plaintiff in error as a common carrier, damages for alleged unlawful discrimination against him in the matter of the furnishing of cars for the shipment of hay and straw. The petition of plaintiff after averring the corporate capacity of the defendant railway company, that it is a common carrier, etc., contains, by way of statement of his cause of action, the following averments:

“John Wren, the plaintiff herein, lives in the town of Deunquat in said Wyandot county, and which town is and for many years has been a station on said defendant’s railway at which it has received freight and especially hay, straw and grain. The said plaintiff has for a long time been engaged at said town of Deunquat in the business of buying and shipping grain and hay and straw. There is no line of railway except *139that of the defendant’s extending through the said town of Deunquat.

“Said plaintiff has expended a large sum of money in building and maintaining an elevator, warehouse and other things necessary for the proper caring for and shipping of grain and hay at and from said station. ■

“There is a sidetrack, which was built many years ago at the joint expense of this plaintiff and deféndant, extending along the side of plaintiff’s elevator and warehouses and connecting with defendant’s main tracks, which was placed there by the parties to this suit for the purpose of running cars upon to be loaded and unloaded of freight. •

“This plaintiff receives large orders for hay and straw to be shipped to various points in Ohio and elsewhere, and which he can only ship over defendant’s line of railway.

“The town of Deunquat is located two and one-half miles from Sycamore, about eight miles from McCutchenville; about four miles from Lemert; and about fourteen miles from Bucyrus; all of which towns are stations on the defendant’s line of railway, and at all of which places the defendant receives for shipment hay and straw, all conditions at said places being the same as those at Deunquat for shipping said hay and straw.

“Plaintiff says that for three months prior to the filing of this petition said defendant has refused to furnish any cars to this plaintiff to be loaded with hay and straw, though this plaintiff has requested defendant to furnish him cars at *140Deunquat to be loaded with hay and straw, notifying the defendant daily of his need for said cars.

“During said period of three months prior to the filing of this petition this plaintiff has had a large number of orders for hay and straw to be shipped to various points in Ohio and elsewhere, but through this defendant’s refusal and that alone, he has been prevented from filling the orders of his said customers.

“This plaintiff as a buyer contracted to buy the hay crops, 1905, from many of the farmers in the vicinity of Deunquat, and through said refusal of the defendant to furnish cars for shipping as aforesaid, he has been prevented from carrying out his said contracts to his great and irreparable damage.

“During the said period of three months the defendant has furnished many cars to be loaded with hay and straw at the other stations herein-before named, and which have been loaded with hay and straw for shipment from said stations, though this plaintiff has absolutely received no cars for said purpose, though he has ordered cars daily from the defendant, and he was ready and willing to load said cars and pay the legal charge for the same.

“By reason of being discriminated against as above set forth this plaintiff has been damaged in his business of the sum of fifteen thousand dollars, for which he asks judgment.”

To this petition the following answer was filed:

*141“Now comes the above named defendant and for answer to the plaintiff’s petition says:

“The defendant admits that it is a corporation, as alleged in the petition, and that it operates a line of railroad from Toledo, Ohio, in a southerly direction through Wyandot county. Defendant admits that Deunquat is and has been for many years a station on defendant’s railway at which defendant receives and discharges freight. The defendant admits that the plaintiff is engaged in the business of buying and shipping grain, hay and straw. Defendant admits that there is a sidetrack extending along the line of railroad at the station of Deunquat. Defendant admits that Sycamore, McCutchenville, Lemert and Buey rus are all stations on the line of defendant’s railway.

“The defendant denies each and every other allegation in said petition that is not hereinabove specifically admitted to be true.

“Wherefore the defendant having fully answered, prays to be hence dismissed with its costs.”

Upon the issues thus tendered and presented the cause was tried and submitted to a jury and a verdict was returned in favor of the plaintiff for the sum of two thousand dollars. A motion for new trial was made and overruled and judgment was entered by the court of common pleas upon said verdict. This judgment was affirmed by the circuit court. The Toledo & Ohio Central Railway Company prosecutes the present proceeding in error and asks that the judgments of *142the courts below be reversed and that final judgment be entered by this court in its favor.

*Messrs. Doyle & Lewis*and *Messrs. Finley &*Gallinger, for plaintiff in error.

*Mr. D. C. Parker*and *Messrs. Carter &*Goodrich, for defendant in error.

Crew, J.

It is a part of the common law duty of railroad companies to afford to all shippers, without favoritism or discrimination, equal opportunities and facilities for receiving and shipping freights of the same kind and class. In this state such duty is declared and specifically enjoined by Section 3373-1, Revised Statutes, which provides that: “It shall be the duty of all railroad companies and of all persons operating a railroad, to secure and extend to all persons, companies and corporations, the same and equal opportunities and facilities for receiving and shipping freights of all kinds, of the same class (and the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class), that such railroad company or the person operating such railroad, extends to, has used or enjoys, of and concerning freights owned by such railroad company, or the person operating such road or any of the officers or stockholders therein, or in which it, they or either of them have any interest and any railroad company or person operating any railroad failing to comply with or observe the provisions or requirements of this section, shall *143be liable in a civil action to the party injured for the damages sustained, but for any violation of this section the recovery in any such action shall not be less than five hundred dollars.” It is the claim of counsel for plaintiff in error, that a proper interpretation of this statute will not permit the recovery of the penalty therein provided, except only in cases where the discrimination alleged and proved, is a refusal on the part of the railroad company to furnish to the shipper equal opportunities and facilities for the shipment of freight, that such railroad itself uses or enjoys of and concerning freights owned by said company, or the officers or stockholders therein, or in which it, they, or either of them have an interest. That it was not the legislative intent that this statute should be thus limited in its operation and effect, and that the legislature did not in fact so contemplate or enact, becomes apparent we think from a brief consideration of the course and history of this particular enactment. H. B. No. 658, (Section 2 of which is the law now under consideration), as originally introduced in the House of Representatives, was amended in the Senate by striking out all of said original Section 2 after the word and figure .“Section 2” and inserting in lieu thereof what is now Section 3373-1, Revised Statutes, as above quoted. Senate Journal, 1891, pp. 742, 743. The Senate amendment was concurred in by the House and the bill as so amended was passed and became a law on April 29, 1891. 88 O. L., 429. In the bill as passed, no parenthetical marks, such as are now found in the statute *144as published, were used or inserted, but .in said statute in the form in which it became a law, a comma was inserted and is found after the word “class,” in the first paragraph of said section. Thus indicating that the language now found in parenthesis, is not a mere repetition by inadvertence of the language which immediately precedes it, but that this language was advisedly and intentionally so repeated and used, by way of appropriately describing and defining a further and particular preference or discrimination thereby intended to be prohibited and forbidden. In other words, it was we think, the evident design and purpose of the legislature by this statute to enact and provide, — i. That it shall be the duty of all railroad companies to secure and extend to all persons, companies and corporations, the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class. 2. That it shall be the duty of all railroad companies to secure and extend to all persons, companies and corporations the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class that such railroad company extends to, has, uses, or enjoys, of and concerning freights owned by such railroad company, or any of the officers or stockholders therein, or in which it, they, or either of them have any interest. The first provision doubtless, was intended to be and is, merely declaratory of the common law duty and obligation of railroad companies as common carriers, while the obvious purpose and effect of the second provi*145sion, was and is, to declare unlawful, and to specifically prohibit by direct and positive enactment, the particular kind of preference or discrimination therein expressly pointed out and forbidden. The penalty clause of the statute, applies alike to both of these provisions, and is in terms as follows: “Any railroad company or person operating any railroad failing to comply with or observe the provisions or requirements of this section shall be liable in a civil action to the party injured for the damage sustained, but for any violation of this section the recovery in any such action shall be not less than five hundred dollars.” Whether or not in a particular case equal facilities have been refused and a discrimination made, as between shippers, is a question of fact to be determined from the evidence. Inasmuch therefore, as it affirmatively appears from the record in the present case, that there was sufficient evidence to warrant the finding of unlawful discrimination on the part of the railway company against the complainant John Wren, the latter was entitled, by force of the statute, to a verdict' and judgment in his favor for at least five hundred dollars. But with the qualification that the amount recovered shall not be less than five hundred dollars, a party suing for the violation of any of the provisions of this statute is only entitled to recover by way of damages, such sum as will compensate him for the loss or injury he has actually sustained. And in such action if, under the averments of his petition the plaintiff is only entitled to recover general damages, there being no sufficient allega*146tion therein of any special damages, the true rule and measure of such general damages is the difference between the market value of the goods that would have been transported in the cars the plaintiff should have received, at the point to which they were to have been carried at the time when they would have reached their destination, and their market value at the same time at the place from which they were to have been carried, less the cost of transportation between the two points. In the present case a verdict was returned by the jury in favor of the plaintiff and against the railway company for the sum of two thousand dollars; a sum, which upon the undisputed facts is shown to be so grossly' in excess of the damages actually sustained by plaintiff, as to compel the conclusion either, that such verdict was given and returned by the jury under the influence of passion or prejudice, or under the mistaken belief that they were permitted and had full right, to arbitrarily fix and determine the amount of the damages they would assess and allow, no instruction whatever having been given them by the court, as to how, or by what rule, they were to ascertain and measure the amount of such compensation, in the event they should find for the plaintiff. The entire and only instruction given by the court to the jury on the question of the amount of compensation proper to be allowed by them, was as follows: “If you find for plaintiff your verdict will be for such sum as will compensate the plaintiff for damage which he received by reason of defendant discriminating against the *147plaintiff as in plaintiff’s petition alleged. But if you find for plaintiff your verdict will be for not less than five hundred dollars.” How such damages were to be ascertained, or by what rule they were to be measured and determined the jury was not told, although counsel for the railway company specially requested an instruction upon this point. While the particular instruction asked by counsel in this behalf was properly refused as not containing an accurate statement of the rule or measure of damages applicable in this case, nevertheless, the request as made challenged the court’s attention to the necessity of, and counsel’s desire for, some positive and pertinent instruction on this very material question, and the total omission and failure of the court to advise and instruct the jury as to the law applicable to such question was in this case, under the circumstances, both erroneous and prejudicial. The railway company also requested the trial judge to give to the jury the following instruction:

“The plaintiff claims to have given defendant an order on or about the 26th day of September, 1905, for two cars for shipment of plaintiff’s hay over defendant’s road to C. & O. and N. & W. points and that the defendant refused to deliver said cars, in consequence of which plaintiff claims damage.

“The court instructs you that before plaintiff can recover in this action, he must satisfy you by a preponderance of the evidence,

“First — That such order was given to defendant.

*148“Second — That defendant had the cars of the kind ordered and facilities for furnishing the same during the period of- which plaintiff complains, and

“Third- — That defendant discriminated against the plaintiff in favor of other shippers in the delivery of cars for the transportation of hay and straw.”

This instruction, which was refused, should we think have been given as asked, and the refusal of the court to submit it to the jury was error. Other alleged errors are assigned and have ■ been considered, but we find in the record no prejudicial error except as hereinbefore stated. The judgment of the circuit court affirming the judgment of the court of common pleas will be reversed, and the cause will be remanded to the court of common pleas of Wyandot county with directions to set aside the verdict rendered herein and grant a new trial, unless a remittur be entered by John Wren of the amount of said verdict in excess of five hundred dollars.

*Judgment reversed.*

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.