The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-07-30
WRIT ALLOWED.
Mandamus Granted Continental
Co. Against Rock Island.
Will Be Heard by Supreme
Court in August.
CLAIMS HEAVY LOSS.
Creamery Company Estimates
Damages at 100000.
A Third Suit May Be Brought
Against Railroad.

Following UP the proceedings which 1t
commenced Tuesday before the board of
railroad commissioners. the Continental
Creamery company Wednesday after
noon commenced mandamus proceed
ings in the supreme court to compel the
Rock Island railway to give better IA
cilities for hauling milk and cream be-
tween Beleville and Goodland. Chief
Justice Johnston allowed an alternative
writ OF mandamus. and made it return
able on August 10.
The causes for action set up in the APP
plication for mandamus are very SINH
lar to those alleged in the petition filed
with the board OF railroad commission
srs. Several new allegations are made.
however. Among others, 1t is claimed
that the Rock Island company has dis
eliminated against the Continental
Creamery company by handling the
cream cans of rival concerns, while 1t
turned down the Continental Creamery
business. 1t is also claimed that the
railroad was negligent in delivering the
empty cans to the dairymen, making it
necessary for the dairymen to store
their cream in tubs. buckets and other
receptacles, much to the injury of the
cream.
FlRuIeu out IN collars ana CGulSs ilA-
Continental Creamery company claims
that it has been losing $500 a day dur
ing the months of April. May, June and
July, because of the failure of the Rock
Island to properly care for its cream.
The total loss to the company, at this
rate would be at this time $50, 900, not
including the alleged destruction of the
company's $4,000 business investment
along the company's line from Belle
vile to Goodland
1t is stated that a third suit is to be
commenced in the district court in the
form of a petition for heavy damages.
and it is supposed that the amount
which viii be claimed will be upwards
of 100000. This will make three law
suits against the Rock Island, and the
effect will probably be to force a COM
promise of the difficulty without any lit
igatiOn.
The application for mandamus is as
follows:
BY the direct assistance of the Rock
Island and by its holding itself out to
the public and to this plaintiff as
common carrier, the Rock Island in
duced the plaintiff to purchase, erect,
equip and maintain more than forty
Swimming stations on the defendants
line of railroad at an expense of more
than $3.50 000 located at the various
towns along said railway between the
towns of Goodland, Kas.. and Belle
vile, Kas.; that the plaintiff has, for
more InEn three years past puICldScu
from the farmers in tie vicinity of said
skimming stations and shipped over the
line of said defendants railway to its
factory at Topeka, kas, large guam
titles Of cream.
1t has been further 9shown that. as
an inducement to buidi up the cream
cry business of said plaintiff along the
lines of said defendants said railway,
said railway company gave the said
plaintiff assurances that it would with
diligence transport all cream in cans,
to which a proper ticket was attached.
on passenger trains from the point of
shipment to plaintiffs factory at To-
peka kas.; that on account of the ma
ture of cream it is impracticable and
imnossible to ship it on freight trains,
especially in the heated summer sea-
son; that when so shipped it is delayed
in transit from two to five days; that
If said cream were shipped on pas
senger trains it would be, from the
farthest point, Goodland, to Topeka.
not to exceed twelve hours in transit
by regular passenger train schedule,
and that if so shipped it would be in
practically the same state of preserva-
ton when received as when shipped,
and that ii is the custom and practice
of all railways to ship cream either by
special train service or as express bag
gage on passenger trains; that not
Withstanding its assurances to said
plaintiff that it would receive and
transport all cream with due diligence
on passenger trains it has for more
than one year last past neglected,
failed and refused to TRANSPORT the
cream belonging to said plaintiff from
its several skimming stations on the
line between Goodland and BeIleville
as aforesaid, by passenger train, al
though in each case each and every can
had attached thereto tickets sold to
this plaintiff by the defendant railway
company, which said tickets were paid
Tor IN advance and purchased from the
passenger department of said railway
company by this plaintiff; and said de-
PENDANT has given to said plaintiff an
Indifferent freight train service. by
which the cream shipped from the sew
eral Swimming stations located as
aforesaid between the towns of Good
land and Belleville has been DELAYED in
transit from two to five and six davs
so that the cream thus shipped. al
though tested and marked Grade L.
when delivered to said railway com
pany, was found to be Grade A. when
received by plaintiff from defendant at
2 .lsIl s s., factory in Topeka, and that
Grade 4 cream is practically worth
less; that the condition of the cream
thus received was due solely TO tbe
neglect, fault and failure Of SAID de-
Eendant railway company to TRANSPORT
said cream within a reasonable fine
after the same was delivered to II nv
SAID plaintiff; that the delav in the
SHIPMENT of said cream and its conse-
quent decay has occasioned a loss tc
the said plaintiff during the months ~
April. May June and July of about
5000 daily.
It is further shown that the entire pro
duct received from the defendants rail
way as aforesaid has, during the sew
eral months of April May June and
July, 1908, been practically worthless. as
aforesaid; that the butter made there
from Is unstable. and that any atternpt
to sell the same would destroy the pat
ronage and business of said plaintiff
That the neglect. failure and refusal OF
said defendant railway company to per
form its duties as a common carrier
and to carry out its assurances to said
plaintiff have already resulted in ire
parable injury and damage to said
plaintiff, and that unless this court is
sue its peremptory writ of mandamus
to compel the said defendant company