dissenting: It is an admitted fact that the amount of the plaintiff’s demand on the defendant was for $3.75, and the defendant refused to pay it. In this suit the just and legal claim of the plaintiff is established to be $3.56. For its refusal to pay an unjust and illegal demand, the defendant is penalized $100.
*88The finding of the jury was based on the evidence of the plaintiff’s own witness, Gus Leach, who was secretary, treasurer, and general manager of the plaintiff, and from the file rates of Interstate Commerce Commission, offered in evidence by the plaintiff.
The same witness further testified that before suit was brought, the defendant railway company had offered the sum of $2.39 in settlement of the claim of overcharge. So that in the absence of the knowledge on the part of either party of the real amount due as overcharge, the defendant offered $2.39 and the plaintiff demanded $3.75 in settlement; the true amount, according to the verdict of the jury, being $3.56.
In my opinion, the judgment of this Court in sustaining such a penalty is squarely opposed to three decisions of the Supreme Court of the United States. R. R. v. Wynne, 224 U. S., 354.
Also, in Chicago, Milwaukee and St. Paul Railway Co. v. Polt, decided by the United States Supreme Court on 26 January, 1914, published in the Supreme Court Reporter for 1 March, 1914, Vol. 30, No. 7, on page 301 it appears that by a statute of South Dakota a railroad company is made absolutely responsible for double the amount of damages actually sustained for loss of property destroyed by fire, cornmunicated from its locomotive engine, unless it pays the full amount within sixty days from notice, with a proviso that if the railroad shall “offer in writing to pay a fixed sum, being the full amount of the damages sustained, and the owner shall refuse to accept the same, then in any action thereafter brought for such damages, where such owner recovers a less sum as damages than the amount so offered, then such owner shall recover only his damages and the railway company shall recover its costs.”
Polt demanded $838.20. The railroad company offered in writing to pay $500. Then Polt recovered a verdict for $780. A judgment for double damages was. affirmed by the Supreme Court of the State, 26 South Dakota, 378, 128 N. "W., 472. This judgment was reversed by the Supreme Court of the United States, the Court holding:
*89“The rudiments of fair play required by the Fourteenth Amendment are wanting when a defendant is required to guess rightly what a jury will find, or pay double if that body sees fit to add one cent to the amount that was tendered, although the tender was obviously futile because' of an excessive demand. This case is covered by St. Louis, I. N. and S. R. Co. v. Wynne, 224 U. S., 354, 56 Law Ed., 799, 42 L. R. A., N. S., 102, 32 Sup. Court Rep., 493. It is not like those in which a moderate penalty is imposed for failure to settle a demand found to be just. Yazoo and M. Valley R. Co. v. Jackson Vinegar Co., 226 U. S., 217, 57 Law Ed., 193, 33 Sup. Court Rep., 40.”
See, also, Chicago, Milwaukee and St. Paul Railway Co. v. Kennedy, Vol. 34, No. 10, page 463, of Supreme Court Reporter, dated 15 April, 1914.
In R. R. Co. v. Wynne, Mr. Justice Van Devanter says: “Evidently the prior demand was excessive, and the company rightfully refused to pay it. And yet the statute was construed as penalizing that refusal and requiring a judgment for double damage and an attorney’s fee. In other words, the application made of the statute was such that the company was subjected to this extraordinary liability for refusing to pay the excessive demand made before suit. We think the conclusion is unavoidable that the statute, as so construed and applied, is an arbitrary exercise of the powers of government and violative of the fundamental rights embraced within the conception of due process of law.”
'The excess demanded in this case is small, but the principle involved is the same.
MR. Justice ’Walker concurs in this dissent.