Adams v. St. Louis & San Francisco Railway Company
| Decision Date | 16 March 1897 |
| Citation | 28 S.W. 496,138 Mo. 242 |
| Parties | Adams v. St. Louis & San Francisco Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Laclede Circuit Court. -- Hon. W. I. Wallace, Judge.
Affirmed.
Edward D. Kenna, L. F. Parker, and H. S. Abbott for appellant.
Defendant for a reversal, relies upon the following points: (1) Section 2615 (the act approved March 31, 1887) of the Revised Statutes of 1889 is unconstitutional, because: First. It impairs the obligation of the contract contained in defendant's charter. R. S. 1889, sec. 2543; Fletcher v. Peck, 6 Cranch, 87; Dartmouth College v Woodward, 4 Wheat. 518; U. S. v. Quincy, 4 Wall. 535; Greene v. Biddle, 8 Wheat. 92; Planters' Bank v. Sharp, 6 How. 327; Commissioners v. Transfer Co., 107 Pa. St. 112; Railroad v. Railroad, 60 Md. 263; Bank v Hamilton, 21 Ill. 53; Payne v. Baldwin, 3 S. & M. 661; Edwards v. Kersey, 96 U.S. 607; Howard v. Bugbin, 24 How. 461; Meriwether v. Garrett, 102 U.S. 472; Bronson v. Kinsey, 1 How. 311; McCracken v. Hayward, 2 How. 608; Louisiana v. New Orleans, 102 U.S. 203; Gas Company v. Gas Company, 115 U.S. 668; Waterworks Company v. Rivers, 115 U.S. 82; People v. Jackson Road Co., 9 Mich. 285; Sloan v. Railroad, 61 Mo. 24; Smith v. Railroad, 37 Mo. 295; Wharton on Negligence, sec. 668; Burroughs v. Railroad, 15 Conn. 128; Mosher v. Railroad, 8 Barb. 477; Rood v. Railroad, 18 Barb. 37; Bank v. Knoop, 16 How. 369; Dodge v. Wheeler, 18 How. 331; Thomas v. Railroad, 101 U.S. 71; Railroad v. Riche, Law Reports, 7 H. L. 653; Bull v. Railroad, 5 Harr. (Del.) 401; Lake View v. Rose Hill Cemetery, 70 Ill. 196; Railroad v. Lackey, 78 Ill. 57; Thorp v. Railroad, 27 Vt. 143; Bronson v. Meyer, 10 Barb. 223; Small v. Railroad, 51 Iowa 346; Cooley, Const. Lim. [5 Ed.] 337; Trustees v. Indiana, 14 How. 268; Scotland Company v. Railroad, 65 Mo. 135; State ex rel. Haeussler v. Greer, 78 Mo. 188. Second. It denies defendant the equal protection of the laws. State v. Hays, 81 Mo. 586; Railroad v. Moss, 60 Miss. 641; Slaughter House cases, 16 Wall. 336; Railroad tax case, 13 F. 722; Santa Clara County v. Railroad, 119 U.S. 394. Third. It takes defendant's property without due process of law. Railroad v. Lackey, 78 Ill. 57; Small v. Railroad, 51 Iowa 340; Zeigler v. Railroad, 58 Ala. 594; Miller v. Martin, 16 Mo. 508; Khale v. Hobin, 30 Mo.App. 476; Catron v. Nichols, 81 Mo. 82; Walley's Heirs, 2 Yerg. 554. (2) Said section, if valid, only makes the fact of the injury prima facie evidence of negligence. Small v. Railroad, supra; Dill v. Railroad, 32 A. & E. R. R. Cas. 824; Khale v. Hobin, supra; Catron v. Nichols, supra. (3) Said section does not authorize damages for property upon which plaintiff could not have obtained insurance. Chapman v. Railroad, 37 Me. 92. (4) Because the evidence shows that plaintiff was not the owner of the property destroyed.
J. P. Nixon for respondent.
(1) Section 2615 (Acts 1887), Revised Statutes of 1889, is constitutional. First. It is a proper exercise of the police powers inherent in the States. Moreover, section 5, article 12, Constitution of Missouri, enacts: "The exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well being of the State." The defendant corporation having been incorporated subsequent to the adoption of this Constitution, and under general laws, this provision of the Constitution became a part of its charter and it is subject to legislative regulations. By section 2615, Revised Statutes, the legislature did undertake to exercise, and did exercise, the identical power reserved to it over corporations in the above constitutional provision; it did undertake to prescribe how corporations should conduct their business so as not "to infringe the equal rights of individuals" and did prescribe their liability in case of such infringement. Second. Section 2615 is a police power. It undertakes to define the mode and manner in which railroad corporations may use their property so as not to injure others. Commonwealth v. Alger, 7 Cush. 84; Commonwealth v. Tewksbury, 11 Met. 54; Hart v. Mayer, etc., 9 Wend. 571; Railroad v. Tilton, 12 Ind. 3; Railroad v. Kercheval, 16 Ind. 84; Railroad v. McClelland, 25 Ill. 140; People v. Draper, 25 Barb. 374; Baltimore v. State, 15 Md. 390; Police Commissioners v. Louisville, 3 Bush. 597; Wynehamer v. People, 13 N.Y. 402; Thorpe v. Railroad, 27 Vt. 140; Hegemen v. Railroad, 16 Barb. 353; College v. Woodward, 4 Wheat. 518-629; Railroad v. Hames, 115 U.S. 512; Cooley's Constitutional Limitations [3 Ed.], secs. 575, 576; Broom's Legal Maxims [5 Am. Ed.], p. 327; Railroad v. Richardson, 91 U.S. 474; Lyman v. Railroad, 4 Cush. 288; Railroad v. Briggs, 2 Zab. 623; Trice v. Railroad, 49 Mo.App. 438; Barnett v. Railroad, 68 Mo.App. 62. (2) Said section creates a liability and is not a rule of evidence as to negligence. First. Plaintiff Adams had as much right to carry on his nursery business as the defendant had to run its locomotive engines. The legislature has constitutional power to protect the rights of citizens along lines of railroads. Whether fire was caused by negligence or not, it simply enacted into a law the old legal maxim: "Where one of two innocent parties must suffer, that one must be the sufferer that gives occasion to the commission of the wrong." Bank v. Armstrong, 62 Mo. 59-67; Whitteman v. Obear, 58 Mo. 280-286; Thorpe v. Railroad, 27 Vt. 149; Broom's Legal Maxims [5 Am. Ed.], p. 327; Pixley v. Clark, 35 N.Y. 520. It was competent for the legislature to declare that the escape of fire from a locomotive engine is conclusive evidence of negligence; that in the present stage of mechanical invention and construction of engines, with skillful management and proper care of right of way, no fires will escape into adjoining properties. Second. Prior to act of 1887, the law was already well established that proof of fact that damage was caused by fire from a locomotive engine was prima facie evidence of negligence. Bradford v. Railroad, 46 Mo. 456; Miller v. Railroad, 90 Mo. 390. It would be a useless and senseless thing to enact section 2615 if it was already a law. Third. By no canon of construction can section 2615 be made a rule of evidence. It creates a right of property -- "it is thus written" on the face of the law and the condition of the law at that time reveals the intention of the legislature to make railroad companies unconditionally liable for all fires communicated by their engines. Fourth. It is a remedial statute and should be liberally construed. Railroad v. Richardson, 91 U.S. 454. (3) First. It was wholly immaterial whether nursery trees could have been insured. Railroad v. Richardson, 91 U.S. 474. Second. There is no evidence in this case that property could not have been insured. See appellant's abstract of record, in which no such evidence is shown, and at trial none was produced. Third. No instructions were asked by appellant on this question at trial, and no exceptions on this point, and this question can not surely be tried for the first time in Supreme Court without evidence, instructions, or exceptions. (4) The evidence proves that plaintiff Adams owned the nursery at the time of its destruction, that he planted it, it went by his name and he controlled, managed, and was in possession of it. State ex rel. Robertson v. Hope, 88 Mo. 430; Miller v. Marks, 20 Mo.App. 369; Phillips v. Marks, 21 Mo.App. 38.
Division Two: Burgess, J. Gantt, J., concurs. Sherwood, J., not concurring. IN BANC: Brace, C. J., Barclay, Gantt, Macfarlane and Burgess, JJ., concurring, Sherwood, J., dissenting.
In Banc.
This is an action brought by plaintiff for damages caused by the destruction by fire of nursery stock, the property of plaintiff, alleged to have been set out by an engine or engines of, or operated by, defendant upon its railroad.
The petition contains two counts for injuries to the property, occasioned at different times, the causes of action being bottomed upon the provisions of sections 1 and 2, of an act of the General Assembly of the State of Missouri, entitled "An act to establish the responsibility of railroad corporations, companies and persons owning or operating railroads, for damages by fires communicated by locomotive engines." Approved March 31, 1887, R. S. 1889, sec. 2615.
The petition alleges that the defendant was a railroad corporation and owned and operated a railway through Laclede county, Missouri, in March and April, 1888; that at that date it operated and ran a locomotive engine and did "scatter coals, sparks, and brands of fire from the locomotive engines along the right of way of defendant" setting out a fire causing the damages alleged.
It does not allege any negligence on the part of defendant in operating its road, or in the management of its cars or locomotives.
The answer to both counts was a general denial, and as a further defense averred that the alleged causes of action as set out in the different counts in the petition were founded upon the act of the legislature aforesaid which act "defendant avers is illegal, unconstitutional and void, in that it seeks to deprive the defendant of its property without due process of law, contrary to the provisions of section 30, of article 2, of the Constitution of the State of Missouri."
As a further defense to both counts, defendant averred that the alleged causes of action were founded upon the act of the legislature above named, which "is illegal unconstitutional and void, in that it denies to the defendant the equal protection of the laws, contrary to the provisions of section 1, of...
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