Beckler Produce Company v. American Railway Express Company

• Decision Date: 18 December 1922
• Docket Number: 56
• Citation: 246 S.W. 1,156 Ark. 296
• Parties: BECKLER PRODUCE COMPANY v. AMERICAN RAILWAY EXPRESS COMPANY
• Court: Arkansas Supreme Court

246 S.W. 1

BECKLER PRODUCE COMPANY v. AMERICAN RAILWAY EXPRESS COMPANY

156 Ark. 296

No. 56

Supreme Court of Arkansas

December 18, 1922

Appeal from Arkansas Circuit Court, Northern District; George W Clark, Judge; affirmed.

STATEMENT OF FACTS.

On the 16th day of July, 1918, J. B. Polk delivered to the Wells Fargo & Company Express at Stevens, Ark., twenty bushels of peaches to be shipped by express to Beckler Produce Company at Stuttgart, Ark. The express company failed to deliver the peaches to the consignee, and this resulted in a loss to it of $ 48.66.

The American Railway Express Company took over all the property belonging to the Wells Fargo & Company Express, and assumed all its debts and liabilities.

The Beckler Produce Company gave notice, as required by the statute, within twenty days of the loss of the peaches while in transit. The express company failed to pay the claim, and the consignee sued it to recover damages for the loss of the peaches and also for the sum of $ 1,743.66, being the sum of $ 2 for each day from the date of the failure of the express company to pay the claim commencing August 21, 1918, and continuing to the 10th of January, 1921, the day this suit was filed.

The court directed the jury to return a verdict for the value of the peaches sued for, and instructed it not to consider the allegations of the complaint as to the statutory penalty.

The jury returned a verdict in the sum of $ 48.66 with interest at 6 per cent. from July 18, 1918, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

Judgment affirmed.

E H. Timmons, for appellant.

The two-year statute of limitations does not apply. Sec. 6954, C. & M. Dig. The statutory liability here comes under § 6950, sub-sec. 1, C. & M. Dig. The statute creating this liability is remedial. 68 Ark. 433; 95 Ark. 327; 58 Ark. 407; 100 Ark. 248; 90 F. 220; 12 Ga. 104. The burden was on defendant to prove the action was barred. 86 Ark. 309; 92 Ark. 465.

Bridges & Wooldridge, for appellee.

No proper bill of exceptions has been filed, and the case should be affirmed. 147 Ark. 197. The case should be affirmed under Rule 9. 143 Ark. 388.

Sec 6954, C. & M. Dig., applies, as this is for the recovery of a penalty. 59 Ark. 165; 82 Ark. 309; 256 U.S. 554.

E H. Timmons, for appellant, in reply.

The bill of exceptions is sufficient. 147 Ark. 197. The abstract is sufficient. 74 Ark. 320; 143 Ark. 388.

OPINION

HART, J. (after stating the facts).

Under our statutes express companies shall settle in twenty days after notice given for the loss of goods in transit. Crawford & Moses' Digest, § 936.

The statute further provides that any express company refusing to pay a claim within twenty days after notice given shall be liable in damages to the owner of the goods to the amount of damages sustained by the loss, and also the sum of $ 2 for each day that the express company fails and refuses to settle after the twenty days' notice has been given. Crawford & Moses' Digest, § 937.

Counsel for the express company contend that the statute, in so far as it provides a continuing penalty of $ 2 per day after failure to settle, is unconstitutional, because the amount allowed is arbitrary and excessive.

In Seaboard Air Line v. Seegers, 207 U.S. 73, 52 L.Ed. 108, 28 S.Ct. 28, it was held that a State statute may, without violating the equal protection clause of the Fourteenth Amendment, put into one class all engaged in business of a special and public character, and require them to perform a duty which they can do better and more quickly than others, and impose a not exorbitant penalty for the non-performance thereof.

Statutes of this character do not violate the due process or equal protection clauses of the State and Federal Constitutions; but, on the contrary, merely provide a reasonable incentive for the prompt settlement, without suit, of just demands of a class admitting of special legislative treatment; and in this connection it may be said that such statutes are not objectionable in so far as intrastate shipments are concerned. Yazoo & Miss. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193, 33 S.Ct. 40; and St. Louis, I. M. & So. Ry. Co. v. Williams, 131 Ark. 442, 199 S.W. 376, affirmed in 251 U.S. 63, 64 L.Ed. 139, 40 S.Ct. 71.

So it may be said that, in general, the amount of the penalty prescribed is a matter for the Legislature to determine in its discretion, and courts will not interfere with its discretion in the premises as long as it keeps within the fair and reasonable scope of its power.

We are of the opinion, however, that the penalty exacted in the statute under consideration is so exorbitant and unreasonable as to render the statute unconstitutional. The statute provides a continuing penalty of $ 2 per day, and leaves it to the discretion of the owner of the goods to bring suit at any time within the period of the statute of limitations.

In the instant case the shipment consisted of twenty bushels of peaches valued at $ 48.66, and the penalty asked for amounted to $ 1,740. This amount is unreasonable, and serves to defeat the beneficent purpose of the statute, which, as we have said, was to compel the carrier to perform with reasonable diligence the duty which peculiarly appertains to...