Chattanooga Ry. & Light Co. v. Bettis

• Decision Date: 27 February 1918
• Citation: 202 S.W. 70,139 Tenn. 332
• Parties: CHATTANOOGA RY. & LIGHT CO. v. BETTIS.
• Court: Tennessee Supreme Court

202 S.W. 70

139 Tenn. 332

CHATTANOOGA RY. & LIGHT CO. v. BETTIS.

Supreme Court of Tennessee.

February 27, 1918

Certiorari to Court of Civil Appeals.

Action by K. H. Bettis against the Chattanooga Railway & Light Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings certiorari. Affirmed.

GREEN J.

In this case there was a judgment below for the value of a pig killed by a street car belonging to the plaintiff in error. This judgment was affirmed by the Court of Civil Appeals, and the case has been brought before us by petition for certiorari.

It is not denied in this court that there was some evidence of negligence on the part of the motorman in charge of the street car. Plaintiff in error, however, insists that the owner of the pig cannot recover, inasmuch as it was at large at the time it was killed, in violation of a stock law said to have been in force in Hamilton county.

The plaintiff in error relies on chapter 23 of the Acts of 1899 which made it unlawful to permit stock to run at large in Hamilton county and other large counties of the state.

The lower courts were of opinion that the said act was repealed by implication by chapter 269 of the Acts of 1911, which undertook to provide for lawful fences in Hamilton county. Plaintiff in error insists that the Act of 1911 is unconstitutional, inasmuch as it purports on its face to be an act which repeals a former act of the Legislature without reciting the title or substance of said former act, as section 17 of article 2 of the Constitution requires. We do not think the act of 1911 is unconstitutional. While it does not sufficiently refer to the title of the act it undertakes to repeal, it does make adequate reference to the substance of the former act, and this is sufficient. State v Runnels, 92 Tenn. 320, 21 S.W. 665; Ransome v State, 91 Tenn. 716, 20 S.W. 310; State ex rel. v Gaines, 69 Tenn. (1 Lea) 734.

We do not agree with the lower courts that the act of 1911 worked a repeal by implication of the act of 1899. The act of 1899 applies to all of Hamilton county and to the other larger counties of the state. The act of 1911 only applies to the rural districts of Hamilton county, the incorporated towns in that county being excepted from its provisions; so that the two statutes do not cover the same field.

Just how far the earlier act is modified by the later one we do not feel called upon to determine in this case. For the purposes of this opinion we may concede that the act of 1899 is in force in Hamilton county, and that the pig killed was at large in violation of said statute. Nevertheless we think that the owner is still entitled to recover for its value, it not being controverted that the evidence showed some negligence on the part of the motorman in charge of the car which killed it.

We are aware that it has been held in several jurisdictions that an owner of animals allowing them to be at large in violation of stock laws is guilty of such contributory negligence as to bar his recovery for the negligent injuring of the animals by another. To this effect seem to be Central Branch R. Co. v. Lea, 20 Kan. 353; Kansas City, etc., R. Co. v. McHenry, 24 Kan. 501; Railroad Co. v. Cocke, 64 Tex. 151; Locke v. Railway, 15 Minn. 350 (Gil. 283), and perhaps other cases.

We are not able, however, to follow these authorities.

This court has declared that:

"Generally speaking, the violation of a rule of the common law, a statute, or an ordinance of a municipality, or failure to discharge and perform a duty so imposed in the interest of the public, is actionable negligence, and any one coming within the protection of the law, or intended to be benefited by it, who suffers an injury peculiar to himself, the proximate cause of which is the violation or nonperformance of the law, may maintain an action against the offender for the injuries sustained by him." Adams v. Inn Co., 117 Tenn. 470, 101 S.W. 428.

This principle has also been declared in Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S.W. 460, 30 L. R. A. 82, 49 Am. St. Rep. 935; Weeks v. McNulty, 101 Tenn. 495, 48 S.W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693; Iron & Wire Co. v. Green, 108 Tenn. 161, 65 S.W. 399; Railway v. Haynes, 112 Tenn. 712, 81 S.W. 374.

It has been argued that the violation of a statute constituted merely a breach of duty to the state, and that the only remedy was the public remedy or a prosecution by the authorities of the state.

In Pauley v. Steam Gauge, etc., Co., 131 N.Y. 90, 29 N.E. 999, 15 L. R. A. 194, upon which our pioneer case of Queen v. Dayton Coal & Iron Co., supra, was based, the New York Court of Appeals rejected the argument just referred to, and said:

"The rule applies that when a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage or for a wrong done to him contrary to its terms." Pauley v. Steam Gauge, etc., Co., supra, following Willey v. Mulledy, 78 N.Y. 310, 34 Am. Rep. 536.

In order to found an action on the violation of a statute, or ordinance, these cases make it plain that the person suing must be such a person as is within the protection of the law and intended to be benefited thereby.

"And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual, unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages, and often not then, the question depending upon judicial theories and surmises." Thompson on Negligence (2d Ed.) § 12.

By a parity of reasoning, in order to justify a defendant in pleading the breach by plaintiff of a statute as a bar to a suit founded on defendant's negligence, it should appear that the statute was intended to prevent such accidents as that for which redress is sought. In other words, it should appear that the defendant, in the prosecution of the activity which resulted in the injury, was under the protection of the statute, or that the scene of defendant's activity was so protected. We think that one not a beneficiary of a statute may neither base an action nor a defense on a violation thereof. Unless an individual be within the province of a...