Kansas City Southern Railway Company v. Anderson

• Decision Date: 01 July 1912
• Citation: 149 S.W. 58,104 Ark. 500
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. ANDERSON
• Court: Arkansas Supreme Court

149 S.W. 58

104 Ark. 500

KANSAS CITY SOUTHERN RAILWAY COMPANY v. ANDERSON

Supreme Court of Arkansas

July 1, 1912

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

Read & McDonough, for appellant.

1. The act upon which the penalty and attorney's fee are based is unconstitutional. Section 1, Fourteenth Amendment, U. S Const.; Acts 1907, p. 144; 165 U.S. 169; 97 Ark. 100; 207 U.S. 73, cases cited at p. 77; 61 P. 307; 105 F. 31; 24 Am Dec. 511; 47 L. R. A. 343; 49 Ark. 492; 38 S. E. (Ga.) 67; 70 Mich. 382; Id. 433; Id. 620; 71 Mich. 35; 44 P. 149; 41 S.E. 240; 41 S.W. 684; 65 Ala. 193; 60 Miss. 641; 106 Ala. 501; 27 Col. 107.

2. On appeal from justice's court to the circuit court, it is not permissible to introduce a new cause of action by way of amendment. Kirby's Dig., § 4682.

James S. Steel, J. S. Lake and James D. Head, for appellee.

1. Appellant's objections to the constitutionality of the act are all settled by this court contrary to appellant's contentions in 90 Ark. 538.

2. Appellant's objections to the amendment comes too late. It should have raised the issue in the lower court. However, the amendment did not state a new cause of action, and it was in the trial court's discretion to permit it to be filed. Kirby's Dig., §§ 6081, 6082; 143 S.W. 577; 59 Ark. 441-446; 96 Ark. 524-529; 85 Ark. 246 and 251; 74 Ark. 615; 68 Ark. 71; 70 Ark. 244; 73 Ark. 530; 69 Ark. 140; 64 Ark. 305; Id. 253.

3. Where the proof shows that an animal was killed by a train operated by a railway company, and no evidence is introduced to rebut the statutory presumption of negligence, a peremptory instruction to find for the plaintiff is justified.

OPINION

FRAUENTHAL, J.

This is an appeal from a judgment awarding to appellee double damages and attorney's fees for a mare killed by one of appellant's trains. The appellant seeks a reversal of the judgment for the reason that errors, as it claims, were committed by the lower court in the trial of the case, but principally upon the ground that the act of the Legislature approved February 27, 1907 (Acts of 1907, p. 144), under which the recovery for double damages and attorney's fee was allowed, is unconstitutional and void. The suit was originally brought by appellee before a justice of the peace for the recovery of $ 50, the alleged value of the mare. From a judgment in his favor, an appeal was taken to the circuit court. In that court appellee filed an amendment to his complaint or claim, in which he alleged that appellant had failed and refused to pay for said mare for more than thirty days after notice had been served and demand made upon it for the value thereof, in accordance with said act, and therein he asked for double damages and attorney's fee by virtue of its provisions.

It is urged that this amendment in effect set up a new cause of action, and that the circuit court erred in permitting it to be made. No objection was made by the appellant to the filing of the amendment nor to the order of the circuit court permitting it to be made. The appellant then filed its answer to this amended complaint and joined issue thereon. Even if by this action the appellant did not enter its appearance to this additional claim and waive the objection it now urges (Kansas City So. Ry. Co. v. Tonn, 102 Ark. 20, 143 S.W. 577), we are of opinion that this claim for double damages and attorney's fee was not a new cause of action. The cause of action upon which appellee's suit is based is the wrongful killing of his mare, and the amount of the recovery given by the above act is the damage arising out of the cause of action. It has been repeatedly held by this court that, after an appeal is taken from a justice of the peace court, the circuit court may permit an amendment by adding claims which were not included in the original demand or by increasing the amount of such demand, only keeping out new causes of action. St. Louis, I. M. & S. Ry. Co. v. Bryant, 92 Ark. 425, 122 S.W. 996.

It is urged that the court erred in admitting certain testimony and in the instructions it gave. The exception made by the appellant to the court's ruling in admitting said testimony over its objection has not been preserved by making it an assignment of error in its motion for a new trial; for this reason the alleged error can not be reviewed by us on this appeal.

The court instructed the jury to return a verdict in favor of the plaintiff and to assess the amount of his damages at the reasonable cash market value of the mare at the time and place she was killed. It is contended that the right of appellee to recover should have been submitted to the jury. The uncontroverted evidence shows that the mare was killed by one of defendant's trains. There was no testimony adduced showing or tending to show that appellant or its employees exercised ordinary care, or were free from negligence at the time the mare was killed. It has been repeatedly held that, by virtue of our statute imposing liability upon railroad companies for injury done to property by the running of their trains, a prima facie case of negligence is made out by proof of the injury done by the running of such trains. This presumption of negligence may be rebutted by evidence; but, if this is not done, then the presumption of negligence becomes conclusive. The court therefore did not err in the instruction given. Midland Valley Rd. Co. v. Skinner, 99 Ark. 370, 138 S.W. 969.

It is earnestly contended that the above act of the Legislature imposing upon a railroad company double damages and attorney's fees for failure to pay for stock killed by its trains is unconstitutional and void in that it deprives it of its property without due process of law. In the case of St. Louis, I. M. & S. Ry. Co. v. Wynne, 90 Ark. 538, 119 S.W. 1127, the constitutionality of this statute was challenged. After a careful consideration of the question, this court held that the statute is valid. The case was then carried by writ of error to the Supreme Court of the United States, and the judgment was by that court reversed. It is urged by counsel for appellant that the Supreme Court of the United States in that case determined that this statute, as construed by this court, is violative of the provision of the Constitution inhibiting the taking of property without due process of law, and for that reason is invalid; and that the statute therefore is void, inasmuch as the construction placed thereon by this, the highest court of the State in which it was enacted, fixed its meaning and its application. But the Supreme Court of the United States expressly refrained from passing upon the constitutionality of this statute. In the opinion delivered it said; "In the brief for the railway company, the contention is advanced that the statute would still be wanting in due process of law, were it construed as imposing double liability with an attorney's fee only where the prior demand is...