Pierce v. Chicago & Northwestern Railway Co.

• Decision Date: 26 September 1917
• Docket Number: 30289
• Citation: 164 N.W. 182,180 Iowa 1385
• Parties: GEORGE L. PIERCE, Appellee, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

164 N.W. 182

180 Iowa 1385

GEORGE L. PIERCE, Appellee, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant

No. 30289

Supreme Court of Iowa, Des Moines

September 26, 1917

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

ACTION for damage consequent on the alleged killing of a two-year old colt on defendant's right of way resulted in judgment against defendant, from which it appeals.--Reversed.

Motion for judgment for the actual damages, sustained.

Binford & Farber, James C. Davis and George E. Hise, for appellant.

Bradford & Johnson, for appellee.

LADD J. GAYNOR, C. J., WEAVER, EVANS, SALINGER and STEVENS, JJ concur. PRESTON, J., dissents.

OPINION

LADD, J.

The defendant's line of railway extends through the town of Quarry, and is double tracked. A highway extends north and south immediately west of the town, and intersects the railway. In the morning of December 2, 1912, at about 6:10 o'clock, a two-year colt was found lying dead on the cattleguard at the east side of the highway. Suit was brought for the value of the colt, it being alleged that it had gotten on the right of way in consequence of defendant's failure to maintain a sufficient fence along the railroad and was killed by the operation thereof. The jury so found and allowed in their verdict double damages in the sum of $ 380, thereby fixing the reasonable value of the colt as $ 190. Thereupon defendant moved that judgment be entered for this latter amount only, for that plaintiff had demanded more than the reasonable value of the colt in his notice and affidavit, and this being so, he was not entitled to double damages. The same thought was included in several instructions, which were refused. We are of opinion that the motion should have been sustained. To hold otherwise would, in effect, result in penalizing defendant for not yielding to an unjust demand.

Section 2055 of the Code, 1897, declares that:

"Any corporation operating a railway, and failing to fence the same against live stock running at large and maintain proper and sufficient cattleguards at all points where the right to fence or maintain cattle-guards exists, shall be liable to the owner of any stock killed or injured by reason of the want of such fence or cattle-guards for the full amount of the damages sustained by the owner on account thereof, unless it was occasioned by his wilful act or that of his agent; and to recover the same it shall only be necessary for him to prove the loss of or injury to his property. If such corporation fails or neglects to pay such damages within thirty days after notice in writing that a loss or injury has occurred, accompanied by an affidavit thereof, served upon any officer or station or ticket agent employed by said corporation in the county where such loss or injury occurred, such owner shall be entitled to recover from the corporation double the amount of damages actually sustained by him."

The notice and affidavit of plaintiff fixed the value of the colt at $ 200, and demanded payment thereof within 30 days. A statement of the value was an essential part of the notice and affidavit. Manwell v. Burlington, C. R. & N. R. Co., 80 Iowa 662, 45 N.W. 568; Mendell v. Chicago & N.W. R. Co., 20 Iowa 9. No other demand was essential to the recovery of double damages.

The statute has been upheld as constitutional (Minneapolis & St. L. R. Co. v. Beckwith, 129 U.S. 26 [32 L.Ed. 585, 9 S.Ct. 207], and evidently was enacted to assure to the owners of live stock prompt payment of actual damages for the loss or injury thereof consequent on the failure of railroad corporations to maintain a sufficient fence along their right of ways. Nothing contained therein, however, evidences a purpose of aiding the owner to exact anything in excess of the reasonable value of stock destroyed or the fair remuneration for injuries done. The object is to induce prompt, not excessive, payment. The fair implication is that the amount demanded in order to exact payment within 30 days is the fair and reasonable measure of the loss or injury suffered, and if more is claimed, the penalty of doubling the damages will not be enforced. In refusing to pay an excessive claim, the company is guilty of no wrong. On the contrary, it is to be commended for not paying it and thereby encouraging efforts at extortion. The owner is in much better situation than the railroad company to ascertain the value of his own stock when killed or the amount of damages when injured, and, to the end that adjustment shall be prompt and controversy avoided, he should ask no more than he is fairly entitled to claim, and, if he does, there is no tenable ground in law or good morals for punishing the railroad company for not satisfying his demand. In St. Louis, I. M. & S. R. Co. v. Wynne, 224 U.S. 354 (56 L.Ed. 799, 32 S.Ct. 493), the statute involved was similar to ours, exacting payment of double damages and attorney's fees if actual damages were not satisfied within 30 days after notice. Two horses were killed, and in the notice their value was stated to be $ 500. The defendant did not pay within the time required, whereupon suit was brought for $ 400 as damages, and, on trial, the damages were found to be as so alleged. The trial court, deeming the statute applicable, entered judgment for $ 800 and attorney's fees. It will be observed that the owner admitted and the jury found...