St. Louis, B. & M. Ry. Co. v. Price

• Court: Texas Supreme Court
• Writing for the Court: Powell
• Citation: St. Louis, B. & M. Ry. Co. v. Price, 269 S.W. 422 (Tex. 1925)
• Decision Date: 18 February 1925
• Docket Number: (No. 474-3910.)
• Parties: ST. LOUIS, B. & M. RY. CO. v. PRICE.

269 S.W. 422

ST. LOUIS, B. & M. RY. CO. v. PRICE.

(No. 474-3910.)

Commission of Appeals of Texas, Section B.

February 18, 1925.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by C. E. Price against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff was affirmed by Court of Civil Appeals (244 S. W. 642), and defendant brings error. Affirmed.

Graham, Jones, William & Ransome, of Brownsville, and E. H. Crenshaw, Jr., of Kingsville, for plaintiff in error.

Canales & Davenport, of Brownsville, for defendant in error.

POWELL, P. J.

The nature and result of this case have been accurately stated by the Court of Civil Appeals as follows:

"Appellee filed this action against appellant to recover damages to his person and to his automobile through a collision between the automobile and a car operated by appellant. It was alleged that on or about September 6, 1920, appellee drove his new Cadillac automobile on the crossing of the railway by a public road, and was struck by a baggage car, which was pushed by a locomotive against his automobile destroying it and seriously and permanently injuring appellee. Appellant filed general and special exceptions and a general denial, and pleaded contributory negligence in that appellee was running upon the track at an illegal speed, and not using any care to discover approaching trains. The cause was submitted to a jury on 27 special issues, and on the answers thereto judgment was rendered in favor of appellee for $2,175. The cause is before this court on assignments of 32 errors."

Upon appeal to the Court of Civil Appeals that court approved the trial court's award as to damages to the car in the sum of $1,675. But it found that there was no pleading to sustain the award totaling $200 for injuries to the spine and right arm of Price. Therefore it required a remittitur of $200. The latter was forthcoming, and, as so reduced, the judgment of the trial court was affirmed. See 244 S. W. 642.

The controlling question before this court is the correctness or incorrectness of the following portion of the opinion of the Court of Civil Appeals:

"The evidence showed that appellee had no license from the state to operate an automobile, and it is the contention of appellant that it could not be held liable for destroying his property and injuring his person, unless, as in the case of any trespasser, it discovered his peril in time to have prevented the collision. We cannot sustain such a theory. The failure to have the license did not in any manner contribute to the collision, unless we apply the far-fetched rule that, if he had not violated the law, he would not have been in the automobile, and consequently could not have driven on the crossing, and consequently would not have been struck. The act of appellee in failing to get a license did not in any manner contribute to the collision."

Price had traded for this secondhand car in Ellis county. He went on to Cameron county and negligently failed to procure a new license number for 1920, the year the accident happened. Under our Penal Code, Act of 1917 (Vernon's Ann. Pen. Code Supp. 1918, art. 820a), it is provided:

"Any person owning and operating a motor vehicle or motorcycle on the public highways of this state after the taking effect of this act, without the number plates displayed thereon, in accordance with the requirements of this act, or anyone owning and operating a motor vehicle or motorcycle, without the distinguishing seal provided by the department for each year, shall be guilty of a misdemeanor and, upon conviction, shall be fined in any sum not less than ten ($10.00) dollars nor more than twenty-five ($25.00) dollars for each violation, and each day such motor vehicle or motorcycle is operated upon the highways of the state in violation of the provisions of this act, shall constitute a separate offense."

Our statutes further provide that fines so imposed shall "constitute a special maintenance fund to be expended upon the public roads of the respective counties where collected."

It is the contention of the railway company that, since this penal statute was violated by Price, he was a trespasser or outlaw when injured, and cannot recover, since the jury found he was not willfully, wantonly, or recklessly injured by the company's employees. The important query is whether or not a violation of this statute, constituting a misdemeanor, deprives Price of his right to have operatives of trains exercise ordinary care to avoid injuring him. This is a new question in the Supreme Court of our state. The railway company relies upon the decisions of the Supreme Court of Massachusetts. That court does hold that the failure to comply with the statute of this kind renders the motor driver an outlaw to whom no care is owed except to refrain from willfully injuring him. The doctrine in Massachusetts had its origin in the old Puritanical laws against violation of the Sabbath, when no one was supposed to be on the streets except to go to church or meet some real emergency.

The leading Massachusetts case involving an unlicensed or unregistered automobile, and announcing aforesaid doctrine, is that of Dudley v. Northampton St. Ry., 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561. This last-mentioned decision was by a divided court. That same court, in later decisions, has shown some reluctance in following the Dudley Case. For instance, in Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404, 35 L. R. A. (N. S.) 701, the court, commenting on the Dudley Case, said:

"Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed, and is now the established law of the commonwealth."

Again, it is interesting to note that the Massachusetts court refuses to enlarge the registration holding or broaden it out to other automobile regulation statutes. A notable example of this is to be found in the case of Bourne v. Whitman, supra, where it is held that the law of these * * * cases should not be extended to the provision of the statute requiring each operator to have a personal license to operate the car. But Massachusetts is tied to its decisions in such a way that we are frank to say that, if its Supreme Court had the case at bar before it, that court would probably render judgment in favor of the railway company. So far as we can find, no other state follows this Massachusetts doctrine. Most of the states have very similar statutes, all of recent enactment, regulating the registering and licensing of automobiles.

Mr. Huddy has written a rather exhaustive discussion on the law of automobiles. On page 154 et seq., §§ 126 and 137, he declares that, as to the effect of nonregistration and nonlicense of cars, the other states have not followed the Massachusetts court, and that the great weight of authority is against the Massachusetts doctrine. The author cites cases from Wisconsin, Washington, Pennsylvania, Rhode Island, Virginia, Alabama, California, Florida, Illinois, Iowa, Kansas, Kentucky, Minnesota, and Missouri.

In considering this same question in another case (Pyeatt v. Anderson [Tex. Com. App.] 269 S. W. 429) now before us, Judge Gill, of counsel for plaintiff, states:

"The following cases from various states of the union repudiate the Massachusetts doctrine and sustain our contention: Black v. Moree, 135 Tenn. 73, 185 S. W 682; Cobb v. Cumberland, supra; Railway Co. v. Moore, 149 Ga. 581, 101 S. E. 668; Hersman v. Roane Co., 86 W. Va. 96, 102 S. E. 810; Southern Ry. Co. v. Vaughan, 118 Va. 692, 88 S. E. 305, L. R. A. 1916E, Ann. Cas. 1918D, 842; Stack v. General Baking Co., 283 Mo. 396, 223 S. W. 89; Armstead v. Lounsberry, 129 Minn. 34, 151 N. W. 542, L. R. A. 1915D, 628; Railway v. Ætna, 184 Ala. 601, 64 So. 44; Hemming v. City, 82 Conn. 661, 74 A. 892, 25 L. R. A. (N. S.) 734, 18 Ann. Cas. 240; Railway v. Weir, 63 Fla. 69, 58 So. 641, 41 L. R. A. (N. S.) 307, Ann. Cas. 1914A, 126; Shaw v. Thielbahr, 82 N. J. Law, 23, 81 A. 497; Moore v. Hart, 171 Ky. 725, 188 S. W. 861; Barber v. B. Buonanni Co., 179 Iowa, 642, 161 N. W. 688; Derr v. Chicago, M. & St. P. R. Co., 163 Wis. 234, 157 N. W. 753; Switzer v. Sherwood, 80 Wash. 19, 141 P. 181, Ann. Cas. 1917A, 216; Salo v. P. Coast Casualty Co., 95 Wash. 109, 163 P. 385, L. R. A. 1917D, 613; Dervin v. Frenier, 91 Vt. 398, 100 A. 760; Marquis v. Messier, 39 R. I. 563, 99 A. 527; Shimoda v. Bundy, 24 Cal. App. 675, 142 P. 109."

We think, after careful reading, that Judge Gill is correct in above statement.

It is interesting to quote from a few of the decisions repudiating the Massachusetts doctrine. A very able opinion is that of the Supreme Court of Maine in the case of Cobb v. Cumberland County Power & Light Company, 117 Me. 455, 104 A. 844. The statutes of Maine are practically identical with our own. In this Cobb Case, the court says:

"We therefore take up our own statute, with a view to determining whether the Legislature, in the case of nonregistration, has created a duty to other travelers on the highway, or only a public duty to be enforced in the ordinary administration of the criminal law; in other words, whether the offender is in effect penalized beyond the express provisions of the statute.

"The general rule, which needs no citation of authorities, is that penal statutes are to be construed strictly, and not to be extended beyond their obvious import. The penalties to be imposed are those expressed in clear and explicit terms. Inferential penalties are not to be discovered and enforced."

We must determine, therefore, whether the Legislature of Texas intended, not only to punish the offender by imposing a nominal penal fine, but also by withdrawing from him the right to demand the exercise of ordinary care by those who operate locomotives across public highways. We do not think the Legislature so intended. Upon this point, ...