St. Louis, I. M. & S. Ry. Co. v. Wynne

• Decision Date: 10 May 1909
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. WYNNE.
• Court: Arkansas Supreme Court

119 S.W. 1127

ST. LOUIS, I. M. & S. RY. CO. v. WYNNE.

Supreme Court of Arkansas.

May 10, 1909.

Appeal from Circuit Court, Desha County; Antonio B. Grace, Judge.

Action by T. J. Wynne against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Kinsworthy and Lewis Rhoton, for appellant. Wiley & Clayton, for appellee.

McCULLOCH, C. J.

This is an action against the railway company to recover damages for killing two horses by a train. The jury rendered a verdict in favor of the plaintiff, assessing the value of the horses at the amount mentioned in the complaint, and the court rendered judgment for double the value and for attorney's fees, pursuant to the terms of the statute, and the company appealed.

The constitutionality of the statute authorizing the assessment of double damages and attorney's fees is challenged. The statute is as follows: "Whenever any stock, such as horses, cows, hogs, sheep, etc., are killed, wounded or injured by railroad trains running in this state, the conductor or engineer on the train doing the damage shall cause the station master or overseer at the nearest station house to the killing or wounding to post within one week thereafter, and to keep posted for twenty days thereafter, a true and correct description of such stock as may have been so killed or wounded at the nearest station house and nearest depot house, giving a true and correct description of the color, marks, brands and other natural description, that may assist in identifying such stock, and the time when and place where killed or wounded; and on failure to so advertise any stock so killed or wounded, the owner shall recover double damages for all stock killed and not advertised. And said railroad shall pay the owner of such stock within thirty days after notice is served on such railroad by such owner. Failure to do so shall entitle said owner to double the amount of damages awarded him by any jury trying such cause, and a reasonable attorney's fee. And provided further, that if the owner of such stock killed or wounded shall bring suit against such railroad after the thirty days have expired, and the jury trying such cause shall give such owner a less amount of damage than he sues for, then such owner shall recover only the amount given him by said jury and not be entitled to recover any attorney's fees." Act Feb. 27, 1907 (Acts 1907, p. 144), amending section 6774, Kirby's Digest.

Notice of the damage was given to the company in compliance with the statute. There was a failure to pay, and the jury awarded the amount of damages sued for.

The statute is attacked on the ground that it is one to prescribe a penalty against railroad corporations for failure to pay its debts within a limited time. Such is not the design of the legislation. It applies to all carriers by rail, but is limited to damages for killing live stock by the operation of trains, when compensation for the damage is not paid within 30 days after notice. The statute, before it was amended by the act of 1907, provided only for double damages in case of failure on the part of the carrier to post notice with description of the stock killed. This court declared it to be valid, and at the same time disapproved a decision of the Supreme Court of Nebraska (Railroad v. Baty, 6 Neb. 46, 29 Am. Rep. 356) declaring invalid a statute like the one now under consideration. L. R. R. & Ft. S. R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; M. & L. R. R. Co. v. Horsfall, 36 Ark. 651. This court, and also the Supreme Court of the United States, has upheld a statute prescribing a penalty against insurance companies for failure...