Valley Lumber Company v. Westmoreland Brothers
| Decision Date | 18 June 1923 |
| Docket Number | 50 |
| Citation | 252 S.W. 609,159 Ark. 484 |
| Parties | VALLEY LUMBER COMPANY v. WESTMORELAND BROTHERS |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; George R. Haynie, Judge; reversed.
Judgment reversed and cause remanded.
Gaughan & Sifford and R. P. Hamby, for appellant.
The statute, C. & M. Digest, § 8569, fixing a liability against railroads for damages caused by fire from operation of trains, only applies to railroads operated as common carriers and not to corporations or persons operating railroads in connection with their industrial business or enterprises. Our court expressed doubt as to validity of this statute with respect to persons other than chartered railroad corporations. Ry. v. Shore, 89 Ark. 423. Held classification of such roads, carriers, for such regulation not unreasonable. 186 F. 139. If statute applicable to railroads not common carriers it is unconstitutional. Court erred in refusing to allow defendant to plead gross contributory negligence on part of plaintiff. Defendant's proper instruction No. 5 on this point was erroneously refused by the court. 121 Ark. 585. Court erred in refusing to give defendant's requested instruction No 9. 132 Ark. 257. Section 85, C. & M. Digest, not applicable because of the contractual relationship between the parties. 97 Ark. 287; note 16 A. L. R. 304; 54 P. 553. 13 N.E. 370 construes a similar statute. Court erred in its instructions relative to question of notice posted by defendant and in giving No. 2. 145 Ark. 306; 23 Ark. 735; 58 Ark. 84; 58 Ark 446. Verdict of the jury is contrary to the evidence, and excessive.
Tompkins, McRae & Tompkins, for appellees.
The agreement relieving the appellant from liability for damage to staves by fire was made after the fire destroyed the staves herein. The statute is constitutional. 89 Ark. 418; 16 Ann. Cas. 939, note. All parties liable at common law absolutely for damage caused by fire escaping from their premises. 3 L. R. A. 350; 165 U.S. 1; 11 R. C. L. 940; note 21 L. R. A. 255. It is true this common-law rule was never followed in this State, but the statute reenacting it is valid. No improper classification by this statute. 49 Ark. 291; 58 Ark 407. Classification reasonable. 127 U.S. 205; 170 U.S. 283; 60 L. R. A. 308; 68 L. R. A. 622; 14 L. R. A. (N. S.) 418; 175 U.S. 348; Am. Cas. 1918-A, 627 (Ind.). State reserved authority to amend charters, and could have provided for this liability. 87 Ark. 587. The evidence fully sustains the verdict, and the court properly refused to give defendant's requested instruction No. 9. Clark v. Ry., cited by appellant, is an authority against rather than for its position. There was no contractual relation that would defeat a recovery under statute. Case of 97 Ark. 287 not in point. 142 Ark. 41; 101 Ark. 75. No abuse of discretion to refuse to allow appellant to amend its answer. 120 Ark. 595; 104 Ark. 276. Jury was properly instructed on question relative to the notices.
Gaughan & Sifford and R. P. Hamby, in reply.
The statute cannot be upheld under police power of the State. 18 L. R. A. 440. The rule of law in force prior to passage of statute should apply in this case, under which negligence was a prerequisite to recovery. There was a contractual relation between the parties. 60 Ark. 333. In 142 Ark. 41 the question of relationship of the parties was not undisputed, as herein.
Westmoreland Brothers, hereafter called appellees, were a partnership engaged in the manufacture of staves in Nevada County. The Arkadelphia Milling Company had advanced money to the appellees on the staves manufactured by them. The Valley Lumber Company, hereafter called the appellant, is a domestic corporation which operated a sawmill at Reeder, in Ouachita County, Arkansas, and it operated a logging road extending from its mill into Nevada County. The appellant was not a common carrier and did not maintain any published tariffs, but handled shipments of freight by special contract with the shippers. The appellees entered into an agreement with the manager of the appellant that the appellees would put their staves along appellant's right-of-way, on which a spur track was afterwards located. The appellees began to place their staves on this right-of-way some time in September or October, 1919. On account of unusual conditions the appellant was unable to haul them out at that time, and because of unfavorable logging conditions appellant abandoned operations on its spur until August, 1920. About ten days after it started operating again the staves were destroyed by fire.
In December, 1921, appellees instituted this action against the appellant. They alleged, in substance, that the appellant, in operating its locomotive and engine over its line of railroad in Nevada County, set out fire which resulted in the burning of 76,400 staves stacked along the right-of-way of appellant, to appellees' damage in the sum of $ 6,122, for which they prayed judgment.
The appellant, in its answer, denied that it had destroyed the staves of the appellees; denied that the staves were stacked along its right-of-way with the knowledge and consent of the appellant. The appellant alleged that the appellees were relying on § 8569 of Crawford & Moses' Digest, which is set out at length in its answer, and set up that the appellant was not liable under this section of the statute, for the reason that to apply the statute would have the effect of depriving it of its property without due process of law and to deny it equal protection of the law. Appellant denied that the fire was caused by the carelessness of its agents or servants. It denied that the appellees were damaged as alleged in their complaint.
The testimony on behalf of the appellees tended to prove that the staves in controversy, which had been placed by the appellees on appellant's right-of-way, with the knowledge and consent of appellant, were destroyed by fire set out by a locomotive that was being operated by employees of the appellant. The court, at the request of the appellees, in instruction No. 1, in substance told the jury that, if the appellees placed their staves upon appellant's right-of-way with the consent of the appellant and under an agreement with appellant that it was to transport the same to Reeder, and if the staves were destroyed by fire set out by a locomotive of appellant, the appellant would be liable. The court refused to grant appellant's prayer for instruction No. 7, which, in effect, told the jury that the appellees would not be entitled to recover unless the appellant was guilty of negligence in regard to the equipment or operation of the locomotive. The trial resulted in a judgment in favor of the appellees, from which is this appeal.
The first question for our consideration is whether or not the appellant is liable under § 8569 of C. & M. Digest, which is as follows:
This statute was upheld as to railroad corporations in the case of St. Louis & S. F. Ry. Co. v. Shore, 89 Ark 418, 117 S.W. 515. See also Evins v. St. Louis & S. F. Rd. Co., 104 Ark. 79, 147 S.W. 452; Kansas City So. Ry. Co. v. Harris, 105 Ark. 374, 151 S.W. 992; Cairo, T. & S. Rd. Co. v. Brooks, 112 Ark. 298; St. Louis, I. M. & S. Ry. Co. v. Ross, 120 Ark. 595; Union S. & F. Co. v. St. Louis, I. M. & S. Ry. Co., 121 Ark. 585, 181 S.W. 898, and exhaustive note to St. Louis & S. F. Rd. Co. v. Shore, supra, 16 A. & E. Ann. Cases, 941. Learned counsel for appellant contend that the statute was held valid as to railroad corporations because they are chartered as common carriers for hire, and have certain privileges by virtue of their charter, such as eminent domain, etc.; that the statute is unconstitutional and void when applied to corporations, companies and persons which own and operate railroads, not as common carriers, but in connection with the industrial business or enterprises for which they are incorporated, or which they conduct as unincorporated companies, or as individuals. Counsel for appellant are correct in this...
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