Wyoming & N.W. Ry. Co. v. Snavely

• Decision Date: 31 July 1915
• Docket Number: 828
• Citation: 150 P. 760,23 Wyo. 324
• Parties: WYOMING & N.W. RY. CO. v. SNAVELY
• Court: Wyoming Supreme Court

150 P. 760

23 Wyo. 324

WYOMING & N.W. RY. CO. v. SNAVELY

No. 828

Supreme Court of Wyoming

July 31, 1915

ERROR to the District Court, Fremont County; HON. CHARLES E WINTER, Judge.

Action by Frank Snavely to recover damages for the killing of live stock on the ground that the defendant had failed to maintain a proper fence and to give notice to the plaintiff of the killing of the live stock, as required by statute. The plaintiff below recovered judgment against the railroad company for double the value of the animals and the company brings error.

Reversed.

John D Clark, for plaintiff in error.

The instruction given, that if defendant had failed to comply with Section 4206, Comp. Stats. 1910, its liability, if liable at all, would be for double the value of the stock killed, was erroneous. The section was Section 2 of an act approved December 9th, 1875, Section 1 of which was declared unconstitutional in Schenck v. U. P. R. R. Co., 5 Wyo. 430, which fixed a liability for the killing of live stock by railroads, irrespective of the question of negligence. The section thus condemned was universal in its terms, and other sections of the act being subsidiary to the main provision of universal liability were rendered inoperative, as the decision destroyed the whole foundation of the act by destroying the universal liability, which was the very basis of the statute. The statute is further objectionable, in that it deprives the defendant of property without due process of law. The penalty of double damages is unimportant, but the power of the Legislature to impose a particular duty upon railroads in the matter of giving notice in a certain way is important. The instruction complained of is objectionable in that it read into the statute an exception, which it does not contain, namely, the liability incurred for failure to maintain fences, which was one of the facts pleaded by plaintiff below. In determining the intent of the Legislature, the entire statute must be considered. (United States v. Reese, 92 U.S. 221; Baldwin v Franks, 120 U.S. 685; United States v. Harris, 106 U.S. 629.) Unless such an exception as the court below made is read into the statute, we believe that it will be agreed that, in view of the decision in the Schenck case, the statute is unconstitutional. The imposition of a duty upon railroad companies alone to give notice to the owners of stock killed by their trains violates the federal constitution guaranteeing to each person the equal protection of the laws. Special legislation is not permissible. The statute singles out railroads from other tort feasors and imposes a special duty upon them. (Gulf C. & S. F. R. Co. v. Ellis, 165 U.S. 150; State v. Loomis, 115 Mo. 307.) A mere statute to compel the payment of in debtedness does not come within the scope of police regulations. Statutes authorizing the recovery of double damages are in some instances sustained. (Kansas City Railroad v. ---, 233 U.S. 375; Jensen v. Railroad, 25 So. 506, 127 N.W. 650, 24 Ann. Cas. 700; Chicago M. & St. P. R. R. Co. v. Polt, 26 S.D. 378, 128 N.W. 472; Chicago M. & St. P. R. R. Co. v. Kennedy, 28 S.D. 94, 132 N.W. 802.) But these decisions were reversed and the statute held to be unconstitutional. In 322 U.S. 165 and 232 U.S. 626 the original liability of the defendant is based upon the act of 1907 (Secs. 2593, 2594 C. S.) requiring railroads to fence their rights of way and renders them liable for the loss of stock killed when the fence is defective or does not exist at all. In the absence of statute there was no liability at common law in the absence of real negligence. (Martin v. C. B. & Q. Railway Co., 15 Wyo. 493.) The liability being statutory, the amount of recovery must be limited to that fixed by statute, which, under Section 2594, is the full amount of damage sustained by the owner. (Harrington v. Gliden, 179 Mass. 486, 94 A. S. R. 613; Lynch v. M. Natl. Bank, 22 W.Va. 554; Chocktaw Railroad v. Bosburg, 71 Ark. 232, 72 S.W. 574; N. Y. R. Co. v. Zumbaugh, 12 Ind.App. 372, 39 N.E. 1058.) The court erred in refusing defendant's requested instruction as to actual notice. The theory of notice, as required by the act of 1875, was to enable the owner of live stock to furnish evidence of value. Since the amendment of the statute left Section 4207 useless and meaningless, the requirement of notice to the owner would seem to be a needless ceremony. Section 4206 is so closely connected with Section 1 of the act of 1875 that the unconstitutionality of the latter section renders Section 4206 likewise void. The section also deprives defendant of its property without due process of law and in depriving defendant of the equal protection of the law. Even assuming that Section 4206 is valid, the penalty there imposed cannot be assessed in the present case because the extent of the liability of defendant is fixed by Section 2594. Defendant cannot be assessed with a penalty for failure to give notice to the owner, because the latter acquired full knowledge within the time allowed by statute.

M. C. Burk, for defendant in error.

Two propositions are presented: (1) Section 4206, Comp. Stats. 1910, is valid; the act of 1875 was amended in 1888 so that the second section (4206, Comp. Stats. 1910) read the same as at present; the third section being changed from a settlement of two-thirds value, leaving it the same as now, except the reference to the first section, which was declared unconstitutional in Schenck v. Railroad Co., supra. The sections of the original act of 1875 were not interdependent, but referred to a separate and distinct phase of the same subject and each was complete in itself. The federal cases cited by plaintiff in error are not in point; penalties provided for failure to perform a specified act are commonly upheld. (Little Rock & R. R. Co. v. Payne, 33 Ark. 816; Memphis & L. R. R. Co. v. Horsefall, 36 Ark. 651; Seaboard Air Line v. Seagar, 207 U.S. 73, and cases cited.) Liability being established under Section 2594, Comp. Stats. 1910, the double liability feature described by Section 4206 as a penalty for failure to give notice is reasonably within the police power of the state. A statute applying to all persons of a class violates no guaranty of equal protection of the law. (G. C. & St. F. R. R. Co. v. Ellis, 165 U.S. 150.) The contention that the classification is one of tort feasors, if true, will not be fatal under the decision of the United States Supreme Court, 52 S.E. 797, and afterwards reported in Seaboard Air Line v. Seager, supra, where it was affirmed on appeal. The classification was there based upon facts after the act causing loss had occurred. (See also Johnson v. C. M. & St. P. R. R. Co., 13 N.W. 673; Schimmel v. C. M. & St. P. R. R. Co., 25 N.W. 387.) (2) Section 4206, Comp. Stats. 1910, is applicable to this case. It was not affected by the decision in Schenck v. Railroad Co., supra. The company being liable in the first instance, the double liability is in the nature of a penalty for failure to comply with the statute. Section 2596 does not limit the amount of recovery, but covers all damages occasioned by failure to fence; that liability being established, why should not Section 2406 apply, when its provisions were not complied with? In Memphis & L. R. R. Co. v. Coulley, 33 Ark. 46, double damages were allowed, notwithstanding actual notice, where no notice was given under the statute. The rule was approved in St. Louis & Iron Mountain Railroad v. Wright, 57 Ark. 327, and in St. Louis & Santa Fe R. R. Co. v. Kimmons, 61 Ark. 200, 32 S.W. 405. The fact of actual knowledge of the injury is immaterial, as well from logical and moral, as legal considerations. Cases where knowledge is gained are the only ones where it could be applied, since violation would prevent recovery except in those cases.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

This case involves the right of a party to recover double damages for live stock killed by a train on a railroad on account of the failure of the railroad company to give notice of the killing of the animals. Two head of Snavely's cattle were killed by a train on the railroad at a place where it was required to fence and had fenced its track, but had permitted the fence to become out of repair so that the cattle went upon the track and were struck by a train. No notice of such killing was given, filed or posted by the company. The plaintiff below, Snavely, recovered judgment against the railroad company in the district court for double the value of the animals, and the company brings error. The errors assigned are the giving of an instruction to the jury and the refusal to give an instruction requested by the company. The instruction which was given is as follows:

"The court instructs the jury that it is the law of the State of Wyoming that it is the duty of any railway corporation operating any railroad within the State of Wyoming when any live stock is killed by such corporation by running its engine or cars over or against any such live stock, within ten days thereafter to notify the owner or owners of such live stock so killed or injured of that fact, and if the owner is not known such corporation shall file in the office of the county clerk of the county in which such live stock is so killed or injured a full description of such stock including the number, class and brands of such live stock, naming the locality where such stock was so killed or injured, and immediately to post a notice in a conspicuous place on the station house or section house which is nearest to the place of the killing or injury, specifying the date and place of the killing or injury, the kind and number of animals, the color and brands or marks of such...