Opinion
No. 7030.
January 3, 1952.
Thomas J. Cole, of St. Louis, E. A. Barbour, Jr., of Springfield, for appellant.
Edward V. Sweeney, of Monett, for respondent.
The respondent was plaintiff in the trial court, and the appellant was defendant there. They will be referred to in this court as they were in that court.
On August 2, 1950, plaintiff filed his petition, asking judgment from defendant in the sum of $2,000 and an attorney fee of $500. On January 26, 1951, ten of the jurors returned a verdict for plaintiff in the sum of $930, and judgment in double that amount was entered by the trial court. After unsuccessful motions for judgment and for new trial, defendant gave notice of appeal to this court. Both plaintiff and defendant have filed briefs; but the case was submitted here on October 2, 1951, on such briefs, without oral argument. The case is thus before us for decision.
After setting forth in his petition defendant's official connection with the Missouri Pacific Railroad Company, plaintiff alleged that, on February 19, 1950, he was the owner of certain cattle and that said cattle strayed upon the tracks of the railroad of defendant, where its tracks passed through plaintiff's land in Lawrence County, Missouri, at a point "where defendant was by law required to erect and maintain good and lawful gates and fences along the side of its road and right of way sufficient to prevent horses, cattle, mules and other animals from getting into the railroad right of way." Plaintiff further alleged that his cattle strayed and entered upon defendant's right of way and tracks by reason of defendant's negligent and careless failure to erect and maintain the gates and fences required by law, and were killed. Said cattle were valued by plaintiff at $1,000.
On August 2, 1951, defendant filed answer admitting its duty, as alleged in the first count of the petition. It also admitted that plaintiff was the owner of the cattle mentioned and that said cattle strayed into defendant's right of way, where defendant was required by law of fence, and were killed.
The chief questions are, the value of the cattle, whether or not the railroad violated the law, and whether or not, under the circumstances, defendant was required to pay double the value of said cattle with plaintiff's attorney's fees.
Section 5218, RSMo 1939, RSMo 1949, § 389.650, V.A.M.S., among other things, provides that where a railroad company, which operates such railroads, passes through or adjoins enclosed or cultivated fields or enclosed lands, it is its duty to construct and maintain "lawful fences * * * and gates" sufficient to prevent horses, cattle, etc., from getting onto the railroad tracks, and, until so constructed and maintained, the railroad corporation "shall be liable in double the amount of all damages which shall be done by its agents, engines or cars", with attorney's fees, if suit is necessary.
The main question in the case appears to be whether or not defendant was required to pay double damages, under the circumstances. Defendant cites United States v. Harris, 177 U.S. 305, 20 S.Ct. 609, 610, 44 L.Ed. 780, on the proposition that the penalty of double damages cannot be imposed upon the trustee of defendant railroad.
We have carefully studied the case cited. It does not hold, and defendant does not claim, that the Missouri Legislature had no power to enact a law imposing double indemnity on a trustee. As we understand Justice Shiras in the Harris case, he simply held that the word "company" used by Congress in passing "An Act to Prevent Cruelty to Animals while in Transit", did not include receivers or trustees of a railroad.
The United States Supreme Court was considering a penalty statute, and not a compensation law. Presiding Judge Sturgis, of this Court, in Chilton v. Hines, etc., 205 Mo.App. 130, 224 S.W. 18, held that the Missouri statute, requiring the erection and maintenance of fences along railroads were such railroad crosses or adjoins fields, was a compensatory and not a penalty statute, and that the Director General stood in the place of the railroad and was liable for all compensatory burdens placed upon the railroad in his possession. Judge Sturgis therein held that the presidential order that such Director General should not be subject to statutory penalties, did not apply to compensatory states. He held that the fencing statute was a compensatory and not a penalty statute.
In Farrell v. Union Trust Co., 77 Mo. 475, Judge Henry discussed briefly his former opinion in Turner v. Hannibal St. Joseph Ry. Co., 74 Mo. 602. In the Turner case, he is said to have held that Section 3145, RSMo 1909 (which is almost identical with our present RSMo 1949, § 389.650, V.A.M.S.), did not impose double indemnity upon the receiver. He had only held therein that the trial court had erred in striking out such a defense. It will be noticed that the Turner case was against the railroad itself, and not against its former receiver.
But it must also be noticed that the reversal of the Turner case was due almost entirely to the contributory negligence of the plaintiff therein. The liability of the receiver for double damages was hardly noticed at all. In discussing the alleged contributory negligence, claimed to exist in the plaintiff in the Turner case, Judge Henry had said: "As, for the error here noticed, the judgment will be reversed." In the Farrell case, 77 Mo. 474, Judge Henry plainly held that the receiver or trustee was liable in double damages for injuries caused by the railroad corporation.
The Harris case, 177 U.S. 305, 20 S.Ct. 609, 44 L.Ed. 780, does not exempt the trustee from liability for compensatory damages charged to the railroad corporation. That case only held that a receiver or trustee of a failed railroad corporation, under the language used, was not liable for its damages, when such damages were imposed as a penalty.
The evidence in this case disclosed that, even though the railroad had erected and maintained fences along its railroad for many years, it had allowed one of the gates to become so out of repair that cattle could open the gate in such fence by rubbing against it. The gate was not long enough to fill all of the space between the posts of such fence, which were placed at both ends of such gate. How long the gate had been in that condition, does not appear from the evidence.
The question of negligence of the railroad, in permitting the gate to be in that condition, is not important, under the statute. RSMo 1949, § 389.650, V.A.M.S., requires the railroad corporation to "erect and maintain"lawful fences and gates therein, and it is not necessary for us to consider the propriety of the instructions on care of the railroad, even though the statute provides that the railroad shall not be liable "after such fences, gates, farm crossings and cattle guards shall be duly made and maintained". (Emphasis ours.)
We are satisfied that the particular gate was not "duly made and maintained," when the post in such fence was too far away from the gate itself to render the fence safe, when cattle rubbed against it or the gate therein. The judgment should be affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.