Toledo, St. L. & K. C. R. R. v. Anderson

Opinion of the Court, the

Hon. George W. Pleasants, Judge.

July 13, 1890, a fire consumed some hay, rails and hedge of appellee, for which he brought this action, claiming that it was communicated from a locomotive engine of appellant by dead grass and dry weeds negligently left on its right of way. In addition to the value of the property so destroyed, he claimed an attorney’s fee, as a penalty; and it was agreed that if so entitled, fifteen dollars ivas a reasonable amount. The jury were instructed that if they found the fact to be as claimed by plaintiff they should allow it; which they did, and it was included in the verdict and judgment.

It is not denied that the evidence clearly tended to prove the case as alleged, but the question made is whether any such penalty was prescribed by the statute.

Section l-£ of the “ Act in relation to fencing and operating railroads,” approved March 31, 1874, declares “it shall be the duty of all railroad corporations to keep their right of way clear from all dead grass, dry weeds, or other dangerous combustible material, and for neglect shall be liable to the penalties named in section 1.”

Section 1 required them, in the cases and with exceptions specified, to erect fences and construct cattle guards to prevent live stock from getting on the road; and tl:e only penalty “ named ” therein for neglect to do so was a liability for “ double the amount of damages ” thereby done by their agents, engines or cars to such stock. By an act of .May 23, 1877, it was amended by reducing the liability to actual damages so done; and, finally, by an act of May 29, 1879, it was further amended by adding to the liability clause the provision “ and reasonable attorney’s fees in any court wherein suit is brought for such damages, or to which the same may be appealed.”

Section 1 has never been (amended) changed, or expressly repealed, but been continued in the authorized revisions and publications of the statutes precisely as originally enacted; and the vindicatory part of section 1 has remained unchanged ever since the passage of the amendment last above referred to. So when the act here complained of was committed, the statute relating to it, as published by authority of the legislature, was, and for more than ten years had been, just as it appeared when this suit was brought, and still appears. It is, therefore, clear that if the vindicatory part of section !■§• has any force, it prescribes as a penalty for neglect to comply with the mandatory part, causing damage, the payment of reasonable attorney’s fees in any suit properly brought to recover such damage; for it prescribes no other, nor even, according to the contention of appellant,- any liability for actual damages.

The position taken is that when it was enacted the only penalty “ named in section 1 ” being double the amount of the damages done, the legislature must have intended nothing else for a violation of section 1\; that its operation as originally intended can not he diverted or extended by any subsequent amendment of a preceding section which does not express or in some way manifest an intention to that effect, and that by the amendment of 1879 no such intention was manifested.

We agree that it is a question of legislative intention, but hold that this might he shown otherwise than by the terms of the amendment, and are of opinion that it was so shown in this instance.

The object of section 1 was the protection of live stock, that being the kind of property peculiarly exposed, and the penalty prescribed for neglect to comply with its requirement was double the amount of damage thereby done to such stock. That of section lj- was not so limited, but had reference to combustible property of all kinds; and yet the penalty for neglect in that case was the same. By the strict letter of that section, then, no penalty could be recovered for inanimate property destroyed or damaged through neglect to obey it. But we apprehend that no court would so construe it. The intention of the legislature clearly was to place violations of section 1 and of section upon a like footing as to penalty, by making it in each case double the amount of damages thereby done to the property exposed; live stock in. one, and inanimate property, real or personal, in the other. This is plain enough from the language used in the latter section, though it might have been better expressed. The penalty intended could be there indicated as well by reference to the preceding section as by its repetition or statement in fnlL Any subsequent legislature could abolish or change the penalty thus prescribed for both or either of these wrongs; and that a change expressed in the first, with a retention of the reference in the second, would affect a like change in the latter, seems to ns a proposition too simple for analysis and too obvious for argument. That is just what the legislature of 1879 did. Whether the prescription of the penalty in the original act had or had not ceased to be operative under the intervening amendment of 1877, that would not interfere to prevent this effect of its action. It found section with its reference to the penalties named in section 1, still on the statute book, prescribed a penalty in section 1 which would make such a reference operative, and then left it as it found it, section 1| of the act. This was a recognition or adoption, amounting in legal effect to a re-enactment of it.

We therefore hold that ever since 1879 the statute has imposed for the wrong here complained of as a penalty, in addition to the actual damage, a reasonable attorney’s fee, and the instruction on that point was right. The evidence on the part of plaintiff was positive, full and clear, and none whatever was offered on that of defendant. The liability for a reasonable attorney’s fee was, therefore, the only question in the case. Judgment affirmed.