Eastman, Gardner & Co. v. Sullivan

95 So. 673, 131 Miss. 763

• Court: Mississippi Supreme Court
• Decided: March 15, 1923
• Docket: No. 23114
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The appellee in the circuit court sued appellant for damages for failing to erect and maintain proper stock gaps and cattle guards upon inclosed lands of plaintiff (appellee). The declaration is in two counts, the first count is for two hundred fifty dollars statutory penalty, and the second count is for tAventy-five dollars, the actual damages sustained by plaintiff.

The agreed statement of facts shows that the railroad of the appellant is a logging road and not a railroad operated as a common carrier in any sense of the term; further that twenty-five dollars is the amount of actual damages sustained. There was a recovery by plaintiff, both for the penalty and actual damages.

There can be no recovery in this case of this penalty. This section of the Code (section 4058, Code of 1906; section 6686, Hemingway’s Code), providing for this penalty, applies to railroads carrying persons or property for hire, in other words, to common carriers, and is not applicable to logging railroads for this character. New Deemer Mfg. Co. v. Kilpatrick, 129 Miss. 268, 92 So. 71. It is further contended by the appellant that, since the statutory penalty of two hundred fifty dollars could not be recovered, the only amount really in controversy was the twenty-five dollars actual damages, and that the circuit court, therefore, did not have original jurisdiction of the case.

The plaintiff, however, in good faith sued for both the penalty and actual damages. The amount sued for was within the jurisdiction of the circuit court. It was therefore for that court to pass upon all questions of liability presented in that declaration.

Reversed as to the statutory penalty, and affirmed as to the twenty-five dollars actual damages.

Reversed and affirmed.