[232 U.S. 165, 166] Messrs. William G. Porter, Burton Hanson, Ed. L. Grantham, and Harrison C. Preston for plaintiff in error.
[232 U.S. 165, 167] No appearance for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This was a suit against the plaintiff in error for loss of property destroyed by fire communicated from its locomotive engine. A statute of South Dakota, after making the railroad company absolutely responsible in such cases, goes on to make it liable for double the amount of damage actually sustained unless it pays the full amount within sixty days from notice. If, within sixty days, it shall 'ofter in writing to pay a fixed sum, being the full amount of the damages sustained, and the owner shall refuse to accept the same, then in any action thereafter brought for such damages, when such owner recovers a less sum as damages than the amount so offered, then such owner shall recover only his damages, and the railway company shall recover its costs.' S. D. Laws 1907, chap. 215. The plaintiff got a verdict for $780. The railroad had offered $500; less, that is, than the amount of the verdict, while the plaintiff, on the other hand, demanded more. In his demand, his declaration, and his testimony, he set the damage at $838.20. A judgment for double damages was affirmed by the supreme court of the state. 26 S. D. 378, 128 N. W. 472.
The defendant in error presented no argument, probably because he realized that under the recent decisions [232 U.S. 165, 168] of this court the judgment could not be sustained. No doubt the states have a large latitude in the policy that they will pursue and enforce, but the rudiments of fair play required by the 14th Amendment are wanting when a defendant is required to guess rightly what a jury will find, or pay double if that body sees fit to add 1 cent to the amount that was tendered, although the tender was obviously futile because of an excessive demand. The case is covered by St. Louis, I. M. & S. R. Co. v. Wynne, 224 U.S. 354 , 56 L. ed. 799, 42 L.R.A.(N.S.) 102, 32 Sup. Ct. Rep. 493. It is not like those in which a moderate penalty is imposed for failure to satisfy a demand found to be just. Yazoo & M. Valley R. Co. v. Jackson Vinegar Co. 226 U.S. 217 , 57 L. ed. 193, 33 Sup. Ct. Rep. 40.