This was an action in the circuit court of Aurora county to recover damages to plaintiff’s property by fire *624from defendant’s locomotive engines. The action was brought under chapter 215, Laws of 1907, which act in effect attempted to-create an absolute liability when the fire causing the injury was. communicated by locomotive engines, and which act also provided that, if the corporation should fail or neglect to pay such damages within 60 days after notice in writing of such loss or injury, the injured party should be entitled to recover double the amount of damages sustained, unless the company shall have offered in writing to pay a fixed sum, being the full amount of the damage sustained, and the owner shall have refused to accept the same. Defendant, under this act, offered to pay plaintiff $500 damages. At the trial the jury returned a verdict for $780 damages, upon which the court entered a judgment for double the-amount of the verdict. An appeal was taken to this court, upon which the double damage feature of the act was held to be constitutional as a valid exercise of the police power of the state. Frorii this final judgment, an appeal was taken to the Supreme Court of the United States. That -court held the double damage-act to be unconstitutional, reversed the decision of this court,, and remanded the cause for further proceedings saying:
“No d-oubt the states have large latitude in the policy that -they will pursue and enforce, but the rudiments- of fair play required by the fourteenth 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 one cent to the amount that was tendered, although the tender was obviously futile because of an excessive demand.” Chicago, M. & St. P. R. Co. v. Polt, 232 U. S. 168, 34 Sup. Ct. 301, 58 L. Ed. 554.
The mandate of that court was filed in this court on July 24, 1914, and the cause is now 'before us for further disposition.. It is plaintiff’s contention that this court should direct judgment upon the verdict for single damages, while the defendant’s counsel contend that a new- trial should be awarded. The complaint in the action was framed strictly under -the provisions -of chapter 215, Laws of 1907, and does not allege that the fire causing the-injury was the result of negligence, nor was any proof of negligence offered at the trial.
In the case of Kennedy v. C., M. & St. P. Ry. Co., 28 S. D. 94, 132 N. W. 802, that part of chapter 215 which purports. *625to relieve the plaintiff from alleging and proving negligence was held unconstitutional. With that portion of the statute eliminated, plaintiff could not recover except upon allegation and proof of negligence.
If the judgment were to be entered upon the present verdict, plaintiff would be permitted to recover without either allegation or proof of negligence on the part of the defendant. -We are clearly of the opinion the cause should be remanded for a new trial, and to the end that plaintiff may make application to the trial court for leave to amend the complaint by proper allega tions of negligence should he be so advised.
Upon the pending motion, appellant is entitled to recover costs adjudged in its favor by the United States Supreme Court, as well as its costs upon the appeal to this court. It will be so ordered, and the cause remanded' for further proceedings in accordance with the views herein expressed.