Central Branch Railroad v. Ingram

Damages eor Killing Stock; Demand. Under the special statute of 1874, imposing liability on railroad companies for stock killed, a demand made upon the general superintendent of a railway company, is a sufficient demand upon the company.

Error from, Atohison District Court. On 15th November 1876, Ingram commenced an action against the Railroad Company, before a justice of the peace, to recover damages for the killing of a certain mare, on the line of the railroad, and also for an attorney-fee for the prosecution of the action. Ingram in his bill of particulars alleged that the Railroad Company neglected to inclose its road with a good and lawful fence, and that by reason thereof the animal was killed. He also alleged that on the 5th of October 1876, he “caused a written notice to be served upon W. F. Downs, the duly-appointed and authorized Superintendent and General Manager of said C. B. U. P. Rid. Co., demanding the full value of such animal so killed as aforesaid.” There •yyas no other allegation touching a demand. When the action came on for trial before the justice, the defendant objected to the introduction of any evidence on the part of the plaintiff, on the ground that the bill of particulars did not state facts sufficient to constitute a cause of action, either at common law, or under the statutes of this state. The objection was overruled, the defendant excepting, and evidence was admitted. In order to prove a demand under the statute, the plaintiff offered in evidence a writing addressed “To The Central Branch Union Pacific Railroad Company,” giving notice of the killing of said mare, September 11th 1876, by a moving train, claiming the value thereof to be $125, and demanding payment of said sum, “together with.a reasonable attorney-fee,” within thirty days. It was admitted by the parties that “said notice was delivered to W. F. Downs, General Superintendent of said Railroad Company, at Atchison, October 2d 1876, and to no other person.” Defendant objected to the introduction of said writing in evidence, as incompetent, because said notice was not served upon any station-agent or ticket-agent of the company, and because the demand made therein was for an uncertain sum, being for $125, “together with a reasonable attorney-fee,” the amount of which is not stated in the demand. The justice overruled the objection, and said writing was introduced in evidence, to which the defendant excepted. The Railroad Company introduced one witness only, and his testimony related solely to the value of the animal. The justice made general findings in'favor of the plaintiff, and rendered judgment in favor of the plaintiff and against the defendant, for $110 debt, ($10 thereof being for attorney-fee,) and $16.55 costs of suit. The Railroad Company removed the case to the district court, where the petition in error was heard at the June Term 1877, A. E. M., judge pro tern., presiding. The judgment of the justice was affirmed, and the Railroad Company now brings the case here. 1. The bill of particulars not showing any negligence on the part of the railroad company, except the failure to fence its road, it was not sufficient to authorize a judgment in favor of the plaintiff below, independently of the statute of 1874: 21 Ind. 150, 152, 215; 23 Ind. 10; 17 Kas. 566. But we think the bill of particulars insufficient under the statute. No action can be maintained under the statute until after the railway company “shall fail, for thirty days after demand made therefor,” and “the demand may be made of any ticket-agent or station-agent of such railway company.” (Laws of 1874, p. 144, §§ 2, 3.) In an action under a statute, the party seeking its benefit must, by proper averments, bring himself within its terms. Has the plaintiff done so here? He does not allege a demand upon any ticket-agent, or station-agent, nor even upon the company. Probably an averment of demand upon the “ company ” might be aided by a presumption that the demand was made upon the proper officer, and so held good. But here the only allegation of demand is that notice was served upon “the duly-appointed and authorized superintendent and general manager,” etc. "VVe contend that the demand under this statute can be made only upon some ticket-agent or station-agent of the company; and that a demand upon a superintendent or general manager is no better than none at all: Potter’s Dwarris on Statutes, 72; 11 Coke, 59, 64; 12 Abb. Pr. (N. Y.) 35; 3 Brev. (S. C.) 396; 36 Conn. 373; 7 Iowa, 262, 276, 284. Where a new right is given by statute, and a specific remedy provided, the right can be vindicated in no other way than that prescribed by the statute: Sedgwick on Stat. & Const. Law, 343; 5 Johns. 175; 1 Blackf. 405; 7 Hill, 575; 6 C. L. J. 77. The word “ may ” is frequently construed as imperative, especially in acts of parliaments and legislatures: 3 Atk. Ch. 212, 166. This is especially so when the rights of third parties or the public are concerned: 8 Kas. 623, 268. 1. This case was tried before the justice, and no motion was made for a new trial by plaintiff in error. The case was then taken to the district court, and the judgment of the justice was affirmed, and no motion was made for a new trial. A motion for a new trial was necessary, and should have been made by plaintiff in error in the-justice court, and in the district court: 13 Kas. 269; 2 Kas. 337. '2. The demand was made upon the superintendent and general manager of the railroad company, the general office of the company being the nearest office to the place where the accident occurred. We think the demand sufficient. The word “may,” as used in the statute, is permissive, not mandatory. It gives individuals the right to do a certain act for their benefit, and the law leaves it to their discretion whether they will pursue the remedy or not: 5 Cowen, 188; 7 Ind. 132; 18 Ind. 27; 53 Me. 438; 5 Johns. Ch. 100. It is only in cases where public interest and rights are concerned, and-where the public and third persons have a claim de jure, that the power should be exercised of construing the word “ may” for “shall.” 9 Wis. 282; 77 111. 273; 39 N. H. 435; 27 N. J. .407. 3. Counsel- for plaintiff in error claims that the demand made was for an uncertain sum — being for a “reasonable attorney-fee.” The demand could not be made for a specific amount, for attorney-fees, for the reason that in such cases an attorney-fee is not due until suit is instituted, and the amount is to be governed by the value of the services rendered in the prosecution of the case.