Atkinson v. Chicago & Northwestern Railway Co.

93 Wis. 362 | Wis. | 1896

Pinkey, J.

1. It is provided by ch. 202, Laws of 1893, that “ no action against any railroad or railway corporation for damages to property occasioned by fire set from a locomotive, or for stock killed-or injured by such corporation, •shall be maintained, unless, within one year after the happening of the event causing such damage, notice in writing signed by the party owning such property or stock, his agent •or attorney, shall be given to such corporation against which damage is claimed, stating the time and place where such damage occurred, and that satisfaction therefor is claimed ■of such corporation. Such notice may be given in the manner required for the service of summons in courts of record.” 'The statute for service of summons in courts of record on railroad corporations provides that it may be by delivering a copy thereof, in the case of a railroad whose general office is within this state, to the president, secretary, superintendent, general manager, or general solicitor thereof, if either shall reside and be within the county in which such action is brought; and, in case neither of the officers named reside and are in such county, then to any station, freight, or ticket agent thereof who shall reside and be within such county; if against a railroad corporation whose general office is, or all whose aforesaid officers shall reside or be, without the-state, to any station, freight, ticket, or other agent thereof within the state. R. S. sec. 2637.

The substance of the provision is that the prescribed notice “ shall be given to -such corporation.” It may, no doubt, be properly delivered to a general officer of such corporation or any agent thereof having a general authority to act for the corporation in respect to the subject matter to which it relates. Compliance with the common-law rule as to the party to whom notice may be given is clearly sufficient, Eor all the purposes of the business to which the general agency applies, the agent having a general authority to act for the ■ corporation in respect to such part, branch, or department of its business is, fro hao vice, the corporation itself. Accordingly, notice to such an agent, in relation to-transactions within the scope of his agency, is notice to the-principal, although the principal be a corporation. 1 Beach, Priv. Corp. § 185. The rule applies equally to a corporation as to a natural person. Angelí & A. Corp. § 305.

The statute is mandatory that the prescribed notice shall be given to the corporation, but the provision that it may be given in the manner required for the service of summons-in courts of record is permissive, in order to enable the-party the more readily to give the notice to any railroad or railway corporation whose general officers or general agents may reside at a considerable distance or without the state. In cases arising under sec. 1339, R. S., concerning actions-for injuries received on highways, the requirement is, not-that the notice shall be given to the county, town, city, or village, but it is required that it shall be given “ to the clerk of the county, a supervisor of the town, one of the trustees of the village, or mayor or city clerk of the city, against ■which damages are claimed.” Legal notice, by force of the statute, cannot be given in such cases to any other officer or person; but here it is only required that such notice may he given to the corporation in the manner required for the service of summons in courts of record. The statute is that the notice may, not that it shall, be so given.

The instructions of the circuit court on the subject of giving notice were substantially correct, although the evidence on the question as to when the fire ceased burning on the plaintiff’s lands, so as to fix the time within which notice was required to be given, as well as the time when Piersol was on the premises, is not entirely clear or satisfactory. Still, these were matters for the determination of the jury. There is no finding to show when the fires ceased burning on the plaintiff’s lands, so as to show when the event causing such damage could be said to have happened, in order to determine the sufficiency of the notice in point of time. If, however, the notices were received at the general claim office, by the general claim agent, within a year after the fires ceased burning on the plaintiff’s lands, as the jury have found, substantially, that would be sufficient.

2. The evidence as to what the plaintiff had been previously offered for his lands so injured, or for any part of them, per acre, was not competent on the question of damages. Evidence of actual ionafide sales of like lands similarly situated might be properly received, especially on cross;examination, but not mere offers, even for the identical lands. Watson v. M. & M. R. Co. 57 Wis. 332, 350, 351; Minn. B. L. R. & T. Co. v. Gluek, 45 Minn. 463. The evidence thus received was presumptively prejudicial. The question of damages was much controverted, and we cannot say, from the entire cg,se, that it is reasonably clear that the verdict was not affected by this evidence. For this reason there .must be a new trial.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.