78 P. 408 | Kan. | 1904
The opinion of the court was delivered by
On December 2, 1898, a mare owned by plaintiff in error was killed by one of the trains of defendant in error on a track which was not fenced. In April, 1899, Becker commenced an action against the company in a justice’s court to recover the value of the animal and attorney’s fees. He recovered a judgment for $200. The railway company appealed to the district court, where judgment was again rendered against it for the same amount. On proceedings in error brought by the railway company in this court, the judgment of the district court was, on January 11,1902, reversed and a new trial ordered on the ground that there was no proof of a demand on the company for payment of the value of the animal before the action was brought. (64 Kan. 884, 62 Pac. 1129.)
On March 17, 1902, after the case had been remanded, plaintiff below dismissed his action without prejudice, and thereafter, on March 28, 1902, made a written demand on the company for the value of the
It will be seen from the above statement that no demand on the company for payment of the value of the animal, or for attorney’s fees, was made until after a lapse of more than three years from the date when the mare was killed. Plaintiff below seeks to toll the statute of limitations from the fact that an action was brought by him to recover the value of the mare and attorney’s fees within six months from the time of his loss ; that by a dismissal of that action in March, 1902, without prejudice (which was a failure otherwise than on the merits), and the bringing of a new one within one year, after a demand had been made on the company, the limitation did not run, by virtue of section 4451 of the General Statutes of 1901. We are of a contrary opinion. It has been held uniformly by this court, under the stock-killing act of 1874 (Laws 1874, ch. 94; Gen. Stat. 1901, §§5859-5863), that one who seeks its benefits must bring himself squarely within its terms. (K. P. Rly. Co. v. Ball, 19 Kan. 535.)
It is necessary for a plaintiff to plead a demand. (Mo. Pac. Rly. Co. v. Morrow, 36 Kan. 495, 13 Pac. 789; Mo. Pac. Rly. Co. v. Piper, 26 id. 58.) The owner of stock killed under the circumstances of the present-case has no right of action against the railway company until after thirty days from the date of the demand, and no cause of action without an averment of such demand. It is just as essential for the maintenance of this statutory action that a demand be made as that the animal be killed.
“The law made it the duty of the mortgagee to release the mortgage after payment. It was as much his duty to do so before demand as afterward. True, no penalty attached until after demand. There was a wrong on the part of the defendant, and the plaintiff had a right of action independent of the notice to compel such cancelation.” (Page 375.)
Under the law on which this action is based a right to recover is given to the owner of stock killed on an unfenced railway, regardless of the negligence of the company. Independent of the statute there could be no liability in this case, for no act of negligence is charged against the railway company in the bill of particulars. In St. L. & S. F. Ry. Co. v. Kinman, 49 Kan. 627, 631, 31 Pac. 126, 127, commenting on the nature of an action under the railroad stock law we are now considering, the court said:
“And without proof of a proper demand upon a proper agent of the company, of course the plaintiff cannot maintain his action. Such an action could not be maintained at common law at all; and it can bemáintained under the statute only by a substantial compliance with the statute.”
In the case at bar, if the owner had made seasonable demand of the railway company for pay for the animal killed, and then brought his action alleging the demand, but had not waited until the full thirty days (the time állowed the company in which to pay) had elapsed, the action might be said to have been prematurely brought, and the case of Seaton v. Hixon, supra, would be an authority favorable to the right of Becker to dismiss such action without prejudice and bring another, after the expiration of thirty days from the demand, which would not be affected by the
For another reason the judgment of the trial court must be affirmed. No demand was made on the railway company to pay the value of the mare until the expiration of more than three years after the animal was killed. In West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, 253, 63 L. R. A. 137, 97 Am. St. Rep. 385, it was said:
“It is established law in this state that when some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will begin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.”
In The Dist. Twp. of Spencer v. The Dist. Twp. of Riverton et al., 62 Iowa, 30, 17 N. W. 105, the syllabus reads:
“While the time for the commencement of an action may be extended by section 2537 of the code, in a case where a former action has failed for any cause other than negligence, that section does not extend the time for bringing into existence the conditions without which no action can be maintained. Accordingly, where a demand was necessary, and it was not made until after the time of the statute had run*199 against the claim, held that the claim was barred, notwithstanding it might otherwise have been saved under the provisions of said section.”
The judgment of the court below is affirmed.