Central Branch Railroad v. Ingram

20 Kan. 66 | Kan. | 1878

The opinion of the court was delivered by

Brewer, J.:

This was an action brought under the- law of 1874, to recover for the value of a certain mare killed by the train of defendant. The action was brought before a justice of the peace, and upon the trial judgment was rendered in favor of the plaintiff. A bill of exceptions was taken, and the case removed on error to the district court, and upon affirmance of judgment there, is now brought here.

The only question in this case is, as to the sufficiency of the demand, notice of which was served only upon the general superintendent. The statute provides that an action may be brought if the railway company “shall fail, for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal, if killed, or damages thereto, if wounded.” And further, in a subsequent section, that “the demand * * * may be made of any ticket-agent or station-agent of such railway company.” Upon this, counsel invokes the aid of the rule, that where a new right is created by statute, and a specific remedy provided, the right can be pursued only through the remedy prescribed; Almy v. Harris, 5 Johns. (N. Y.) 175; Stafford v. Ingersoll, 3 Hill (N. Y.), 38; Renwick v. Morris, 7 Hill (N. Y.), 575; and insists, that the word “ may ” should be construed as equivalent to “ must,” inasmuch as the rights of third parties are concerned; that demand is a prerequisite to any action, and that demand can be made only upon a ticket or station-agent. We cannot assent to this claim, nor give to the word “may” such imperative construction. An examination of the statute indicates clearly the intention of the legislature to enlarge, by the third section, rather than restrict in the matter of demand, and that “ may ” is here used, in its ordinary and permissive sense, and as giving to the owner of the stock an additional privilege and increased facility in the collection of his claim. Were this third section omitted, notice of demand would have been served upon some general officer of the company, or some one specially charged with the adjustment of such claims. But such an officer may not be easy of access in each county through which the road runs, and so, to facilitate the collection of these claims this section was added authorizing the service of notice upon ticket and station-agents — officers who are not general representatives of the company, and whose duties do not include the adjustment of such claims, but who are ordinarily to be found in every county. Surely it would be strange if service of a notice was good upon an officer whose duties in no manner embraced the subject-matter of the notice, and not good upon one chai’ged with the care of such matters, or one having general control. Before such an intention is imputed to the legislature, (and it is the legislative intention which we are to ascertain, and which must control,) the language should clearly indicate such intention to require such construction. Again, if the principal were an individual instead of a corporation, a statute authorizing notice to be served upon an agent would not be construed as making void notice served upon the principal. The greater includes the less. The owner, the party actually responsible, is the one to whom notice in the end is to go; and permitting it to be served upon an agent, is simply granting an additional aid to the claimant. But the general superintendent of a company represents the company for all purposes connected with the management of its road. Ticket and station-agents are but his aids. Contracts with him concerning injuries by tbe trains, or on the road, and promises by him to pay for such injuries, bind the company. Mo. P. Rld. Co. v. Thomas, 19 Kas, 256; A. & N. Rld. Co. v. Reisner, 18 Kas. 458. Notice to him, of any matter connected with such injuries, is notice to the company; demand ■upon him is demand upon the company. And before a statute is to be construed as limiting his capacity to represent ■the company as to any matters connected, with the management of the road, the language must, as we said above, be plain. • We conclude then that proof of demand upon the general superintendent of a railroad company, is sufficient proof of demand upon the company to authorize a recovery under the special statute of 1874.' So far as the notice failing to specify the amount of attorney-fees claimed, none are •due until after suit is brought; and the actual value of the •animal was stated.

We have considered the principal question in this case, passing by the question of practice; but our silence upon the latter must not be construed into an overruling of the point made by the learned counsel for defendant -in error.

The judgment will be affirmed.

All the Justices concurring.