112 Kan. 304 | Kan. | 1922
The opinion of the court was delivered by
On February 20, 1920, W. P. Toothalcer sued Walker D. Hines, director-general of railroads, for the value of a steer killed by an engine on the Union Pacific railroad. At the trial, on February 28, 1921, John Barton Payne, the agent appointed by the president under section 206 of the federal transportation act of 1920 (41 U. S. Stat. 461), was substituted as defendant. A jury was impaneled, after which an objection to the introduction of evidence was sustained on the ground that the petition did not state a cause of action. Judgment was thereupon rendered in favor of the defendant, and'the plaintiff appealed. The case is by this court entitled as above in accordance with the practice of naming the parties as they appeared in the original petition and adding any others who are either appellants or appellees.
Briefs on each side were filed in this court, and when the case was called for oral argument, on October 31, 1922, an objection to entertaining the appeal was raised on the ground that James C. Davis had succeeded John Barton Payne on March 28, 1921, and as no
The federal statute provides:
“That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or'in relation to the discharge of- his official duties, shall abate by reason, of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against -his successor in office, and the Court may make such order as shall be equitable for the payment of costs.” (Act of February 8, 1899, ch. 121, 30 U. S. Stat. 822.)
Under this statute it is held that if the successor is not substituted within the time named no substitution can be made, and that without it no review of the judgment can be had. (LeCrone v. McAdoo, 253 U. S. 217—not a railroad case, however.)
Prior to this enactment it had been held that an action against a public officer as such abated by his death or retirement, except in the case of a continuing body, or perhaps of an officer acting only in a representative capacity. • (Thompson v. United States, 103 U. S. 480; Murphy v. Utter, 186 U. S. 95.) A reason given for this holding was that in the cases in which it was made the relation of the officer to the matter was personal. (United States v. Boutwell, 84 U. S. 604; see, also, Richardson v. McChesney, 218 U. S. 487; Pullman Co. v. Croom, 231 U. S. 571.) The statute was passed in response to a suggestion of the court as to its necessity in view of the holding referred to. (U. S. ex rel. Bernardin, v. Butterworth, 169 U. S. 600, 605.) Considered in the light of the history and obvious purpose of the statute, it might be argued that it does not apply to the present case, where the defendant acts in a purely representative capacity. That question, however, seems to be foreclosed by a recent decision in which the statute appears to have been applied in similar circumstances, although without an opinion beyond a reference to the statute and to LeCrone v. McAdoo, supra. (John Barton, Agt., etc., v. Industrial Board of Illinois, 42 S. C. R. 462.)
In two recent cases in this court, in situations somewhat similar to those here presented, formal substitution was held unnecessary, no reference however being made in the opinions to the federal statute above quoted or the decisions under it. (Helm v. Railway Co.,
It may be, however, that considered alone such appearance could not effect a valid substitution because not made within one year after the change in federal agents, inasmuch as' except for the act permitting it a substitution could not be accomplished even by consent. (U. S. ex rel., Bernardin v. Butterworth, 169 U. S. 600.) This feature of the matter is affected by the fact that on July 6, 1921, less than a year after the change, a notice of appeal addressed to the attorneys “for defendant John Barton Payne director-general of railroads as agent of the president,” was served, service being ac
2. The petition alleged in substance that the steer got upon the track at a point where the gate of a sufficient fence constructed by the railroad company was so covered by a snowdrift that the animal was enabled to walk over it without hindrance; and that this condition had existed for three weeks with the knowledge of the defendant’s agents and without effort on their part to correct it.
The defendant argues that the petition does not allege negligence. It does not use that word, but under the liberal interpretation to which it is entitled when attacked only by an objection to the introduction of evidence the allegation that the sno.w had been permitted to cover the gate for three weeks without an effort to remove it must be held to imply that the exercise of reasonable diligence would have resulted in its removal within that period.
It is also argued that inasmuch as the obligation rested upon the plaintiff to keep the gate closed (Plummer v. Railway Co., 86 Kan. 744, 121 Pac. 906), it was his duty also to keep it sufficiently free from snow to act as a barrier against the escape of his cattle. We do not regard the conclusion as sound. The accumulation of the snow is not shown to have been due to any mismanagement of the gate, or to its existence as a gate as distinguished from any other part of the fence.
The statute in terms makes a railroad company liable for all cattle killed by the operation of its trains, irrespective of its negligence (Gen. Stat. 1915, § 8557), but provides that the act shall not apply where its road is enclosed with a lawful fence (§ 8561). The resulting obligation to furnish a fence is quite analogous to the duty to maintain cattle guards. It has been determined that the railroad company is required to exercise reasonable diligence to keep its cattle guards free from such accumulation of snow and ice as to render them ineffective. (Martin v. Railway Co., 92 Kan. 595, 141 Pac. 599.) Inasmuch as the purpose of the fence is to turn cattle we think a parity of reasoning requires us to hold that the obligation to maintain it includes the duty of seeing that it continues to be
3. It is suggested that at all events the company was under no duty to clear away the snow on the side of the fence away from the track. The petition, however, alleges that the fence and gate is wholly upon the land and right of way of the company, being but 50 feet from the track; that an enclosure constituting the plaintiff’s pasture included the strip of the company’s land outside of the fence,~50 to 100 feet in width, which for several years the plaintiff had so used without any lease or other agreement between him and the company. As the company has elected to place the fence wholly on its own land we think its obligation to keep it effective requires it to use reasonable diligence to remove the snow on either side sufficiently to insure this. Although the plaintiff might be presumed. from his occupancy of the strip with the consent of the owner to be a tenant at will (Gen. Stat. 1915, § 5956), the company is not shown to have relinquished the right to occupy it so far as necessary for the operation of the road.
The judgment is reversed and the cause is remanded for further proceedings.