Brammer v. Wabash Railway Co.

Given, J. I. We have the question whether under the notice given by plaintiff to defendant, plaintiff is entitled to recover double damages, under section 1289 of the Codo of 1873, which contains the following: “And if such corporation neglects to pay the value of or damage done to any such stock within 30 days after notice in writing, accompanied by an affidavit of such injury or destruction, has •been served on any officer, station or ticket agent employed •in the management of the business of the corporation in the county where the injury complained of was committed, such owner shall, be entitled to recover double the value of the .stock killed or damages caused thereto.” It is not provided what the notice shall contain, but in Manwell v. Railway Co., 80 Iowa, 662, we said as follows: “It was said in Mendell v. Railway Co., 20 Iowa, 11, in effect, that the purpose of the notice and affidavit is to advise the corporation how much and for what the injured party claims. The .affidavit must show the injury to or destruction of the property. The notice should advise the corporation of the loss of which complaint is made and of the demands of the person injured on account of it. The notice and affidavit together should, so far as practicable, inform the company of such material facts as will enable it to investigate the claims made, and decide whether it will pay the amount •demanded without litigation within the time limited. These requirements are not within the letter, but they are within the evident spirit and purpose, of the statute.” In addition to service of the notice and affidavit set out to the petition, it appears that on the sixteenth day of November, 1893, the plaintiff received from the defendant’s station ■agent at Percy a blank stock report, which he filled up, and forwarded, stating therein, “That there was one bay mare killed, 5 years old, on or about 10 or 11 of Nov., 1893”; and on said sixteenth day of November said report so verified was delivered to the defendant’s station agent at Percy,, and by him forwarded to the defendant’s adjusting agent. [379] It will bo observed that this report states that it was a bay marc, 5 years old, that was killed, and that she was killed about the tenth or eleventh of November, 1893; that tho notice and affidavit served March 22, 1894, says that on October 17, 1893, at a point one mile from Percy, defendant’s train injured and killed “one bay horse, 4 years old”; and in his petition the plaintiff asks to recover for the killing ■of one bay horse on or about the seventeenth day of October, 1893. Plaintiff testifies that he did not have a horse or mare killed or injured on or about the seventeenth day of October, 1893; that but one horse ivas killed; that it was a bay mare, past 4 years old, and that it Avas killed about the tenth or eleventh of November, 1893. The court instructed that it Avas claimed that the notice and affidavit Avere insufficient, and added: “You are instructed that the question of the sufficiency of said notice is one of laAv and must be determined by the court; and you are further instructed that said notice and affidavit are sufficient, and, if you shall find that plaintiff is entitled to recover, your verdict should be double the reasonable value of said mare.” In Mendell v. Railway Co., supra, the notice Avas sworn to, and the service was by leaving the original notice, instead of a copy,. ■and the contentions were as to the sufficiency of such notice ■and service. "What the notice should contain was not involved. In Manwell v. Railway Co., supra, the notice claimed $100 damages, and the contention was whether, under said notice, the plaintiff might recover, as double •damages, more than twice the amount claimed in the notice. Beyond these questions Avhat is required to bo stated in such notices was not involved, and Avhat is said on that subject is not conclusive. Notwithstanding the discrepancies between the notice and affidavit and the facts, the appellant ■could not be and was not misled as to the claim made. 4 It was sufficiently advised to put it upon inquiry, which, if diligently pursued, would have discovered to it the: facis concerning the plaintiff’s claim. There is not sufficient evi [380] donee to sustain the allegations of the answer upon which an estoppel is claimed. We think there was no error in the court instructing that the notice and affidavit were sufficient. — Appirmed. Granger, O. J\, not sitting.