Atchison, Topeka & Santa Fé Railroad v. Sage

The opinion of the court was delivered by Johnston, J.: Frank E. Sage brought an action in the district court of Pawnee county against the railroad company to recover damages for the loss of a stallion that was shipped by him from Kansas City, Mo., to Earned, Kas., and which is alleged to have died from injuries inflicted by the railroad company. It is alleged that the animal was a four-year-old thoroughbred stallion, of the value of $2,000, and it was delivered to the railroad company for shipment over its line on May 10, 1887, under an ordinary stock contract, which required the safe transportation and delivery of the animal at Earned, Kas.; but it is averred that the animal was stowed away in an ordinary box car, which was closed up in such a way that the animal became partially suffocated and unable to stand steadily upon his feet, and thereby was plunged and thrown against the sides and ends of the car in which he was being transported, and thereby bruised and injured, from which injuries he died before he was delivered to the owner. At the trial the jury found that the company had failed to furnish a proper car for the transportation of the animal, and in failing to properly ventilate the car which was furnished. [530] By their general verdict, they awarded damages to the plaintiff below in the sum of $1,340.46. The railroad company complains, and first assigns as error the overruling of a motion to suppress certain depositions which are alleged to have been taken without legal notice to the company. The depositions of three important witnesses, who testified with reference to the condition of the horse at the time the shipment was made, were taken in Kansas City, upon a notice served upon the station agent at Lamed, Kas. It was shown that the agent upon whom the notice was served had no authority from the defendant to receive or accept notice of the taking of depositions, , nor to receive or accept service of any notice in any case pending, except such authority as is conferred by the statutes of the state. The notice given does not comply with the requirements of the code, and is not sufficient. Section 352 of the code provides that — “Prior to the taking of any deposition, ... a written notice . . . shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of residence. The notice shall be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service.” This statute provides for a notice to be served upon the adverse party, where such party is a natural person, or upon his “agent or attorney of record.” It manifestly does not contemplate that it may be served upon any attorney or any agent of a party who may be found in any part of the state, and who may have no connection with the litigation, but it evidently must be served upon some one authorized to represent the adverse party in the action, as shown by the record. It surely does not mean an agent living in a remote part of the state, who has been employed for another purpose, who has no knowledge of or authority in the case, and who could not in many instances, under the limited time prescribed by the statute, communicate with the adverse party, so that he might have sufficient time for preparation, and to attend upon [531] the taking of the deposition. The right to make service of the taking of a deposition upon a station agent seems to be based largely upon § 68a of the code of civil procedure, which provides that “every railroad company or corporation . . . is hereby required to designate some person residing in each county into which its railroad line . . .- may or' does run, or in which its business is transacted, on whom all process and notices, issued by any court of record or justice-of the peace of such county, may be served.” And § 68c provides that if such corporation fails to designate some person in the manner prescribed, that then “such process” may be served upon any freight agent, ticket agent or station keeper of the corporation in the county. It is contended that a notice to take depositions is a process or notice, within the meaning of the foregoing provisions. It will be observed, however, that service upon such agents is limited to “all process and notices issued by any court,” and as a notice to take depositions is not issued by or from the court, it is not governed by this provision. That such a notice is not process within the meaning of the statute last quoted, and that a notice upon the agent of the corporation is insufficient, was long ago determined, in Railway Co. v. Thacher, 17 Kas. 92. It was there held that the notice of an attorney’s lien could not be made upon a person in charge of the depot in the county where the action was pending, and that a service made upon such person was not binding upon the company. It was decided that the statute relating to the service of process upon the agents of railroad and stage corporations “applies only to process strictly so called, or at least does not apply to notices like the one in question, a notice prepared and served by the party, and not issued by or upon the order or at the instance of the court. There is therefore no statute authorizing the service of such a notice upon this agent of the corporation, and it is not a matter at all within the scope of his-duties. Hence, neither by statute nor upon general principles-is the corporation bound by the notice thus given.” So, here,, the notice to take depositions is not a process or notice to be [532] issued by the court; and hence the company was not legally •served with notice, and the court committed error in permitting the testimony which was taken without the presence of counsel for the company and without opportunity of cross-examination to be read in evidence. Only one other matter requires consideration. A witness was asked whether the car furnished by the company was in a proper condition to ship a horse • in hot weather, and over the objection of the defendant he was permitted to answer that the car was not a proper one for the safe transportation of the animal. In the opinion of the writer, the question whether the car was in a proper condition was one to be determined by the jury, which required no special training or experience to decide, and hence the opinion of the witness was inadmissible. The practice of shipping animals by rail is so common, and the kind of cars used and necessary for their safe shipment is so generally known, that the opinion of an expert as to what constitutes a proper car for such purpose is not needed. All the facts about the condition of the car upon which the opinion of the witness was founded could be made intelligible to the jury, so that they could draw a correct conclusion as readily as the witness. But if the question was one which required special study, knowledge, and skill, and upon which the opinion of an expert was admissible, the testimony of this witness should not have been received. He had not shown himself to be competent, or to have any special skill or experience with reference to the shipment of animals. He was an ordinary employé of a livery stable in Kansas City, and although he stated that he was an expert in the matter, no testimony was offered of any experience or training which would make his opinion of any value as to the condition of the cars in which stock might be safely shipped. For the .admission of improper testimony upon material issues, there must be another trial of the cause. The judgment of the district court will therefore be reversed, and the cause remanded for a new trial. All the Justices concurring.