Mendell v. Chicago & North Western Railway Co.

20 Iowa 9

• Court: Supreme Court of Iowa
• Decided: January 24, 1865
• Status: Published

Opinion

Wright, J.

i.rail’tSeeof loss. The statute provides that if the railroad liable thereunder, shall refuse or neglect to pay the value of any property so injured or destroyed, “after • thirty days’ notice in writing given, accompanied hy an affidavit of the injury or destruction of said, property to any officer, &c.,” it shall be held to pay double the value, &c.

In these cases the notices were duly directed to the company, set forth the time, manner and particular nature and extent of the injuries received, advised the defendant of the amount claimed, and the value of the property, and further stated that unless this amount was paid within thirty days, plaintiffs would claim and hold the company liable for double said amount and costs. These notices and all the facts therein contained, were duly verified by affidavit. To the introduction of these notices and affidavits in each case, defendant objected, upon the grounds: First, That it was but a sworn notice, and not a notice and affidavit. Second, That service should have been made by reading the original and leaving a copy, and not by leaving the original.

In sustaining these objections, or either of them, the court erred. The statute prescribes no particular form for the notice and affidavit. That the notice itself, duly verified, should contain a statement of the injury or destruction complained of, instead of having a notice without such matter, but accompanied, or followed by the very same statement, could make no possible difference. We can conceive of no possible prejudice to result by following one, rather than the other course, and none has been pointed out. If the notice contains the statement, and is duly sworn to, the affidavit of the injury does accompany the notice, for how more effectually could it accompany it, than by being contained therein. The object was, to provide a notice and to advise the company how much and for what the injured party claimed. The sanctity of an oath was provided, that the company should not be made liable to the penalty of double damages, for the failure to pay an extravagant and unverified demand. The notice and statement being in writing, if the injury or destruction shall be sworn to, the substance is attained, and the form becomes immaterial.

2._ser. noticeí Why the notice should be served by leaving a copy rather than the original, we cannot conceive. Certain it is, that the statute itself recognizes no such distinction. We suppose that proof might be made ore temos, on the trial, that the notice was duly given or served. Of course the notice itself must be in writing, as also the statement contemplated, but why one of two papers containing the same matter, rather than the other, should be delivered, we cannot imagine. There is, strictly speaking, no such thing as an original notice or paper in such case — at least not until there is a service, and then the paper delivered is, if either, for that becomes the proper one by which to measure defendant’s liability. Whether this delivery or service could be proved by an ex parte affidavit, indorsed on the paper retained, we need not determine, as no such question is raised.

sjpre¿e ourt' Plaintiffs had a verdict for the actual value of the property destroyed. They now suggest, that if we should find in excluding the offered proof, they are entitled, as of course, to double damages. We need only suggest, however, that this proof was not made in the court below, and we do not know that it can be. Defendant denies the notice, and though the paper offered should be admitted, other testimony might be introduced which should legitimately be submitted to the court or jury under the issues joined.

Reversed.