Williams v. Yazoo & Mississippi Valley Railroad

46 So. 399, 93 Miss. 77

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

Anderson, the attorney for the plaintiff in this case testified that he mailed the notice of the claim within ten days, and that it was not sworn to. The railroad company made no objection to this testimony, nor was any motion ever made to exclude it. The point was not made at all that the claim failed because of not having been sworn to within the ten days, until the court was asked to instruct the jury peremptorily to find for the defendant. The case originated in the court of a justice of the peace, where no pleadings in writing are required. Owing to this fact, and to the course pursued by the appellee on the trial in the circuit court, the plaintiff had no reason to suppose this defense would be made. If any objection had been made to the testimony of Anderson as to the mailing of the notice, appellant would have had opportunity of more fully establishing the receipt of the notice and what was done under it.. We do not think, under the circumstances of this case, that the appellee should have been permitted to make the point in the way in which it was made. It should have been treated as a waiver, within the principles announced in the case of Lasky v. Southern Express Company, 92 Miss., 268, 45 South., 869. It was the duty of the railroad employe, to whom the notice was mailed, to answer, and to answer promptly, and then make the point, if it was intended to rely upon that point. Railroad Co. v. Bogard, 78 Miss., 11, 27 South., 879. It is very questionable if the time (ten days) could be, in any case, upheld as a reasonable regulation.

Reversed and remanded.