South & North Alabama Railroad v. Brown , 53 Ala. 651 ( 1875 )

BRICKELL, C. J.

The object of the statute (R. C. § 1402), in requiring a speedy presentment to a railroad company of a claim for damages, because of injuries to stock, is, that the company may have an opportunity, soon after the occurrence of the injury, to inquire into its circumstances, and determine whether the claim should be paid or litigated. The presentment may be made by the party claiming the damages, or by any of the employees of the company, informed by him. of the existence of his claim. If the company appoints an agent for the special purpose of reporting such claims, and the claim is preferred to such agent, who makes report of it in writing to the company within sixty days, whether he be the pi’esident, or superintendent, or depot agent, or not, the presentment is sufficient. The company devolves on the agent thus appointed the duty it is contemplated the president, superintendent, or depot agent, would perform, that of communicating to it the existence of the claim; and if the report is in writing, the presentment is in writing, and the purposes of the statute are satisfied.

The company is put on inquiry as to the claim, and derives every benefit the statute intended to confer. There was no error in the refusal of the third charge requested by the appellant nor was there error in the second charge given by tbe court. The fact that appellant had an agent charged with the duty of taking charge of and paying claims for damages to stock; that he inquired for the plaintiff within sixty days after the claim accrued, to settle his claim, and his proposal to pay plaintiff’s attorney one-half of the sum claimed, were facts from which the jury were authorized to infer a presentation of the claim.

The bill of exceptions does not purport to set out all the evidence. It does not show under what circumstances the colt was killed, nor at what place on the railroad. Its only recitals are that the plaintiff introduced evidence tending to show the killing was the result of negligence ; and that the defendant offered evidence tending to show there was no negligence, and that the “engineer did all in his power, that is known to skillful engineers, to prevent” the injury. The charge that if the colt was killed under the circumstances testified to by the witnesses for the plaintiff, the defendant was liable, may have been proper. Its propriety depends altogether on the circumstances, and we must presume they were such as to warrant the charge. In Mobile & Ohio R. R. Co. v. Williams, ante p. 595, we had occasion to consider the statutes regulating the liability of railroad companies for injuries to domestic animals straying on its unenclosed track, and announced as our conclusions that when the plaintiff proved injury and ownership, the duty of showing that the injury was not caused by negligence was cast on the railroad company. If the injury occurred at either of the places mentioned in section 1399 of the Eevised Code, the company could relieve itself from liability only by evidence that it had observed all the requirements of that section. If there was negligence, it was not material that these requirements had been observed; and that there was not negligence, if they were not observed, would not relieve from liability. The first and second charges requested, we must presume, were refused because not pertinent to the evidence. The injury may have occurred at one of the places at which the, company was bound to observe the requirements of section 1399, and it may have been shown these requirements were not observed. If such was the evidence, the charges were properly refused, and we must presume, the bill of exceptions not repelling the presumption, they were refused on this ground.

Under the decision in Taylor v. Woods, 52 Ala. 474, the damages claimed being one hundred dollars, the action was without the jurisdiction of a justice of the peace, or a notary public, having the civil jurisdiction of a justice. No objection to the jurisdiction by plea in abatement, or otherwise, was made in the circuit court, but the appellant pleaded to the merits, thereby admitting the cause was properly before a court of competent jurisdiction. The decisions of this court are uniform that the circuit court, being a court of general jurisdiction, not limited by the amount in controversy, in original suits, when a cause is introduced into it by appeal from the judgment of a justice of the peace, it is competent for the parties to assent to the decision of the controversy, though the sum claimed exceeds that of which the justice has jurisdiction. The rule that consent cannot give jurisdiction does not apply. If the defendant against whom judgment is rendered does not by plea in abatement, or otherwise, object to the jurisdiction in the circuit court he cannot assign a want of it as error. Bentley v. Wright, 3 Ala. 607; Pruitt v. Stewart, 5 Ala. 112; Vaughn v. Robinson, 20 Ala. 229, S. C.; 22 Ala. 519; Waring v. Gilbert, 25 Ala. 395.

The judgment is affirmed.