Alabama Great Southern Railroad v. Killian , 69 Ala. 277 ( 1881 )

STONE, J.

The claim in this case not being “ presented in writing ... to the president, treasurer', superintendent, or some depot agent of the railroad company,” the plaintiff in the-court below, appellee here, can claim no advantage from the claim the proof tends to show lie-made. — Code of 1876, § 1701. That section, as we understand it, being superseded by section. 1711 as to the time within which the claim may be made, still stands as a regulation as to the manner in which it must be preferred. It must still be in writing, presented to one of the officers or employes named. The suit in this case was brought more than six months after the alleged injury was done, and hence'that act can not be relied on as a presentation of the claim within six months. The language, of the statute is, that “ all claims for daniages shall be barred, unless complaint is made-within six months from the date of such killing or injury to live stock or cattle of any kind.” — Code, § 1711. In South and North R. R. Co. v. Morris, 65 Ala. 193, we said, “that section 1711, which allows six months within which claims of this kind may be sued on, is constitutional and in full force; and being in conflict with section 1701, and more recent in the date of its enactment, it repeals the latter section. The action was not barred then in sixty days, but in six months from the date of the injury for which this suit is brought.” Now, this language clearly asserts two propositions: that the claim is not barred in sixty days, and that it is barred in six months. The present is a suit for killing live stock by the defendant railroad company. The only evidence given of the presentation of the claim within six months, was that “the plaintiff introduced evidence tending to prove that within six months after the killing of said horse of plaintiff, the plaintiff gave notice to a section boss that plaintiff claimed damage for and on account of said killing of said horse.” The bill of exceptions states it contains all the evidence. This can not be regarded as a presentation of the claim within the requirements of the statute. As shown in the evidence, the ¡ilaintiff’s claim was barred, and the jury should have been so instructed.

Reversed and remanded.