Atchison

• Decision Date: 08 October 1892
• Citation: 31 P. 140,49 Kan. 524
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. FRANK E. SAGE

31 P. 140

49 Kan. 524

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. FRANK E. SAGE

Supreme Court of Kansas

October 8, 1892

Error from Pawnee District Court.

ACTION by Sage against the Railroad Company to recover for the loss of a stallion delivered to defendant for shipment. Judgment for plaintiff, February 20, 1889. The company brings the case to this court. The opinion states the material facts.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:

1. The court erred in overruling the motion to suppress certain depositions taken without notice to the attorneys for the defendant. The only question to be determined is, whether under the statutes of this state, the service of the notice to take depositions was sufficient. Section 352 of the code requires the notice to be served upon the adverse party (and of course that can only apply in a case where the adverse party is a natural person), or upon his agent or attorney of record, or left at his usual place of residence. The last clause, however, "left at his usual place of residence," can only apply also in a case where the adverse party is a natural person, because only a natural person can have a usual place of residence. It may be served however, upon his "agent or attorney of record," but this means, of course, the agent of record or the attorney of record. It does not mean that it may be served upon any agent of the party. That was not the intention of the statute.

It is provided in the same section, that the notice shall be served so as to allow the adverse party sufficient time by the usual route to attend, and one day for preparation. If served upon a station agent, and counting from the time of service, it would almost invariably happen that before the station agent if he should send it, could get the notice to the attorneys representing the corporation, the time for appearing at the taking of the depositions would have expired. In the case at bar, the attorneys for the corporation were known and had appeared in the suit, and therefore the plaintiff well knew who were the attorneys of record, and upon whom the service of notice might easily have been made. It is manifest that, irrespective of statute, a station agent, or an ordinary agent of a corporation, has no authority to represent it in a suit or litigation, and therefore has no authority to receive or acknowledge service of a notice concerning a suit, or one which is to be given in a suit.

Section 68a of the civil code 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 justices of the peace of such county may be served."

But it will be seen by this that service upon such agent is limited to "all process and notices issued by the court," and therefore necessarily excludes such notices as are not issued by the court, and which merely the parties to the litigation may give.

In the case of K. P. Rly. Co. v. Thacher, 17 Kan. 92, 103, it was held that the service of notice of an attorney's lien could not be made upon a person in charge of the depot in the county where the action is pending, and where such service was made it did not bind the corporation. In that case the court says: "This was not a process or notice to be issued by the court, but was a notice which might be given in the suit."

The attorneys representing the railroad company are the only agents authorized by it to attend to its litigation and to receive notices in or concerning the same, and when such attorneys appear for that corporation, and when it is known from the records of the suit who they are, there can be no reason why the notice to take depositions should not be given to them or served upon them. As it is not the duty of the station agent to attend to such matters or attend to such notices, the defendant should in no wise be bound by any notice given to him. So the depositions objected to were taken without proper or legal notice to the railway company, and its attorneys had no opportunity to cross-examine the witnesses whose testimony was taken. The defendant by its attorneys did not appear at the cross-examination of these witnesses, and did not waive service of notice to take depositions. The court, therefore, committed manifest error when it permitted this testimony, which was taken without opportunity of cross-examination, to be read against the defendant.

2. The court erred in the admission of certain evidence. In the deposition of Alfred Newman, taken without proper notice, as we have shown, it appeared that he was the darkey who took the horse from the livery stable to the freight depot to be shipped, and claiming to be an expert in all matters, as those of his class are apt to, testified, over the objection of the defendant, as follows:

"Ques. State whether or not it would be proper to ship a horse in a car in the condition in which you left the car in which this horse was shipped, in hot weather. A. It would not be proper."

This interrogatory and answer were objected to as incompetent, and the objection was overruled by the court, and excepted to by the defendant. Now, if there was any fact to be left to the determination of the jury as to whether the railroad company used a proper car or not, or used proper care with reference to the car, that was not a matter for expert testimony; it was a conclusion which the jury should draw from the evidence, and was not a conclusion which any witness could draw. If this witness could testify as to that matter, it would be no difficult matter to pick up from the streets any number of witnesses who would be willing to testify as experts in reference to the same subject. Expert testimony is unreliable enough, even in those cases in which it may be used, to justify an extension of the rule. Similar questions were held improper by this court in K. P. Rly. Co. v. Peavey, 29 Kan. 170; see also pp. 177, 178, and 179. Such evidence could be of no value whatever in this case, for it appeared that it was a common and customary thing to use a box car in the shipment of a single animal.

N. B. Freeland, for defendant in error:

Can a party in a case serve notice to take depositions on the station agent of a railroad company? The plaintiff in error says that it cannot, because this court (17 Kan. 92) has said that notice of an attorney's lien cannot be so served. We think there is a very marked distinction between the two notices. The notice of an attorney's lien is not a "process" in the case strictly so called. It is a notice after judgment, affecting different persons than the parties litigant, while "process" in the case, it seems to us, must include all papers (process) after the petition and until the judgment is final and at rest; and this view includes a notice to take a deposition, and does not include a notice of claim of attorney's lien after judgment.

If notice to take a deposition for the trial of a case is not "process," then what is it? The affidavit filed in relation to the matter is wholly immaterial. The railroad company, by its regulations, cannot change the law nor its application. The word "party"...