Central Vt. Ry. Co. v. Robbins & Pattison
| Decision Date | 09 January 1911 |
| Docket Number | 117. |
| Citation | 184 F. 439 |
| Parties | CENTRAL VT. RY. CO. v. ROBBINS & PATTISON. |
| Court | U.S. Court of Appeals — Second Circuit |
C. B Whittlesey, Ernest Chadwick, and Michael Kenealy, for plaintiff in error.
John T Robinson and C. W. Comstock, for defendants in error.
Before LACOMBE and WARD, Circuit Judges, and HOUGH, District Judge.
The act further declares that:
'No action shall be brought under section 3779 unless written notice of the claim is given to such company within 20 days after the fire, specifying the day and time of the fire, the property injured and the amount claimed as damages. ' Id. Sec. 3780.
The plaintiffs below gave a notice within the required time, satisfactorily described the property injured, and assigned the date of fire, but stated 'the amount claimed' as follows:
'We hereby claim of your company compensation to the extent of the injury to said property which we have sustained by reason of said fire, to wit, $21,500.'
Some four months after notice, this action was begun, the declaration laying the damages at $25,000. The suit was not tried for over 3 1/2 years from date of summons, and shortly before trial an amendment raised the damages to $40,000.
The record reveals no objection ever made to the original declaration, nor any exception to the allowance of the tardy amendment above noted. The only exception taken and urged is that the court below, instead of charging the jury, as requested, that 'plaintiffs must be bound by the amount which they set forth as their damage in the notice,' did charge that they were not necessarily 'bound by that statement and confined to that amount,' and left the statement or notice itself, as an early and important admission, to be regarded by the jury with all the other material and relevant testimony in the case.
Therefore the substance of the only point raised by this exception is that, as the action did not lie at common law, it must rest on the statute alone; that any statutory creation in derogation of common law must be strictly construed; and that this statute requires as a condition precedent to bringing any action 'a written notice * * * specifying * * * the amount claimed as damages. ' Wherefore no action will lie for a greater amount than that specified, or in this case $21,500, with lawful interest.
The history of litigation affecting railway liability for spark emission is fully traced in St. Louis & San Francisco Ry. v. Mathews, 165 U.S. 1, 17 Sup.Ct. 243, 41 L.Ed. 611, and this Connecticut statute and its predecessors especially considered. It may then be assumed that this and other similar acts are not penal (Newton v. N.Y. & N.E.R.R., 56 Conn. 21, 12 A. 644), and are beneficial and remedial (Grissell v. Housatonic R.R. Co., 54 Conn. 462, 9 A. 137, 1 Am.St.Rep. 138; Martin v. N.Y. & N.E.R.R. Co., 62 Conn. 340, 25 A. 239).
This is true, notwithstanding the statute be regarded as in derogation of common law; for in respect of railway sparks the ancient rule that 'if my fire by misfortune burns the goods of another man he shall have his action on the case against me' has not become general American law, and certainly has not been received in Connecticut. Burroughs v. Housatonic R.R., 15 Conn. 124, 38 Am.Dec. 64; Grissell's Case, supra. The cause narrows, therefore, to an inquiry as to what shall be regarded as a substantial compliance with the statute, in respect of the terms of a notice precedently required by an act which intends 'that when railroad companies destroy bridges or other property they should pay for it,' and authorizes a statutory action only; i.e., not dependent on negligence or other tortious act by defendant. Martin's Case, supra, at pages 339 and 341 of 62 Conn., at page 241 of 25 Atl.
The state decisions nearest the point have not arisen under the statute here involved, but under somewhat similar acts requiring notices as conditions precedent to actions against railways for death by tortious act (Gen. St. 1902, Sec 1130), and to suits against towns or other municipal corporations for damages from defective roads or bridges (Id. Sec. 2020). The first of these familiar actions is obviously unknown to the common law, and the second has been held to rest only on an act penal in its nature, and, independent of the statute, not maintainable by a private person (Bartram v. Sharon, 71 Conn. 686, 43 A. 143, 46 L.R.A. 144, 71 Am.St.Rep. 225), but apparently otherwise of bridges in an early case (Lewis v....
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