Printable Format66-296. Recovery upon failure to pay full value of animal upon demand. In case such railway company or corporation, or the assignee or lessee thereof, shall fail for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner or his agent or attorney the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney's fee for the prosecution of the suit, and all costs in any court of competent jurisdiction in the county in which such animal was killed or wounded.
History: L. 1874, ch. 94, § 2; March 4; R.S. 1923, 66-296.
Law Review and Bar Journal References:
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 562 (1979).
"Recovery of Attorney Fees—An Historical Perspective," Ron Leslie, 53 J.K.B.A. 154 (1984).
CASE ANNOTATIONS
1. Receiver operating railroad liable for killing of stock. Rouse v. Redinger, 1 Kan. App. 355, 360, 41 P. 433.
2. Party must bring himself clearly within terms of act. C.K. & W. Rld. Co. v. Totten, 1 Kan. App. 558, 42 P. 269.
2a. Proof of demand in accordance with act must be made. C.K. & W. Rld. Co. v. Totten, 1 Kan. App. 558, 42 P. 269; A.T. & S.F. Rld. Co. v. Bartlett, 2 Kan. App. 167, 172, 43 P. 284.
3. Sufficiency of bill of particulars in action for damages. A. T. & S. F. Rld. Co. v. Bartlett, 2 Kan. A. 167, 172, 43 P. 284; K.P. Rly. Co. v. Yanz, 16 Kan. 583.
4. Oral statement to claim agent of company held sufficient. Railway Co. v. Kinman, 9 Kan. App. 633, 58 P. 1037.
5. Limitation of actions; action prematurely brought. Railway Co. v. Kinman, 9 Kan. App. 633, 58 P. 1037.
6. Attorney's fee held to be in nature of penalty. K.P. Rly. Co. v. Mower, 16 Kan. 573.
7. Legislature has power to provide for allowance of attorney fees. K.P. Rly. Co. v. Mower, 16 Kan. 573.
8. Provision for attorney fee is constitutional and valid. K.P. Rly. Co. v. Mower, 16 Kan. 573.
9. Sufficiency of finding as to attorney fees; fees allowed. K.P. Rly. Co. v. Yanz, 16 Kan. 583.
10. Proof of value of animal; indirect and comparative evidence inadmissible. A. & N. Rld. Co. v. Harper, 19 Kan. 529.
11. District court may include attorney fees of trial before justice. Gulf Rld. Co. v. Shirley, 20 Kan. 660.
12. Appearance by corporation admits corporate existence. Gulf Rld. Co. v. Shirley, 20 Kan. 660.
13. Evidence of value of services of attorney; opinion of witness. C.B.U.P. Rld. Co. v. Nichols, 24 Kan. 242.
14. Matters considered by jury in determining market value of animal. C.B.U.P. Rld. Co. v. Nichols, 24 Kan. 242.
15. Attorney fee may be recovered where other facts shown. C.B.U.P. Rld. Co. v. Nichols, 24 Kan. 242; St. Louis & S.F. Rly. Co. v. Armstrong, 25 Kan. 561.
16. Defective complaints favored less on account of allowance of attorney fee. St. L. & S.F. Rly. Co. v. Byron, 24 Kan. 350.
17. Bill of particulars must show animals were killed in county. St. L. & S.F. Rly. Co. v. Byron, 24 Kan. 350.
18. Stock killed while receiver in charge of property; damages recoverable. K.P. Rly. Co. v. Wood, 24 Kan. 619.
19. Attorney fees not allowed for services in supreme court. K.P. Rly. Co. v. Wood, 24 Kan. 619, 626.
20. Construction of bill of particulars as to amount of attorney fee. St. Louis & S.F. Rly. Co. v. Armstrong, 25 Kan. 561; Mo. Pac. Rly. Co. v. Abney, 30 Kan. 41, 1 P. 385.
21. Amendment of bill of particulars to show proper demand made. Mo. P. Rly. Co. v. Piper, 26 Kan. 58.
22. Sufficiency of allegation concerning want of proper fence. Mo. P. Rly. Co. v. Piper, 26 Kan. 58.
23. Misstatement of value of animal in demand; demand not void. Mo. Pac. Rly. Co. v. Abney, 30 Kan. 41, 1 P. 385.
24. Construction of bill of particulars as to allowance of attorney fee. Mo. Pac. Rly. Co. v. Abney, 30 Kan. 41, 1 P. 385.
25. Sufficiency of pleadings and evidence; allowance of attorney fee. K.C. Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329, 330, 18 P. 285.
26. Construction of allegation that notice served upon agent of company. Mo. Pac. Rly. Co. v. Morrow, 36 Kan. 495, 13 P. 789.
27. Statement of facts and prayer for attorney fee will sustain recovery. K.C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 736, 21 P. 589.
28. Section cited in upholding validity of Laws of 1885, chapter 154 (see 66-308). Mo. Pac. Rly. Co. v. Harrelson, 44 Kan. 253, 256, 24 P. 465.
29. Statement of claim considered and held sufficient demand hereunder. Ft. S.W. & W. Rld. Co. v. Holman, 45 Kan. 167, 25 P. 585.
30. Petition should allege injury occurred in county where action brought. W. & C. Rly. Co. v. Gibbs, 47 Kan. 274, 27 P. 991.
31. Facts considered and demand held sufficient. U.P. Rly. Co. v. Shelley, 49 Kan. 667, 31 P. 304.
32. Snow and ice on cattle guards; attorney's fee not allowed. Martin v. Railway Co., 92 Kan. 595, 141 P. 599.
33. Purpose of allowing attorney fee when demand refused; statute held constitutional. Dannenberg v. Railway Co., 96 Kan. 708, 710, 153 P. 504.
34. Excessive demand, resisted on different ground, attorney fee allowed. Dannenberg v. Railway Co., 96 Kan. 708, 710, 153 P. 504.
35. Remedy under both stock law and fence law proper. Abbey v. Railway Co., 108 Kan. 85, 87, 194 P. 190.
36. Action before justice of peace; appeal; allowance of attorney fee. Abbey v. Railway Co., 108 Kan. 85, 87, 194 P. 190.
37. Stock passing over defective cattle guard; attorney fee allowable. Abbey v. Railway Co., 108 Kan. 88, 90, 194 P. 191.