Chi., R. I. &. P. Ry. Co. v. Craig

• Decision Date: 16 April 1916
• Docket Number: Case Number: 6589
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. &. P. RY. CO. v. CRAIG.

1916 OK 452

157 P. 87

59 Okla. 18

CHICAGO, R. I. &. P. RY. CO. v. CRAIG.

Case Number: 6589

Supreme Court of Oklahoma

Decided: April 16, 1916

Syllabus

¶0 1. Carries--Transportation of Live Stock--Limitation of Liability.

Where an action is brought to recover damages upon an interstate shipment of live stock, under a written contract, containing the provision that as a condition precedent to recovery of damages for any loss or injury to, or detention of live stock, or delay in transportation thereof, a written notice must be given of such damage to a designated representative of the carrier, within one day after the delivery of the stock at its destination, such provision being reasonable and valid, the failure to give such notice is a complete bar to such action.

2. Same.

In the absence of fraud on the part of a carrier, the shipper of an interstate shipment of live stock cannot, by showing that he executed the contract of shipment hurriedly, or without due care, or that he was ignorant of its conditions, or failed to read the same, avoid the limitations of the carrier's liability contained in such contract.

Error from Superior Court, Garfield County; Dan Huett, Judge.

Action by S. C. Craig against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff and defendant brings error. Reversed and remanded, with directions to dismiss action.

K. W. Shartel, C. O. Blake, R. J. Roberts, W. H. Moore, and J. G. Gamble, for plaintiff in error.

H. Z. Wedgwood, for defendant in error.

COLLIER, C.

¶1 This action was brought by the defendant in error, hereinafter styled plaintiff to recover damages for negligence in an interstate shipment of cattle made on the 8th day of February, 1913, from Meno, Oklahoma, to Kansas City, Mo.

¶2 There is but one material question involved in thin appeal, and that is whether or not the shipment was made under contract attached as Exhibit "2" of defendant's answer and introduced in evidence.

¶3 The said contract, among other provisions, provided:

"Seventh. That as a condition precedent to claiming or recovering damages for any loss or injury to or detention of live stock, or delay in transportation thereof, covered by this contract, the second party, as soon as he discovers such loss or injury, shall promptly give notice thereof in writing to some general officer, claim agent or station agent, of the first party, or to the agent at destination, or to some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, as the case may be, and before such stock is mingled with other stock; and such written notice shall in any event be served within one day after delivery of the stock at its destination, in order that such claim may be fully and fairly investigated. It is agreed that a failure to strictly comply with all the foregoing provisions shall be a bar to the recovery of any and all such claims."

¶4 The evidence is without material conflict as to the negligence complained of and the injury suffered, and the undisputed evidence is that the notice required by said sec. 7, of said contract was not given.

¶5 The evidence as to the execution of the contract in that plaintiff signed the contract offered in evidence; that he signed the same in the depot at the window, that at the time he signed it he believed that there were one or two lights, one in the office and the other was in the agent's office; and at the time he signed the contract, it was not completed and agent of defendant was not ready to turn it over to him: that after he signed the paper he went to get his grip, which was about half a block away, which would probably take three or four minutes; that when he got back he got right on the caboose and they whistled out just as he stepped upon the platform: that he did not know what it contained: that from the time he got on the train until he got off he could not say that he had an opportunity to read the contract; that the agent of the defendant did not give him the contract at that time; that he did not read it or attempt to read it; that he just signed where be told him to.

¶6 There is no evidence as to what part of the contract was incomplete at the time the plaintiff signed the same other than that the number of the ears in which the cattle were shipped had not been inserted therein, and there is no evidence to sustain the averment in plaintiff's reply that the said contract was obtained through deceit and fraud.

¶7 At the close of the testimony of plaintiff the defendant demurred to the evidence, for the reason that the evidence showed that the plaintiff was not entitled to recover in this action from the defendant, and it appeared that the shipment was made under written contract and there has been no evidence to set aside such contract, and that the contract is in full force and effect, and there is no evidence showing compliance with the contract, but on the contrary, the evidence shows there was a failure to comply with the terms of the contract, which demurrer was overruled and exception duly saved.

¶8 Upon the close of the testimony the defendant requested a directed verdict for the defendant, which was overruled and duly excepted to. The jury returned a verdict for the plaintiff in the sum of $ 100, which was duly excepted to.

¶9 The defendant finally moved for a new trial, which was overruled and excepted to, and judgment entered in accordance with verdict, to which the defendant duly excepted.

¶10 There are two errors assigned by defendant: (1) The court erred in overruling defendant's demurrer to plaintiff's evidence. (2) The court erred in overruling defendant's motion for directed verdict in its favor.

¶11 We are of the opinion that the shipment was made under the contract in evidence, and the evidence showing the manner of the execution of the contract and the want of knowledge of the contents on the part of the plaintiff we do not think sufficient to avoid the contract of shipment.

¶12 In St. L. & S. F. R. Co. v. Ladd, 33 Okla. 160, 124 P. 461. Mr. Chief...