Atchison, T. & S.F. Ry. Co. v. Baldwin

• Court: Colorado Supreme Court
• Writing for the Court: [53 Colo. 420] GABBERT, J. [53 Colo. 424] MUSSER, J.
• Citation: Atchison, T. & S.F. Ry. Co. v. Baldwin, 128 P. 449, 53 Colo. 416 (Colo. 1911)
• Decision Date: 03 July 1911
• Parties: ATCHISON, T. & S. F. RY. CO. v. BALDWIN et al.

128 P. 449

53 Colo. 416

ATCHISON, T. & S. F. RY. CO. v. BALDWIN et al.

Supreme Court of Colorado, En Banc.

July 3, 1911

Rehearing Denied Dec. 9, 1912.

Appeal from District Court, City and County of Denver; John I Mullins, Judge.

Action by D. P. Baldwin and others, copartners doing business under the style and firm name of the Wabash Cattle Company, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Appellees as plaintiffs, brought suit against appellant to recover damages in the sum of $1,722, claimed to have been sustained on a shipment of cattle from Holbrook, Ariz., to the city of Denver as the result of the alleged negligence of the defendant company in transporting the cattle between these points, which plaintiffs had delivered to it for that purpose. The negligence charged was to the effect that the defendant company kept the cattle on the cars 36 hours without food or water, by reason of which they were greatly damaged. The cattle were delivered for shipment on the 17th day of August, 1901, and delivered to plaintiffs at Denver 4 days later. This action was commenced July 3, 1903.

The defendant filed an answer, denying the negligence charged and alleged that the shipment was made subject to special contracts, which provided that, in order that any loss or damage might be fully and fairly investigated, there was a stipulation, as a condition precedent to the right to recover damages for loss or injury to the stock during the transportation thereof, that the shippers, or agent in charge of the stock, would give notice in writing of their claim therefor to some officer of the company, or to the nearest station agent, before such stock was removed from the place of destination, or from the place of delivery of the same, and before it was commingled with other stock and that a failure to comply with the terms of this condition should be a complete bar to a recovery for any and all such damage. The answer further alleged that the contracts in question also provided that no suit should be brought against the defendant for the recovery of any damages accruing or arising out of the shipment of the stock, unless such action should be commenced within six months after the loss or damage occurred. It is then charged that the stock was unloaded at the respective points of destination, and by the plaintiffs removed therefrom and intermingled with other stock, without any notice in writing, or at all, upon their part that they claimed any damage for loss or injury to such stock during the transportation thereof.

For replication the plaintiffs denied each and every allegation of new matter set out in the answer, except one, which is not material to any question involved, and admitted that no notice in writing was given any officer of the company, or the station agent at the point where the shipment was delivered. The case was tried to the court without the intervention of a jury, and taken under advisement. Later the court found the issues in favor of the plaintiffs, and rendered judgment in the sum of $1,722, from which the defendant has appealed.

There was testimony on the part of the plaintiffs the purpose of which was to prove that the defendant had been guilty of negligence in transporting the shipment.

The contracts referred to in the answer were introduced in evidence, and contained the following stipulations:

'Eighth. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or any place, or places, where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, * * * before such stock shall have been removed * * * from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. * * *

'Ninth. It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment or of any contract pertaining to the same, or the furnishing of facilities for such shipment, shall be sustained in any court of law or equity unless such suit or action shall be commenced within six months next after the loss or damage shall have occurred. The failure to institute suit within said time shall be deemed conclusive evidence against the validity of such claim, or cause of action, and shall be a complete bar to such suit.'

This contract further provided that free transportation should be furnished the shipper, or his agents, in charge of the stock from the point of shipment to the place of destination and return.

C. L. Truax had charge of, and accompanied, the shipment through to Denver. He testified that he was in the employ of the plaintiffs at the time of the shipment, and had been for a number of years off and on, and superintended the loading. He also testified that at this time he had had about 16 years' experience in handing cattle on railroads. He signed the contracts.

C.

O. Howe, one of the plaintiffs, testified that he was present when the cattle were loaded. He was in charge of the ranch belonging to the partnership, and had shipped between three and five thousand cattle annually from Arizona to the Union Stockyards in Denver for a period of 15 to 18 years.

Truax, when interrogated by counsel for plaintiffs regarding the circumstances under which he signed the contracts, said he signed where the agent told him; that the agent said he had to sign, as the contract was his pass over the road; that he did not read the contracts, nor was he asked to read them. It also appears from his testimony that he had had some experience in railroading as an employé of the S. F. P. as a wrecking foreman, and in the car department.

Over the objection of defendant, Howe was permitted to testify that he handed the claim into the Sante Fé office in Denver after the shipment was delivered, and that negotiations looking towards a settlement were had with the company, extending over a considerable period, and as late as six months prior to the time he was testifying.shipper by contract of shipment.

Henry T. Rogers and Rogers, Ellis & Johnson, all of Denver, for appellant.

John T. Bottom, of Denver (Pierpont Fuller, of Denver, of counsel), for appellees.

GABBERT J.

Truax, who signed the shipping contracts, was in the employ of plaintiffs, and had been for a number of years. He had charge of the shipment, and superintended the loading. Authority to deliver stock to a common carrier for shipment includes all the necessary and usual means of carrying it into effect, so that the agent of the owner intrusted with its shipment, in the absence of notice to the carrier to the contrary, will be presumed to have authority to bind the shipper by a contract of shipment, in so far as such contract is valid. Nelson v. Hudson River R. R. Co., 48 N.Y. 498; Hill v. Boston, H. T. & W. R. Co., 144 Mass. 284, 10 N.E. 836.

The evident purpose of the testimony of Truax with respect to the circumstances under which he signed the shipping contracts was to relieve the plaintiffs from the terms and conditions thereby imposed. It is not charged by any pleading on the part of plaintiffs that the defendant company was guilty of any fraud, duress, or bad faith in obtaining these contracts, or that they were executed by mistake. A defense upon either of these grounds, to be available, must be pleaded by stating the facts upon which it is predicated. Starbird v. Cranston, 24 Colo. 20, 48 P. 652; Arthur v. Gard, 3 Colo.App. 133, 32 P. 343. A mere denial of the execution of the contracts was not sufficient to make an issue on either one of these questions; consequently the testimony referred to was not competent.

But, aside from this conclusion, the testimony of Truax to the effect that he was told by the agent that he had to sign, that the contract was his pass, that he did not read, nor was he asked to read, the contracts, does not establish either mistake, fraud, or duress. To hold that from these circumstances he was induced to sign contracts by fraud or duress, or that from his 16 years' experience in handling cattle on railroads he did not know what he was signing when he signed the contracts, would attribute to him a lack of intelligence wholly at veriance with the intellectual ability which his examination as a witness disclosed he possessed.

In this connection it is also proper to note that one of the plaintiffs was present when the cattle were loaded. He was the manager of the partnership business. For a period of 15 or 18 years he had been engaged in shipping between three and five thousand cattle annually from Arizona to Denver. With this...