* Atchison, T. & S. F. Ry. Co. v. Robinson

• Decision Date: 23 October 1912
• Docket Number: Case Number: 2015
• Citation: * Atchison, T. & S. F. Ry. Co. v. Robinson, 1912 OK 671, 129 P. 20, 36 Okla. 435 (Okla. 1912)
• Parties: * ATCHISON, T. & S. F. RY. CO. v. ROBINSON.
• Court: Oklahoma Supreme Court

1912 OK 671

129 P. 20

36 Okla. 435

* ATCHISON, T. & S. F. RY. CO. v. ROBINSON.

Case Number: 2015

Supreme Court of Oklahoma

Decided: October 23, 1912

Syllabus

¶0 1. PLEADING- -Judgment on Pleadings--Carriage of Live Stock--Actions for Injuries. Plaintiff sued for damages done to a shipment of race horses, alleging shipment to have been made under a definite verbal contract, charging gross negligence and praying for full amount of damages. Defendant answered by general denial and by pleading a written contract which limited its liability to the value therein named, and by the further allegation that the written contract was the only one made between the parties. Plaintiff's reply was in effect an unverified general denial of new matter. Held, the overruling of defendant's motion for judgment on the pleadings because of the unverified reply was not error. The issues whether the shipment was made under a verbal agreement and whether defendant was guilty of gross negligence were joined by defendant's general denial, and plaintiff had the right to have such issues determined and was entitled to any evidence relevant, competent, and material to a determination of same, regardless of the written contract, and regardless of the fact that a determination of such issues had the effect of rendering the provisions of the written contract not binding.

2. CARRIERS -- Carriage of Live Stock -- Notice of Injury. Where a shipment of live stock consists of race horses shipped for the purpose of being entered in certain races, and the carrier has notice of the class to which the stock belongs and the purpose for which it is shipped, and the agent of the carrier at the destination of the shipment is notified that some of the stock had been injured, and such agent goes to the stables where such injured stock is kept and sees same and has ample opportunities to ascertain the extent of the injuries, held, this is a substantial compliance with the provisions of the shipping contract requiring notice of injury to be given before the stock is removed or slaughtered or mingled with other stock.

3. SAME-- Contracts. Where a shipment of live stock is made under a verbal contract, and where every move made, every step taken toward a shipment, up to and including a complete consignment and surrender of control by the shipper, the starting in transit of the shipment and the assumption of liability for negligence by the carrier, is all under and pursuant to such parol agreement, and after this a printed shipping contract is presented to the shipper to sign, he has the right to assume that it embodies the terms of the verbal agreement, and the carrier will not be permitted to escape liabilities accruing to the shipper under the verbal agreement by reason of certain provisions in the written contract at variance with the parol contract, unless the shipper's attention has been called to such provisions and fair opportunity given him to assent to same.

Cottingham & Bledsoe, Charles H. Woods, and George M. Green, for plaintiff in error.

H. H. Smith and Rittenhouse & Rittenhouse, for defendant in error.

HARRISON, C.

¶1 Numerous errors are assigned by appellant, but all are disposed of under the two general propositions, viz.: First, whether the railway company was entitled to judgment on the pleadings, having set up a written contract the execution of which was not denied under oath; second, were the provisions in the written contract valid and were they binding on the shipper? As to the first proposition, the plaintiff did not rely on a written contract of any character, nor did he sue for violations of the terms of a written contract, but alleged the shipment to have been made under a definite verbal contract in which no reference was made to the freight rate or limitation of liabilities, and sought recovery on the grounds of gross negligence of the company in the manner of handling the shipment. This presented the material issues to be tried, a determination of which in favor of plaintiff would entitle him to recover and which were joined by defendant in its general denial of the allegations in the petition. The plaintiff therefore was entitled to have these issues tried and determined, and in the trial of same was entitled to all the competent, material evidence at his command in support of his view of such issues. Therefore the setting up of a written contract by defendant did not preclude the plaintiff from his right to have such issues determined, nor entitle defendant to judgment on the pleadings, notwithstanding plaintiff had failed to deny the execution of the contract under oath. If plaintiff had stated a cause of action, which in our opinion was done, he had a right to have same determined upon the theory he had chosen--upon the grounds of his own choice. And, not relying on a written contract, not suing on a written contract, but claiming the shipment to have been made under a verbal agreement, and relying for recovery on the carrier's common-law liability for negligence, he should not be required to abandon his chosen grounds and to try his case upon a different theory by the setting up of a written contract, unless such contract constituted a prima facie defense to his action. Whether it did or not depended upon the question that it was the only contract, which question was one of fact and was completely answered by a determination of the issues tendered in the petition, "that the shipment was made under a verbal contract." Hence, the decisive issues tendered by both the petition and the written contract being disposed of by a determination of the issues presented by the. petition, it is immaterial whether the execution of the written contract be denied under oath or not, or whether or not plaintiff's reply was verified. It was held by this court in Flesher v. Callahan, 32 Okla. 283, 122 P. 489, that section 5648, Comp. Laws 1909, "providing that allegations of the execution of written instruments and indorsements thereon shall be taken as true unless the denial thereof be verified by affidavit, requires the verification of the denial of the execution only." The execution of the instrument in question here was not in issue. Therefore it was not error to overrule defendant's motion for judgment on the pleadings. This case is clearly distinguishable from St. L. & S. F. Ry. Co. v. Cake, 25 Okla. 227, 105 P. 322, and St. L. & S. F. R. Co. v. Phillips, 17 Okla. 264, 87 P. 470. In those cases a wholly different fundamental principle of pleading was involved. In each of those cases the plaintiff sued for a violation of a written contract and relied on the contract for recovery, and in each case the contract relied upon showed that plaintiff had not complied with the conditions precedent to recovery, and that, in the absence of a verified denial or plea of waiver of such conditions, plaintiff was not entitled to recover. The case at bar rests on a different principle of pleading for the reasons herein stated. The same question of pleading was decided in the case of C., R. I. & P. Ry. Co. v. Spears, 31 Okla. 469, 122 P. 228, wherein this court, speaking through Justice Williams, says:

"The defendants having pleaded the contracts, and the same being admitted because no reply was filed, still they were not entitled to have judgment rendered in their favor upon the pleadings, because of the issue joined by the general issue as to the death of the four head of cattle and the value thereof."

¶2 In the second proposition two material provisions of the written contract are involved, viz., the provision that notice of the damage be given by the shipper to the carrier within a prescribed time after the damage is discovered, and the provision which limits the carrier's liability to the valuation placed on the stock in the contract. The contract provided that written notice of any damage sustained by the stock should be given to the company before the stock should be slaughtered or intermingled with other stock, and the further provision that the company should not be liable in any amount in excess of the values printed in the contract, which are as follows:

"Each horse or pony (gelding,

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