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

• Decision Date: 15 July 1914
• Docket Number: Case Number: 3304
• Citation: 42 Okla. 528,1914 OK 341,141 P. 442
• Parties: CHICAGO, R. I. & P. RY. CO. v. BEATTY.
• Court: Oklahoma Supreme Court

1914 OK 341

141 P. 442

42 Okla. 528

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

Case Number: 3304

Supreme Court of Oklahoma

Decided: July 15, 1914

Syllabus

¶0 1. CARRIERS--Failure to Furnish Cars-- Interstate Commerce. An action for damages resulting from the failure of the carrier to furnish cars for the shipment of freight within a reasonable time after the date agreed upon between the shipper and the station agent of the carrier is not prohibited by the act of Congress regulating interstate commerce (Act Feb. 4, 1887, c. 104, 24 St. at L. 379 [U.S. Comp. St. 1901, p. 3154]), and the amendment thereto of June 29, 1906 (Act June 29, 1906, c. 3591, 34 St. at L. 584 [U.S. Comp. St. Supp. 1911, p. 1284]).

2. SAME--Interstate Commerce Act--Operation. The act of Congress regulating interstate commerce supersedes the act of the territorial Legislature on that subject.

3. APPEAL AND ERROR--Ground for Reversal--Instructions-- Issue. It is prejudicial error for the trial court to give an instruction covering an issue not made by the pleadings, where such instruction tends to confuse the issues, and is calculated to mislead the jury.

Error from District Court, Caddo County; Frank M. Bailey, Judge.

Action by W. W. Beatty against the Chicago, Rock Island & Pacific Railway Company. Judgment was for the plaintiff, and defendant brings error. Reversed.

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

A. J. Morris, for defendant in error

GALBRAITH, C.

¶1 This was an action to recover damages charged to have been sustained on account of the failure of the railway company to furnish cars within a reasonable time, as agreed by the terms of an oral contract entered into between the plaintiff and the station agent, for the shipment of cotton seed from Verden, Okla., to Chickasha, Ind. T., and on account of the failure to furnish said cars the seed spoiled, and the loss claimed resulted to the plaintiff. Two causes of action were declared upon. The material part of the first count of the amended petition, upon which the cause was tried, after the formal allegations and the statement that the plaintiff had ready for shipment 50 tons of cotton seed, and had arranged with the defendant's agent for cars to be set at Verden for shipment of same, charges:

"That on the 29th day of November, 1906, plaintiff went to the defendant's depot at Verden and offered said cotton seed for shipment and demanded of the defendant said car or cars of sufficient capacity to transport said cotton seed, and the defendant failed and neglected to furnish the same; that each day thereafter and at various times plaintiff demanded of the defendant said cars, and said defendant negligently failed and refused to furnish the same for an unreasonable length of time, and in fact never did furnish the plaintiff cars in which to ship said cotton seed, although at the same time it was furnishing to other persons cars in which to ship cotton seed and other products from Verden to other points."

¶2 And it proceeds to charge that, by reason of the defendant's delay and failure to furnish said cars, said 50 tons of cotton seed became heated, spoiled, and wholly worthless for any purpose, to the plaintiff's damage in the sum claimed. The second count is in similar form, and is for failure to furnish cars for shipment of 250 additional tons of cotton seed, and charges a similar agreement and failure to furnish cars and the loss and destruction of the seed by reason of such failure, and alleges total damages in the sum of $ 3,300. The answer to this amended petition was a general denial. Upon the issues thus formed the cause was tried to the court and a jury, and judgment rendered for the plaintiff in the sum of $ 856. After the overruling of a motion for a new trial, the defendant perfected an appeal to this court.

¶3 It is first contended that the contract sued upon--and for a breach of which the recovery was had in the trial court--was illegal and void under the law as prescribed in the Interstate Commerce Act of Feb. 4, 1887, and the amendment thereto of June 29, 1906. Section 3 of the original act (24 St. at L. p. 380) reads as follows:

"That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatever. * * *"

¶4 The contention of plaintiff in error, as set out in its brief in regard to this amendment, is as follows:

"Under the federal Commerce Act, supra, every shipper and every class of shippers have the right not only to demand that their goods be transported at a fair and reasonable price, and that they be accorded fair and proper treatment, but that they be carried at the same price and under the same condition accorded to the most favored, and that the treatment, form, or contract, and method of doing business extended to one shall be open to all others, and a common carrier of goods has no right to discriminate or favor one shipper over another in rates or facilities."

¶5 All of which may be admitted to be true, but it does not follow therefrom that the contracts sued upon in the instant case are void or otherwise condemned by the provisions of the statute above quoted. The petition does not charge that the plaintiff was to receive under the contracts made with the station agent any special facilities or any special rate or any special privileges, not open to or granted other shippers at the time and place, or that he was making or was to receive any discrimination over and above other shippers at that point, but rather charges that he was being discriminated against, and was not being furnished the same facilities for shipping products that other persons at Verden were receiving from the defendant at that time. So far as the pleadings show, the contracts in suit were legal and binding. They did not attempt to impose upon the railway company any other or different obligations than those placed upon it as a common carrier by statute. It is charged that the company, through its agent, agreed to furnish cars to the plaintiff for the shipment of his cotton seed within a reasonable time. The petition further charges a breach of each of these contracts on the part of the defendant and the resulting damages to the plaintiff on account thereof. In deciding a case for the breach of a similar contract, this court, Harrison, C., rendering the decision, said:

"The law does not require that a station agent be authorized to contract to furnish a certain kind of car, at a certain hour of a certain day, in violation of the prescribed rules, and in discrimination against other shippers; but it does require that he be authorized to furnish reasonable facilities within reasonable time for carrying on the business of the public, either upon his own authority or upon his demands or notice to the company that such facilities are required. This was all that was required by the shipper in the case at bar. He did not demand of the company to furnish a double-deck car on a certain day in violation of prescribed rules, or in discrimination against other shippers, nor did he seek to bind the company to such a

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