Chi., R. I. & P. Ry. Co. v. Harrington
| Decision Date | 22 September 1914 |
| Docket Number | Case Number: 3123 |
| Citation | 1914 OK 428,44 Okla. 41,143 P. 325 |
| Parties | CHICAGO, R. I. & P. RY. CO. et al. v. HARRINGTON et al. |
| Court | Oklahoma Supreme Court |
¶0 1. ELECTION OF REMEDIES--Action on Contract--Action ex Delicto. In respect to a neglected duty imposed by law, by reason of a relation of the parties created by contract, the injured person may elect to sue upon the contract, or treat the wrong as a tort and bring an action ex delicto.
2. PLEADING--Petition--Exhibit. In an action for alleged negligent injuries by a common carrier to live stock in transit, a copy of the bill of lading or shipper's contract is not required, by section 3996, St. Okla. 1893 (section 4769, Rev. Laws 1910), to be attached to the petition, although the petition does not allege any reason for failure to attach same.
3. COMMERCE--Interstate Shipments--Federal Statute. Section 9, art. 23 (section 358, Williams' Ann. Ed.), Constitution of Oklahoma, and all state laws which would otherwise affect interstate shipments and contracts pertaining thereto, are superseded and excluded by the federal laws in this regard. U.S. Comp. St. Supp. 1911, p. 1284.
4. CARRIERS--Shipment Contract--Limitation of Liability. In respect to intrastate shipments and contracts, any provision, express or implied, "stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any claim, demand, or liability, shall be null and void," under section 9, art. 23 (section 358, Williams' Ann. Ed.), Constitution of Oklahoma.
5. SAME--Burden of Proof. Where a defendant carrier relies on a general denial and the alleged failure of the plaintiff suing for damages on account of injuries to live stock in transit to give notice of such injuries in accord with a contract of shipment, which appears upon its face and from defendant's own allegations to be an intrastate contract for an intrastate shipment in no wise related to or connected with any interstate shipment or contract, and which makes such notice in terms a condition precedent to plaintiff's right of action, the execution of which contract is denied by plaintiff, such requirement of notice is null and void under section 9, art. 23 (section 358, Williams' Ann. Ed.), Constitution of Oklahoma, notwithstanding plaintiff alleges in his petition and makes prima facie oral proof of a through shipment of the live stock from a place in another state, under another contract not in evidence, to the place of destination under said alleged intrastate contract; this being an affirmative defense, and the burden of allegation and proof of same being upon the defendant.
6. SAME--Connecting Carriers--Liability--Presumption. In the absence of any arrangement constituting the carriers partners or joint, or joint and several, undertakers, each carrier (except the initial carrier in an interstate shipment under the Carmack Amendment [Act. June 29, 1906, c. 3591, section 7, pars. 11, 12, 34 St. at L. 593 (U. S. Comp. St. Supp. 1911, p. 1307)]) is liable only for loss or injury occurring on its own line; and there is no presumption of such injury on the line of an intermediate one of a series of connecting carriers from the mere fact of such carriage.
7. SAME--Injury to Shipment--Liability--Presumption. The Carmack Amendment (Act June 29, 1906, c. 3591, section 7, pars. 11, 12, 34 St. at L. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the interstate commerce law (Act Feb. 4, 1887, c. 104, section 20, 24 St. at L. 386 [U. S. Comp. St. 1901, p. 3169]), imposing liability on an initial carrier for loss, damage, or injury to property occurring anywhere on the through route, did not abrogate the rule of evidence that property received in good order by the initial carrier is presumed to have been received in like good order by the succeeding carrier, and that final delivery in bad order raises a rebuttable presumption that the injury occurred on the delivering carrier's line.
C. O. Blake, H. B. Low, R. J. Roberts, and W. H. Moore, for plaintiff in error Chicago, R. I. & P. Ry. Co. W. F. Evans, R. A. Kleinschmidt, and Fred E. Suits, for plaintiff in error St. Louis & S. F. R. Co. Mounts & Davis and Gray & McVay, for defendants in error.
¶1 Plaintiffs in error will be designated as defendants and defendants in error as plaintiffs, in accord with their respective titles in the trial court. Plaintiffs, as owners and shippers, sued for $ 782, and recovered judgment for $ 595, as damages resulting from injuries suffered by 51 mules, in transit, shipped by them, in two cars, from Hico and Dublin, Tex (about three-fourths of the mules being loaded at Hico, and the remaining one-fourth, or half car, being loaded at Dublin), to themselves at Frederick, Okla., as their final destination. The petition, so far as pertinent to this decision, reads as follows:
"That on the 19th day of August, 1909, the Texas Central Railroad Company for a reasonable consideration to it paid by the plaintiffs, accepted and received from the plaintiffs as a common carrier for hire and agreed and contracted to safely carry and deliver to the end of its route and there deliver to a connecting carrier to be by it carried and transported to Frederick, Okla., fifty-one (51) head of mules, in two (2) car load lots, said mules being the property of the plaintiffs herein, and of the value of seven thousand three hundred eleven and 55-100 dollars ($ 7,311.55), and on the same day--that is on the 19th day of August, 1909--according to the contract and agreement aforesaid, the aforesaid Texas Central Railroad Company delivered the aforesaid mules of the value aforesaid in two car-load lots to one of the defendants, the St. Louis & San Francisco Railroad Company, a connecting carrier, which accepted and received the said mules as a common connecting carrier of said Texas Central Railroad Company, the defendant, the St. Louis & San Francisco Railroad Company agreeing to safely carry and safely convey as a common carrier for hire the aforesaid mules, within a reasonable time, to Frederick, Okla., and there deliver the same to the plaintiffs herein; and the defendant the said St. Louis & San Francisco Railroad Company carried and conveyed the aforesaid mules to Ft. Worth, Tex., and there delivered the same to the defendant the Chicago, Rock Island & Pacific Railway Company, a railroad belonging to the same railroad system as the defendant the St. Louis & San Francisco Railroad Company, which accepted and received the said mules as a common carrier for hire, and a connecting carrier of the Texas Central Railroad Company, agreeing to safely carry and safely convey as a common carrier for hire the aforesaid mules within a reasonable time to Frederick, Okla., and there deliver the same to the plaintiffs herein; and the defendant the Chicago, Rock Island & Pacific Railway Company carried and conveyed the aforesaid mules to Lawton, Okla., and there delivered the same to the defendant the St. Louis & San Francisco Railroad Company, which accepted and received the said mules as a common carrier for hire, and a connecting carrier of the Texas Central Railroad Company, agreeing to safely carry and safely convey as a common carrier for hire the aforesaid mules within a reasonable time to Frederick, Okla., and there deliver the same to the plaintiffs herein."
¶2 The defendants filed separate answers, and, so far as pertinent to this decision, each answer consists of a general denial, and, in case of the St. Louis & San Francisco Railroad Company, of a denial of the plaintiffs' right of recovery because, according to its affirmative allegations, on August 22, 1909, plaintiffs, by and through their duly authorized agent, E. A. Fields, received a bill of lading from, and made and entered into a written contract with, this said defendant, whereby said mules were to be transported from Lawton, Okla., to Frederick, Okla., which contract contains a condition precedent to the rights plaintiffs are asserting in this action, with which they wholly failed to comply, reading as follows:
"As a condition precedent to recovery of damages for any death, loss, injury, or delay of the live stock, the shipper shall give notice in writing of his claim to some general officer of the company, or the nearest station agent, or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be promptly and fully investigated, and a failure to comply with this condition shall be a bar to the recovery of any damages for such death, loss, or injury or delay."
¶3 Plaintiffs replied to the answer of this last-named defendant by a general denial, a denial of the agency and of the authority of Fields, and by alleging a waiver of this defendant's right to notice in writing under said Fields' contract of August 22, 1909. Upon the issues thus formed the case was tried, with the result already stated. A reversal is sought upon the following grounds: First, that the court erred in overruling defendants' motion to require plaintiffs to make their petition more definite and certain by setting out a copy of the contract which they allege as shown in the foregoing quotation from their petition. Second, that the court erred in instructing that plaintiffs were not bound by the contract of August 22, 1909, unless Fields was their agent for the purpose of signing or was authorized to sign the same, and that the burden was upon the defendant affected to show such agency or authority. Third, that the court erred in refusing to instruct verdict for the Chicago, Rock Island & Pacific Ry. Co. and in submitting the question of its liability to the jury. In respect to neglected duty imposed by law, by reason of a relation of parties created by contract, the injured person may elect to sue upon the contract, or treat the wrong as a tort...
To continue reading
Request your trial