Chicago, R.I. & P. Ry. Co. v. Gray

• Decision Date: 17 October 1916
• Docket Number: 7826.
• Citation: 165 P. 157,65 Okla. 181,1916 OK 891
• Parties: CHICAGO, R.I. & P. RY. CO. v. GRAY ET AL.
• Court: Oklahoma Supreme Court

165 P. 157

65 Okla. 181, 1916 OK 891

CHICAGO, R.I. & P. RY. CO. v. GRAY ET AL.

No. 7826.

Supreme Court of Oklahoma

October 17, 1916

Rehearing Denied May 22, 1917.

Syllabus by the Court.

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 a day after 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.

The provision of said contract requiring notice is a condition precedent to the maintenance of an action, and must be substantially complied with by the shipper before he can maintain a cause of action against the carrier, and the carrier cannot waive the terms of the contract nor ignore those terms applicable to the conduct of the shipper, nor can the shipper hold the carrier to a different responsibility from that fixed by the contract; for a different view would antagonize the policy of the act and open the door to the very abuses which the act was aimed to prevent.

Commissioners' Opinion, Division, No. 3. Error from County Court, Kingfisher County; R. F. Shutler, Judge.

Action by L. M. Gray and another against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed.

K. W Shartel, of Oklahoma City, C. O. Blake, R. J. Roberts, and W H. Moore, all of El Reno, and F. L. Boynton, of Kingfisher for plaintiff in error.

W. L Moore, of Enid, for defendants in error.

HOOKER C.

The defendants in error commenced this action on the 13th day of January, 1914, against the plaintiff in error to recover the sum of $195 damages alleged to have been suffered by them on account of the delay in the shipment of some mules from Dover, Okl., to North Ft. Worth, Tex.; and it is alleged in the bill of particulars filed in this action that on the 10th day of January, 1913, for a reasonable compensation paid to the plaintiff in error, the plaintiff in error agreed to transport from Dover, Okl., to North Ft. Worth, Tex., and there deliver to the defendants in error within a reasonable time after the receipt thereof 26 head of mules, and that 36 hours was then and is now the usual and ordinary time required for the transportation of mules as contemplated by this contract; that the plaintiff in error failed to transport said mules within that time, but, upon the contrary, unreasonably and negligently delayed the delivery of said mules until the 14th day of January, 1913, more than 72 hours after the time when said mules should have been delivered at said destination in the usual and customary course of transportation as aforesaid, and on account thereof defendants in error were damaged as alleged in the petition. It is asserted by the plaintiff in error that the defendants in error are not entitled to recover here, because the shipment in question was made in accordance with a live stock contract entered into between the company and them on the day of shipment, by the terms of which it was provided as follows:

"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."

And it is further asserted that under section 15 of said contract:

"That no suit or action against the first party for the recovery of any claim by virtue of this contract shall be sustainable in this court of law or equity, unless such suit or action be commenced within six months next after the cause of action shall occur; and should any suit or action be commenced against the first party after the expiration of six

months, the lapse of time shall be constituted conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding."

It is admitted by the defendants in error that the only notice given by them to the plaintiff in error was mailed to the general claim agent of the company about the 24th day of January, 1913. The shipment arrived at North Ft. Worth, Tex., on January 14, 1913. This was an interstate shipment, and the rights of the parties under the contract must be construed with reference to the laws applicable thereto. It is the contention of the plaintiff in error that on account of the failure of the defendants in error to give the notice provided by this contract this suit cannot be maintained, while the defendants in error assert that on account of the company refusing to pay this claim when presented upon grounds other than the failure of the defendants in error to file the same within the time given by the contract this constitutes a waiver of the provisions of the contract, and that the company was not now entitled to rely thereon, so as to avoid liability accruing to the defendants in error by virtue of the acts complained of. This contract involved here was made under and pursuant to the Carmack Amendment to the Hepburn Act (Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [Comp. St. 1916, §§ 8604a, 8604aa]), and this contract has been held by this court, and by the United States Supreme Court, to be supported by a valuable consideration, and the provisions thereof reasonable and binding upon the parties.

This court, in St. L. & S. F. R. R. Co. v. Wynn, 153 P. 1156, said:

"This action being based upon a contract of interstate shipment, section 9, art. 23, of the Constitution, which provides, 'Any provision of any contract or agreement 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,' is without force, being abrogated under the Carmack Amendment of June 29, 1906 (34 Stat. 593, c. 3591,§ 7, pars. 11 and 12 [U. S. Comp. Stat. 1913, § 8592]).

In St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl 302, 135 P. 406, it is held: 'Under the federal law, which is controlling upon the court in determining questions of liability properly arising out of interstate shipments, a provision in a live stock contract or bill of lading to the effect that, as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by the contract, the shipper will give notice in writing of the

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