Cook v. Northern Pacific Railway Company

• Decision Date: 20 September 1915
• Citation: 155 N.W. 867,32 N.D. 340
• Court: North Dakota Supreme Court

155 N.W. 867

32 N.D. 340

JOHN D. COOK v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of North Dakota

September 20, 1915

Appeal from District Court, Stutsman County; J. A. Coffey, J.

Action by John D. Cook against the Northern Pacific Railway Company.

From a judgment in defendant's favor, plaintiff appeals.

Reversed and remanded for a new trial.

Judgment reversed, and a new trial ordered.

Knauf & Knauf and S. E. Ellsworth, for appellant.

"Everything that the jury might reasonably infer from the evidence is to be considered as admitted." Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1016, 5 Am. Neg Rep. 454.

"Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void." Comp. Laws 1913, § 5927; Adams Exp. Co. v. Croninger, 226 U.S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 S.Ct. 148; Act of June 29, 1906, 34 Stat. at L. 584, chap. 3591, Comp. Laws 1913 § 8563.

Whether or not such a contract is reasonable is a question for the court to determine, and in each case depends upon the peculiar circumstance disclosed by the evidence. New York C. R. Co. v. Lockwood, 17 Wall. 357, 380, 381, 21 L. ed 627, 640, 641, 10 Am. Neg. Cas. 624; Southern Exp. Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556.

"In an action where there is a plea of a special contract in defense, limiting or conditioning the carrier's liability, the burden is upon the carrier not only to show a valid special contract, but also to allege and prove the facts and circumstances showing the stipulations to be reasonable. Houtz v. Union P. R. Co. 33 Utah 175, 17 L.R.A.(N.S.) 628, 93 P. 439; Texas & P. R. Co. v. Reeves, 90 Tex. 499, 59 Am. St. Rep. 830, 39 S.W. 564; Central Vermont R. Co. v. Soper, 8 C. C. A. 341, 21 U. S. App. 24, 59 F. 888; Adams v. Colorado & S. R. Co. 49 Colo. 475, 36 L.R.A.(N.S.) 412, 113 P. 1010.

A limitation of time within which to bring action may be waived by failure to object to the form of a defective notice, or by any conduct of the carrier calculated to induce, and which has induced, the owner to delay the bringing of suit beyond the time stipulated. 6 Cyc. 509, and cases cited; Gulf, C. & S. F. R. Co. v. Stanley, 89 Tex. 42, 33 S.W. 112.

Watson & Young and E. T. Conmy, for respondent.

The shipment here in question is interstate, and comes under the Carmack amendment to the Hepburn act, and the decisions of the Federal and United States courts are controlling. Chicago, M. & St. P. R. Co. v. Solan, 169 U.S. 133, 42 L. ed. 688, 18 S.Ct. 289; Pennsylvania R. Co. v. Hughes, 191 U.S. 477, 48 L. ed. 268, 24 S.Ct. 132; Hepburn Act of June 29, 1906, 34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8592; Adams Exp. Co. v. Croninger, 226 U.S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 S.Ct. 148; Northern P. R. Co. v. Washington, 222 U.S. 370, 56 L. ed. 237, 32 S.Ct. 160; Southern R. Co. v. Reid, 222 U.S. 424, 56 L. ed. 257, 32 S.Ct. 140; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U.S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 S.Ct. 169, 1 N. C. C. A. 875; Chicago, B. & Q. R. Co. v. Miller, 226 U.S. 513, 57 L. ed. 323, 35 S.Ct. 155; Chicago, R. I. & P. R. Co. v. Cramer, 232 U.S. 490, 58 L. ed. 697, 34 S.Ct. 383; Chicago, St. P. M. & O. R. Co. v. Latta, 226 U.S. 519, 57 L. ed. 328, 33 S.Ct. 155; Missouri, K. & T. R. Co. v. Harriman, 227 U.S. 657, 57 L. ed. 690, 33 S.Ct. 397; Bartles Northern Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576.

The condition in the contract requiring that suit be commenced in two months is valid and enforceable. Adams Exp. Co. v. Croninger, 226 U.S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 S.Ct. 148; Michigan C. R. Co. v. Vreeland, 227 U.S. 59, 57 L. ed. 417, 33 S.Ct. 192, Ann. Cas. 1914C, 176; York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627, 10 Am. Neg. Cas. 624; Southern Exp. Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556; Hart v. Pennsylvania R. Co. 112 U.S. 331, 28 L. ed. 717, 5 S.Ct. 151; Central Vermont R. Co. v. Soper, 1 C. C. A. 341, 59 F. 879; Ginn v. Ogdensburg Transit Co. 29 C. C. A. 521, 57 U.S. App. 403, 85 F. 985; Cox v. Central Vermont R. Co. 170 Mass. 129, 49 N.E. 97; North British & M. Ins. Co. v. Central Vermont R. Co. 9 A.D. 4, 40 N.Y.S. 1113, affirmed in 158 N.Y. 726, 53 N.E. 1128; McCarty v. Gulf, C. & S. F. R. Co. 79 Tex. 33, 15 S.W. 164; Thompson v. Chicago & A. R. Co. 22 Mo.App. 321; 6 Cyc. 508 and cases cited; Missouri, K. & T. R. Co. v. Harriman, 227 U.S. 657, 671-673, 57 L. ed. 690, 697, 698, 33 S.Ct. 397.

Estoppel, to be available, must be pleaded, and this rule has been adopted in this state. Borden v. McNamara, 20 N.D. 225, 127 N.W. 104, Ann. Cas. 1912C, 841; Parliman v. Young, 2 Dak. 184, 4 N.W. 139, 711; 8 Enc. Pl. & Pr. 7; 16 Cyc. "Estoppel," 806-808.

"A waiver of a provision on the back of a shipping receipt, exempting the carrier from liability, unless notice of loss or damage is given within a specified time, is not available to a shipper in an action against the carrier, unless pleaded by the shipper." Frey v. New York C. & H. R. R. Co. 114 A.D. 747, 100 N.Y.S. 225; Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St. 368, 57 N.E. 57; Griffith v. Newell, 69 S.C. 300, 48 S.E. 259; Essex v. Murray, 29 Tex. Civ. App. 368, 68 S.W. 736; R. L. Cox & Co. v. Markham, 39 Tex. Civ. App. 637, 87 S.W. 1163; Fauble v. Davis, 48 Iowa 462; List & Sons Co. v. Chase, 80 Ohio St. 42, 88 N.E. 120, 17 Ann. Cas. 61; Neuberger v. Robbins, 37 Utah 197, 106 P. 933; Thompson v. St. Charles County, 227 Mo. 220, 126 S.W. 1044; McCall Co. v. Segal, Tex. Civ. App. , 126 S.W. 913; Re Warner, 158 Cal. 441, 111 P. 352; Feuchtwanger v. Manitowoc Malting Co. 109 C. C. A. 461, 187 F. 713; Iola Portland Cement Co. v. Ullmann, 159 Mo.App. 235, 140 S.W. 620; Symms-Powers Co. v. Kennedy, 33 S.D. 355, 146 N.W. 570; 9 Cyc. "Contracts" 727; Clegg v. St. Louis & S. F. R. Co. 122 C. C. A. 273, 203 F. 971; Great Northern R. Co. v. O'Connor, 232 U.S. 508, 58 L. ed. 703, 34 S.Ct. 380, 8 N. C. C. A. 53; Riddlesbarger v. Hartford F. Ins. Co. 7 Wall. 386, 19 L. ed. 257; Central Vermont R. Co. v. Soper, 8 C. C. A. 341, 21 U.S. App. 24, 59 F. 879; Ginn v. Ogdensburg Transit Co. 29 C. C. A. 521, 57 U. S. App. 403, 85 F. 985.

Even a forty-day limitation in which to bring action has been held legal and valid. Gulf, C. & S. F. R. Co. v. Trawick, 68 Tex. 314, 2 Am. St. Rep. 494, 4 S.W. 568; Gulf, C. & S. F. R. Co. v. Gatewood, 79 Tex. 89, 10 L.R.A. 419, 14 S.W. 913; Missouri, K. & T. R. Co. v. Harriman, 227 U.S. 672, 57 L. ed. 698, 33 S.Ct. 397.

FISK, C. J. BURKE, J., did not participate, Honorable W. L. NUESSLE, Judge of Sixth Judicial District, sitting in his stead.

OPINION

FISK, C. J.

Plaintiff and appellant seeks to recover damages from defendant railway company upon a special contract entered into on March 9, 1907, for the transportation of certain horses and other property from the Minnesota transfer to McHenry, in this state. He alleges in his complaint that through the negligence of the defendant in handling the car in which such horses were transported, and through unreasonable delay in transporting the car, such horses were greatly injured, which injury resulted in the death of several of the horses, and permanent injuries to the remainder. This action was commenced in April, 1913, but in October, 1908, plaintiff brought an action to recover damages connected with this same shipment, basing his action not on the contract, but upon the defendant's common-law liability. In such former litigation the defense interposed was that the parties had entered into a special contract governing such shipment, and that their rights and liabilities should be measured by such contract. Such defense was sustained, both in the trial court and in this court. Cooke v. Northern P. R. Co., 22 N.D. 266, 133 N.W. 303. For a general statement of the facts we refer to the opinion in that case.

The contract in suit is the ordinary stock contract used by the defendant company, and contains, among other things, a statement that the shipment is made "at the published tariff rate which applies to shipments under a limited liability contract, the same being a reduced rate made upon the terms and conditions following, which are admitted and accepted by the undersigned shipper as just and reasonable, that is to say:" Then follow numerous stipulations, among which are the following:

"3. And it is hereby further agreed that the value of the live stock to be transported under this contract does not exceed the following mentioned sums, to wit: Each horse seventy-five dollars; each mule, seventy-five dollars; each stallion, one hundred dollars; each jack, one hundred dollars; each ox or steer, fifty dollars; each bull, fifty dollars; each cow, thirty dollars; each calf, ten dollars; each pig, ten dollars; each sheep or goat, three dollars; such valuation being that whereon the rate of compensation to said carrier for its services and risks connected with said property is based."

"6. The said shipper further agrees that as a condition precedent to his right to recover any damages for loss or injuries to any of said stock, he will give notice in writing of his claim therefor to some officer or station agent of the said company before said stock has been removed from the place of destination or mingled with other stock.

"7. It is further agreed and provided that no suit or action to recover any damages for loss or injury to any of said stock or for the recovery of any claim by virtue of this contract, shall be sustained by any cou...