Cooke v. N. Pac. Ry. Co.

• Decision Date: 22 June 1911
• Citation: 133 N.W. 303,22 N.D. 266
• Parties: COOKE v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

22 N.D. 266

133 N.W. 303

COOKE

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

May 2, 1911.

On Rehearing, June 22, 1911.

Syllabus by the Court.

The character of an action as brought must be determined by the complaint.

A clause in a special contract with a common carrier, which provides in substance that when property is injured, as a condition precedent to a right of action, plaintiff must give notice in writing of any claim for damages or injury to the officer or station agent, before said property is removed from the place of destination, is not prohibited by the provisions of law limiting the right of such common carrier to exonerate itself from certain liabilities for negligence, fraud, and willful wrongs.

Plaintiff, having elected to bring an action ex delicto, must stand or fall by the allegations as made. The power to amend is limited. A new and distinct cause of action cannot, at the time of the trial, without consent, be thrust into a complaint by amendment.

Certain cases considered, and regarded as not an authority against, but rather supporting, the procedure adopted by the parties in this action.

Appeal from District Court, Stutsman County; Burke, Judge.

Action by John D. Cooke against the Northern Pacific Railway Company. From an order denying a new trial after direction of verdict for defendant, plaintiff appeals. Affirmed.John Knauf and S. E. Ellsworth, for appellant. Ball, Watson, Young & Lawrence, for respondent.

POLLOCK, Special Judge.

This is an appeal from an order denying a motion for a new trial. Certain irregularities with reference to the admission of testimony, as well as errors of law occurring at the trial, are claimed, all of which were duly excepted to. There are 22 specifications of error, most of them with reference to the introduction of evidence. In order to properly consider these alleged errors, it will be necessary to analyze the issues as presented by the pleadings.

Among other things, the plaintiff alleges: That on March 7, 1907, he delivered, in good condition, to the Chicago, Rock Island & Pacific Railway Company, at Reynolds, Ill., eight horses for transportation to McHenry, N. D. Said railroad company delivered said horses, still in good condition, to the Burlington, Cedar Rapids & Northern Railway Company, a connecting common carrier. Later, and on March 9, 1907, the last-named company delivered said horses, in good condition, to the defendant company as a common carrier at the Minnesota Transfer, near St. Paul, Minn., for final transportation to McHenry, N. D. That defendant received said horses for adequate reward agreed to be paid. That while said horses were in the possession of the said defendant it operated the train of cars in which said horses were being transported in a manner that was grossly careless and negligent, causing said car to receive violent shocks and jolts, which threw down, maimed, injured, and bruised all of said horses, and caused the death of two of them. Plaintiff further alleges carelessness and negligence in providing proper facilities for unloading said horses, for their exercise, refreshment, feeding, and watering, and claims that on March 15, 1907 (the time the horses were delivered to him by defendant), they were bruised, disabled, in very poor order, and were greatly reduced in value; and further alleges that, “by reason of the careless, negligent, and cruel treatment of said horses by defendant, and its failure to use ordinary care to provide for the safety and welfare of the same while in its possession for transportation as aforesaid, the plaintiff has sustained the entire loss of two of said horses, and six others have been injured and reduced in value, to plaintiff's aggregate loss and damage in the sum of $1,000, and therefore demands judgment for that amount.”

Defendant in his answer denies each and every allegation in said complaint contained, except so much as was thereinafter specifically admitted. After admitting the corporate capacity, it admits and alleges that, on or about the 9th day of March, 1907, a written contract was made and entered into between plaintiff and defendant for the delivery and shipment of certain goods and stock by the defendant company from the Minnesota Transfer to McHenry, N. D.; and further alleges that said contract of shipment contained the following provisions and conditions precedent, to wit: “The said shipper further agrees that as a condition precedent to a right to recover any damages for loss or injury 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.” And further alleges that no such notice in writing of any claim for damages or injury was served on the defendant at any time prior to the commencement of said action, and demands that the plaintiff take nothing by this suit.

At no time throughout the trial were any amendments asked or made to the pleadings as above set forth. The important error complained of is the granting of defendant's motion for an instructed verdict, after both parties had rested. The motion was made as follows: “The defendant moves to strike out all of the testimony of the plaintiff with reference to any duty, liability, undertaking, or implied contract, and to strike out all of the testimony with regard to any duty or obligation upon the part of the defendant, except the written contracts introduced upon the cross-examination of the plaintiff's witness, viz., Exhibits A1 and A2. In connection with the motion to strike out this testimony, the defendant moves the court to direct a verdict in favor of the defendant and against the plaintiff for a dismissal of the action, on the ground of failure of proof and total absence of proof to support the allegations of the complaint, and upon the ground that the complaint of the plaintiff charges a delivery of the stock in question, and for which the plaintiff seeks to recover damages, to the Burlington, Cedar Rapids & Northern Railway Company, to the Chicago, Rock Island & Pacific Railway Company, being a delivery by one company to the other as a connecting carrier. Said complaint also charges a delivery by the Chicago, Rock Island & Pacific Railway Company to the Northern Pacific Railway Company, as a connecting carrier, and in no other manner whatsoever. That all of the allegations of the complaint are based upon a duty and liability of the defendant company as connecting carrier, and the plaintiff asks damages for a breach of duty under the common-law liability, or for a tort or wrong, and there now appears in evidence an express contract, entered into between the plaintiff and defendant for a special consideration, and upon terms and conditions agreed to by the parties, and there is therefore a total failure of proof to sustain the allegations of the complaint.” This same motion was made at the close of plaintiff's case, and was overruled pro forma, and thereafter, when both parties had rested, was renewed for the same reasons, at which time the court allowed the motion, and instructed the jury to find for the defendant, which they did by a proper verdict duly entered.

[1] 1. The character of this action as brought must be determined by the complaint. Plaintiff's allegations state a cause of action ex delicto, and charge a violation of the common-law duties of a carrier. Some dispute arises between counsel as to whether the violation of this duty was charged as the result of ordinary or of gross negligence. Our statute (section 5678, Revised Codes 1905), with reference to exoneration of common carriers by agreement, being limited, at the time the facts above stated occurred (March 7 to March 15, 1907), contained the words, “gross negligence.” The amendment of that section by the Laws of 1907, taking out the word “gross,” did not take effect until July, 1907. A careful examination of the complaint leads us to the conclusion that gross negligence was not charged. However, we do not deem a discussion of this matter as important, in view of another situation which presents itself upon the record.

[2] 2. Section 5678 of the Revised Codes of 1905 reads as follows: “A common carrier cannot be exonerated by any agreement made in anticipation thereof from liability for the gross negligence, fraud or willful wrong of himself or his servants.” It will help to clarify the dispute growing out of the pleadings in this case to first determine whether the clause in the contract with reference to the condition precedent to the right of recovery, namely, that of giving notice in writing of any claim for damages or injury to the officer or station agent of said company before said stock has been removed from the place of destination or mingled with other stock, is prohibited by the law of the state of Minnesota, where the contract was made, or by section 5678, above, and whether such a clause in a special contract with a common carrier, made for a valuable consideration, can be supported as between the parties. We think the principle involved in this question has been settled by this court in the case of Hanson v. Great Northern Ry. Co., 18 N. D. 324, 121 N. W. 78, 138 Am. St. Rep. 768. Judge Fisk discusses the proposition, beginning on page 328 of 18 N. D., on page 78 of 121 N. W. (138 Am. St. Rep. 768), wherein he had under consideration a contract with a common carrier entered into in the state of Minnesota. After reviewing the authorities at length, he says (at the bottom of page 331 of 18 N. D., page 80 of 121 N. W. ): “The contract in question, in so far as it does not attempt to limit defendant's liability for loss or damage occasioned by gross negligence, fraud, or willful wrong of itself or its servants, is not contrary to the public policy of this state as expressed in the provisions of the Code above cited; but to the extent, if...