Cooke v. Northern Pac. Ry. Co.

• Court: North Dakota Supreme Court
• Citation: Cooke v. Northern Pac. Ry. Co., 133 N.W. 303, 22 N.D. 266 (N.D. 1911)
• Decision Date: 02 May 1911

133 N.W. 303

22 N.D. 266

COOKE v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of North Dakota

May 2, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Affirmed.

BURKE J., disqualified.

OPINION

The petition of the plaintiff for a rehearing having been granted, a reargument of the case was had, and extended briefs were filed

At the beginning of paragraph 3 of the main opinion, the writer hereof made an error in saying, "Because it is not contended that there was any proof of notice given under the terms of this special contract." There is evidence that such notice was given, and counsel for defendant does not dispute the fact. The petition for rehearing was based largely upon this inadvertent misstatement of the evidence. We wish to say, however, that the language of the opinion, with the above-quoted words omitted, expresses the real and paramount thought, and what follows is not changed in the slightest degree by a reversal of that particular statement of fact. The record was being discussed in the light of the pleadings, the evidence, and the motion made. From such discussion, the conclusion followed that "plaintiff charged a tort, proved a contract, and asked judgment," which cannot be permitted, unless, indeed, the rule of pleading is different when a common carrier, and not a private citizen, is being sued.

In the case at bar, the defendant made a lawful contract with plaintiff. That contract in no manner violated the provisions of § 5678, Rev. Codes 1905, with reference to exempting defendant from liability for negligence. Plaintiff must have known that fact. His counsel in argument concedes it; and yet, because the suit is brought against a common carrier, a special privilege is invoked, which would result in violating well-settled rules of pleading, to the utter confusion of that uniform practice so essential in securing justice in the courts of the land.

The discussion of the matter by counsel upon the rehearing, and their complete briefs filed, serve only to amplify and make clear the rule adopted by the court in the first instance. In addition to the cases cited and considered in the main opinion counsel for plaintiff calls attention to the cases of Nicoll v. East Tennessee, V. & G. R. Co. 89 Ga. 260, 15 S.E. 309, and Estes v. Denver & R. G. R. Co. 49 Colo. 378, 113 P. 1005, and cases in that opinion cited.

In Nicoll v. East Tennessee, V. & G. R. Co. supra, there is no discussion of the principles invoked whatsoever. It is simply a per curiam decision, "Judgment reversed."

In the Colorado case (Estes v. Denver & R. G. R. Co.), it must be conceded that language is used fully sustaining plaintiff's contention. Yet, when the pleadings are examined, it will be noticed that, unlike the case at bar, there is found no general denial; while in the answer a special contract was pleaded, and a reply followed, admitting the contracts. A failure to deny the allegations of the complaint was tantamount to admitting them to be true, and evidently reliance was laid wholly upon the defense of a contract. The facts in that case seem also to be different from those in the case at bar. The court, in referring to them, uses this language (49 Colo. 378, 113 P. 1005): "Where, then, as in the present instance, the carrier undertakes by special contract to exempt itself from liability for negligence [the italics are ours], such contract to that extent is a nullity. Consequently the carrier is still liable for negligence as at common law, and necessarily suit may be maintained by the shipper for a breach of the carrier's duties in this respect. In other words, in such circumstances, the carrier is not liable for the violation of the terms of a special contract, but for the violation of a duty imposed by law, which it cannot escape by contract."

In the case at bar, we are not dealing with a contract which undertakes "to exempt itself [the defendant] from liability for negligence," but, upon the contrary, with an agreement, every part of which concededly recognizes the liability for negligence, but, coupled with that, for the consideration of reduced rates given, are found new contractual relations between the parties, every one of which is legal.

In attempting to analyze the apparent conflict between the cases, it seems to us there has been a failure to recognize certain fundamental principles always found existing in cases where dealings are had with common carriers. Counsel for defendant, on rehearing, have pointed out so clearly these relations that we quote directly from their brief (page 6) "It seems that this case is made intricate and puzzling only because of a failure to carefully discriminate between the common-law liability, and the contractual liability, and the use of general expressions, which, it is claimed, cover both situations. If we had a case where the statutory and contractual liability was the same as the common-law liability, then it is possible, and it would not be unreasonable, to establish a rule that all of the matters in controversy could be determined in one action; for there would then be no conflict as between the common-law liability and the contractual liability, and the modifications contained within the contract would not change the nature of the liability, but would merely go to incidents connected with the same Kind of liability that was present under both the common-law liability and the contractual liability; and this is where counsel has been misled, and where some of the decisions do not discriminate when they use the term 'special contract.' In many of the cases, the special...