Henry v. Chicago, M. & P. S. Ry. Co.

• Decision Date: 05 April 1915
• Docket Number: 12263.
• Citation: 147 P. 425,84 Wash. 633
• Parties: HENRY v. CHICAGO, M. & P. S. RY. CO.
• Court: Washington Supreme Court

147 P. 425

84 Wash. 633

HENRY v. CHICAGO, M. & P. S. RY. CO.

No. 12263.

Supreme Court of Washington

April 5, 1915

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by James Henry against the Chicago, Milwaukee & Puget Sound Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Ryan &amp Desmond, of Seattle, for appellant.

Geo. W Korte, of Seattle, for respondent.

PARKER J.

The plaintiff commenced this action in the superior court for King county seeking recovery of damages which he claims resulted from the negligence of the defendant in handing and caring for four shipments of live stock for him, materially impairing their value. The cause proceeded to trial before the court and a jury, when at the close of the evidence introduced in behalf of the plaintiff counsel for the defendant moved for judgment upon the ground, among others, that there had been no evidence introduced showing that the plaintiff had presented to the defendant in writing his claim of alleged loss, as required by the stipulations of the written contracts for the shipments. The court granted the motion upon this ground, and rendered judgment of dismissal accordingly. From this disposition of the cause the plaintiff has appealed.

Appellant is engaged in the wholesale meat and butcher business at Seattle. He buys live stock throughout the Northwestern states, shipping the same to his plant at Seattle. Three of the shipments here involved were from points in Montana to Seattle, in this state. One was from Castleton, in this state, to Seattle. So three of them were interstate shipments, and one was an intrastate shipment. Appellant pleads four causes of action, claiming damages in connection with each shipment separately. He does not in his complaint make any reference to any conditions contained in written contracts of shipment, proceeding in his complaint, evidently, upon the theory that there were no contracts of shipment other than such as would be implied from the mere fact of the shipments being made. In its answer respondent denies the negligence charged against it, and also the alleged damage resulting to appellant, and as an affirmative defense alleges the entering into written contracts for each of the shipments, each of which contracts contain, among other stipulations, the following:

'No claim for loss, injury, or damage to said live stock, nor for delay or decline in the market, nor for injury to the owner or person in charge thereof, shall be valid unless presented to the company in writing within thirty days after the same shall have occurred'

--and further alleges that none of appellant's claims for damage were presented in writing in accordance with the terms of this stipulation of the contracts. Appellant replied to this affirmative defense by a general denial only. This general denial was apparently made upon the theory that the stipulation in the contracts as to presentation of claims for damage is void under the law of this state, and therefore has no lawful existence as a part of the contracts, rather than that such stipulation was not, in fact, embodied in the contracts, or that the contracts were not in writing. This theory seems apparent from subsequent events occurring during the trial. Upon cross-examination of appellant's witnesses who had signed each of these written contracts for him, and as a part of their cross-examination, each written contract was introduced in evidence by counsel for respondent over the objection of counsel for appellant. This objection was made to the introduction of each written contract upon the ground, in substance, that the stipulation contained therein requiring claims of damage to be presented to respondent in writing within 30 days after the same shall have occurred is void under the law of this state. The written contracts were offered in evidence only for the purpose of showing this stipulation. Other stipulations in the contract are of no consequence here.

One of the shipments originated upon the line of the Oregon Short Line Railroad Company in Montana, and was transferred to respondent's line at Butte, Mont. The original contract entered into between the Oregon Short Line Railroad Company and the appellant contained a similar stipulation to that in the other contracts as to making claim of damage, which provision, however, did not require such claim to be made in writing. This was the contract pleaded in respondent's affirmative defense to appellant's third cause of action. Upon the transfer of that shipment to respondent's line at Butte a new contract was entered into between respondent and appellant in exactly the same form, containing the same stipulation as to presentation of claim of damage as in the other contracts of shipment entered into between respondent and appellant. This contract between respondent and appellant relating to the shipment involved in the appellant's third cause of action was introduced upon cross-examination of appellant's witnesses who had signed the same for him, as all the other contracts were, and without any objection thereto other than that made to the introduction of the other contracts. This being true, we will treat the affirmative defense to appellant's third cause of action as amended to conform to this proof. Some contention is made by counsel for appellant in an attempt to confine respondent's defense to the third cause of action to the original contract of shipment entered into with the Oregon Short Line Railroad Company in order to avoid the duty so far as that shipment is concerned of presenting any claim of damage in writing. This contention, however, we think is without merit in view of the facts we have noticed. We therefore proceed to a discussion of the case in the light of the fact that all four contracts entered into between appellant and respondent are exactly alike. Other facts will be noticed as may become necessary in our discussion of the several contentions made by counsel.

Counsel for appellant contend that the trial court erred in holding that the stipulation in the shipping contracts rendering claims of damage invalid as against respondent unless presented in writing within 30 days after the same shall have occurred is of binding force and effect upon him. It is insisted that this stipulation of the contracts is void as being in contravention of the public policy of this state, and therefore not enforceable in our courts under the provisions of our public service commission law reading as follows:

'That no contract, receipt, rule, or regulation shall exempt any corporation engaged in transporting live stock by railway from liability of a common carrier, or carrier of live stock, which would exist had no contract, receipt, rule, or regulation been made or entered into.' Rem. & Bal. Code, § 8648.

In support of this contention, counsel principally rely upon our decision in Carstens Packing Co. v. So. P. Co., 58 Wash. 239, 108 P. 613, 27 L. R. A. (N. S.) 975, holding that, in the light of public policy as declared by this statute, a common carrier cannot by contract exempt itself from liability for loss or injury caused by its own negligence. It is insisted that, while that was a stipulation attempting to specifically exempt the carrier from liability for loss caused by its own negligence, the stipulation here involved no less contravenes the public policy declared by our statute, in that it equally in terms limits the liability of respondent as a common carrier, although differing in terms as to the subject-matter of limited liability. This court has not had occasion to consider the validity of a stipulation in a contract of this exact nature in the light of our statute above quoted. We have, however, in the case of Carstens Packing Co. v. Northern Pacific Railway Co., 64 Wash. 256, 116 P. 625, had occasion to consider the validity of a stipulation in a shipping contract by which the shipper and the railway company agreed at the time of making the shipment upon the value of each hog and sheep shipped. Such stipulation was there held to be binding upon the shipper as fixing the measure of his damage caused by loss of some of the hogs and sheep while in the hands of the railway company during the shipment, regardless of their real value and the actual damage resulting to the shipper from the loss. In that case the statute above quoted was held not to curtail the power of a carrier to so contract, and in so holding Justice Mount, speaking for the court, said:

'This statute means that the common-law liability cannot be avoided by contract. It is the duty of the carrier to safely transport the goods, and, in case of loss from negligence or otherwise, the carrier is liable for their value, which duty may not be avoided. But the statute does not say, and we think does not mean to say, that the parties may not agree upon the value of the shipment before it is made. It simply means that the duty of the carrier to safely carry cannot be avoided by contract, and this is the public policy which the statute sought to declare. If the property is lost or injured, the carrier is liable for the injury or value of the property. But the parties are not, and were not at common law, prohibited from agreeing upon value, either before or after injury or loss has occurred.'

Now since a stipulation of that nature may be lawful made in a shipping contract, which may in a measure limit a shipper's recovery to an amount less than his actual damage to the property shipped, how can it other than logically follow that a stipulation may not be lawfully made calling for the presentation of a claim in writing for damages by the shipper to the carrier within a limited time, reasonable in extent,...