Missouri, K. & T. Ry. Co. v. Walker

• Decision Date: 10 January 1911
• Citation: 113 P. 907,27 Okla. 849,1911 OK 45
• Parties: MISSOURI, K. & T. RY. CO. v. WALKER.
• Court: Oklahoma Supreme Court

113 P. 907

27 Okla. 849, 1911 OK 45

MISSOURI, K. & T. RY. CO. v. WALKER.

Supreme Court of Oklahoma

January 10, 1911

Syllabus by the Court.

Same as paragraph 2 of syllabus in Cole v. M., K. & O. R Co., 20 Okl. 227, 94 P. 540.

(a) Same as paragraph 1 of syllabus in State Mut. Ins. Co. v Craig, 111 P. 325.

(b) A clause providing, "in case of any loss or damage sustained by any of the property herein receipted for whereby any liability or any responsibility may be incurred the amount of loss or damage shall be computed at the value or cost of the article herein mentioned at the place and time of shipment," contained in a bill of lading executed in Oklahoma Territory on August 29, 1906, under the then existing law, may be valid.

Entries in books made in the ordinary course of business at or near the time of the transaction to which they relate, upon proof of the handwriting of the person who made such entries, in case of his death or absence from the county, may be admitted in evidence.

Error from District Court, Logan County; A. H. Huston, Judge.

Action by W. T. Walker against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, with instructions.

C. L. Jackson and C. G. Hornor, for plaintiff in error.

F. H. McGuire, James Hepburn, and C. C. Smith, for defendant in error.

WILLIAMS J.

On the 29th day of August, 1906, the defendant in error, hereinafter designated as the "shipper," delivered to plaintiff in error, hereinafter referred to as the "carrier," at Meridian, Okl. T., a car load of peaches consigned to Jackson & Co., Dallas, Tex. The bill of lading covering this shipment contained the following clause: "In case of any loss or damage sustained by any of the property herein receipted for, whereby any liability or any responsibility may be incurred, the amount of loss or damage shall be computed at the value or cost of the article herein mentioned at the place and time of shipment, and the carrier so liable shall have the benefit of any insurance that may have been effected upon or for account of said goods." On the trial the carrier offered to prove that the entry in a certain book which was produced in regard to the icing of the car in transit at Denison, Tex., was made by George Summerville, an employé, whose duties it was to make entries in the book from cards furnished to him by one Mercer, an employé of the plaintiff in error, who was present and testified at the trial. Mercer identified the entries in the book as being in Summerville's handwriting, and stated that the same were made in due course of business by said Summerville, who, at that time, was in the state of Texas and absent from the county in which the trial was had. The entry in the book showed the arrival and icing of the car as contended for by the carrier.

The following questions are raised:

(1) Was the evidence tending to prove negligence on the part of the carrier sufficient to withstand a demurrer thereto?

(2) Whether the amount of recovery in the case of liability of the carrier should be the valuation of the property lost or ruined computed as of the time and place of the beginning of the shipment, or of its destination.

(3) Did the court err in excluding the record of the entries of the arrival and icing of the car at Denison, Tex.?

1. The evidence was sufficient to withstand the demurrer and sustain a finding of negligence, Cole v. M., K. & O. R Co., 20 Okl. 227, 94 P. 540, 15 L. R. A. (N. S.) 268.

2. This cause of action pending and undetermined at the erection of the state is to be tried, or continued, as if no change in the form of government had taken place. Freeman v Eldridge, 110 P. 1057; P. Mut. Ins. Co. v. Adams (decided at Nov. 1910, Term) 112 P. 1026; St....