Missouri, K. & T. Ry. Co. v. Hancock & Goodbar
| Decision Date | 10 May 1910 |
| Citation | 109 P. 223,26 Okla. 265,1910 OK 145 |
| Parties | MISSOURI, K. & T. RY. CO. v. HANCOCK & GOODBAR. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An agreement in a special contract between a shipper and a carrier executed in the Indian Territory prior to the admission of the state that as a condition precedent to the shipper's right to recover any damages for the loss or injury to live stock shipped under the contract resulting from the carrier's negligence, including delays, the shipper shall, within a specified period of time after the happening of the injury complained of, which period of time is reasonable, file with the carrier or certain of its agents his claim therefor, giving the amount thereof, is not against public policy; and, in the absence of statutory or constitutional provisions prohibiting the same, is valid.
A stipulation in such contract that no suit thereon against the carrier shall be brought after the lapse of ninety days from the happening of the injury complained of is valid.
Error from Craig County Court; Theo. D. B. Frear, Judge.
Action by Hancock & Goodbar against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
Clifford L. Jackson, W. R. Allen, and Fogle & Parks, for plaintiff in error.
Seymour Riddle, for defendant in error.
HAYES J. (after stating the facts as above).
Several assignments of error are urged by plaintiff in error defendant below, for reversal of this cause, but, since it appears that the conclusions we reach on some of these assignments will in all probability dispose of this cause, we shall not consider all the assignments. The contract stipulates that it was executed in consideration of a special rate less than the regular tariff rate applying on shipments of live stock not covered by special contracts. Plaintiff sought to show that the rate charged by the railway company and paid by them was the regular tariff rate, and therefore the special stipulations of the contract were without consideration, and are for that reason void. To establish their contention, they were permitted to prove by a station agent of the railway company who testified by referring to a pamphlet held by him which he stated was an official tariff of the company, that the rate from Welch, Okl., to Kansas City, Mo., was 13 1/2 cents per hundred pounds, where the cattle were shipped entirely at owner's risk, with limitations placed on the value of each head. This evidence was permitted over the objection of the railway company, but the witness also testified that said rate did not apply where the shipment was made at the carrier's risk, and the foregoing constitutes all the evidence upon this phase of the case, except the testimony of plaintiffs that they paid 13 1/2 cents per hundred as freight on the cattle. The railway company insists that the evidence of the agent was incompetent, because it was not the best evidence. If this contention be true, which we do not decide, it would be harmless error, because the evidence objected to does not prove or tend to prove that the contract was not supported by a consideration, for the witness stated that the rate of 13 1/2 cents per hundred paid by defendants in error was the rate on shipments at shipper's risk, and did not apply to other shipments. There is no evidence whatever showing whether the regular tariff...
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