Mo., K. & T. R. Co. v. Lynn

• Decision Date: 05 December 1916
• Docket Number: Case Number: 7682
• Citation: Mo., K. & T. R. Co. v. Lynn, 1916 OK 1012, 161 P. 1058, 62 Okla. 17 (Okla. 1916)
• Parties: MISSOURI, K. & T. R. CO. v. LYNN.
• Court: Oklahoma Supreme Court

1916 OK 1012

161 P. 1058

62 Okla. 17

MISSOURI, K. & T. R. CO. v. LYNN.

Case Number: 7682

Supreme Court of Oklahoma

Decided: December 5, 1916

Syllabus

¶0 1. Carriers -- Carriage of Passengers -- Actions--Parties.

W. made an interstate shipment of livestock by defendant's line of railway, as a common carrier, with L. as caretaker of said stock, under a written contract by the provisions of which W. agreed to indemnify and hold harmless the said carrier for any damages it might be required to pay to any person accompanying said live stock. L. while acting as caretaker, sustained injury, and sued the carrier for damages. Held, that W. is not a necessary party to the action, and that it was not error for the court to deny the motion of defendant to make W. a party.

2. Same--"Passengers"--Who Are.

A person riding in the caboose of a freight train as a caretaker of live stock carried in such train is a "passenger," and it is the duty of the defendant railroad company to exercise toward him the highest reasonable and practicable skill, care, and diligence.

3. Same--Risk Assumed.

A passenger on a freight train assumes the ordinary risks of injury from jerks, jars and jolts incident to the movement of such trains, and, in order to warrant a recovery for an injury sustained from a jolt or jar, must show that such jolt or jar was unusual, extraordinary, or unnecessary.

4. Same--Notice of Injury--Contract.

Where an action is brought to recover damages for personal injury sustained by a caretaker of an interstate shipment of live stock under a written contract containing the provision that as a condition precedent to recovery of damages for personal injuries sustained by such caretaker, notice in writing of the claim for damages on account of such injury must be given the carrier within 30 days of the date of the injury; such provision being reasonable and valid, the failure to give such notice is a complete bar to such action.

5. Same--Waiver of Conditions.

The provision of said contract requiring notice is a condition precedent to the maintenance of such action, and must be substantially complied with by such caretaker before he can maintain a cause of action against the carrier, and the carrier cannot waive nor ignore such terms of the contract, since to do so would violate the federal act regulating interstate commerce, and permit discrimination by the carrier.

Error from District Court, Osage County; R. H. Hudson, Judge.

Action by Patrick Lynn against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Clifford L. Jackson, W. R. Allen, and M. D. Green, for plaintiff in error.

Leahy & MacDonald, for defendant in error.

EDWARDS, C.

¶1 For convenience and brevity the parties will be referred to as plaintiff and defendant, according to their position in the lower court. The plaintiff, Patrick Lynn, instituted this suit in the district court of Osage county against the defendant, Missouri, Kansas & Texas Railway Company, to recover damages for personal injuries sustained by plaintiff while a passenger on defendant's freight train as caretaker in charge of eight cars of cattle shipped by C. T. and J. E. White, from a point in Oklahoma to the National Stockyards at East St. Louis, Ill. The injuries complained of are alleged to have been caused by a sudden stop of said train in the defendant's yards at Ellis, Mo., by which plaintiff was thrown against the side and floor of the caboose, thereby breaking two of his ribs and injuring his back, from which injury it is alleged he suffered great physical pain and mental anguish, and will continue to so suffer, and whereby his earning capacity has been permanently impaired and he has been rendered unable to perform manual labor. The defendant by way of answer, among other things, alleges that the shipment of cattle was under a special contract, which is attached to the answer as exhibit A. Which contract provides for two rates applicable to such shipments, the lesser of which applied to the shipment under which the live stock moved, and that under said rate defendant's liability is limited as provided in said contract; that the plaintiff is bound by all the terms and conditions of said contract and is barred from maintaining this action; that by the terms of said contract it is provided that the party in charge of said shipment would be carried only on the train drawing said cars, in accordance with the rules on back of said contract, a failure to observe which would be an absolute bar to any right to recover damages for any injuries resulting from failure to observe the same, and every one who should receive any injuries by reason of the negligence of the carrier should have no right of action therefor unless notice in writing of the claim for damages on account of such injury be given to some local agent of the carrier or the general manager at St. Louis within 30 days of the date of the injury, such notice to contain a statement of certain facts set out in the contract. The defendant further specifically pleads section 5 of said contract, requiring notice in writing of any injury sustained by any person in charge of said live stock within 30 days, and alleges that no notice was ever given as required in said paragraphs. Further answering, the defendant alleges that the shippers, C. T. and J. E. White, by the terms of said contract agreed to hold the carrier harmless from all claims of injuries to persons accompanying said live stock. Defendant prays that said shippers be made parties defendant, and that if any judgment be rendered in favor of the plaintiff, it have judgment over against the said shippers for the amount thereof, with costs and expenses. The plaintiff, among other things, by way of reply, alleges that plaintiff upon his arrival at St. Louis presented his drover's contract to the validating agent to have issued to him a ticket for his return transportation; that said agent at the time informed plaintiff that the general claim agent of defendant company desired to see him at the general office at St. Louis and arrange a settlement for plaintiff's injuries; that plaintiff went to the office of the general claim agent at St. Louis, and said claim agent offered to settle with plaintiff for the damages sustained and plaintiff informed the agent at the time the full facts concerning his injuries, and stated to said agent that he did not know the extent of his injuries nor the character of the same, and that it was impossible for him to tell the company whether the injuries were permanent, and informed the company at the time that if the injuries were permanent, it would have to stand responsible for damages to him; that said officer did not demand that he make out or reduce to writing said statement and made no objection to the form of the claim made by plaintiff; that on his return to Oklahoma about two days thereafter the son of plaintiff saw one of the claim agents of the defendant and spoke to him of the injury of plaintiff, and the agent at the time agreed to call upon plaintiff and take a statement, but did not do so. That plaintiff thereafter wrote to said claim agent at Oklahoma City, and was by him directed to see a physician at Bigheart, Okla., and thereafter plaintiff wrote to the general claim agent at St. Louis and made a claim for damages, but received no reply thereto; that since the day of the injury the defendant had full notice and actual knowledge of all the facts and circumstances connected with and concerning such injury of plaintiff, and at all times assented to the verbal statement instead of the written statement, and by reason thereof waived the terms of the contract. Plaintiff further alleges that said contract is unreasonable, in that it was impossible for the plaintiff, within 30 days after said injury, to ascertain or discover the full extent thereof and whether or not it was permanent. The case was tried to a jury, and judgment rendered in favor of plaintiff in the sum of $ 2,000, from which judgment the defendant in due time appealed to this court. The defendant argues several propositions as grounds for reversal of the judgment rendered, which will be considered in the order presented.

¶2 The first assignment is based upon the following clause in the live stock contract:

"* * * The shipper * * * will hold the carrier harmless from any and all claims for injuries to persons accompanying said live stock, as aforesaid, resulting from carrier's or employe's negligence, or otherwise, and will indemnify it, for any damages it may be required to pay by reason thereof. * * *"

¶3 And it is contended that under sections 4690 and 4691, Revised Laws of 1910, the shippers should have been made parties to the action. Those sections provide that any one having an interest in the subject of an action may be made a party, and that any person may be made a defendant who has or claims any interest in the controversy adverse to the plaintiff, or who is a necessary party to the complete determination of the question involved. It is also insisted that under the law of indemnity (article 10, ch. 12, Revised Laws of 1910), the plaintiff was entitled to have the shippers made parties defendant. There is authority which would seem to have warranted the trial court in making the shippers parties to the action. Boyer v. Lucas & St. L, etc., R. Co. (Tex. Civ. App.) 72 S.W. 1038; Houston, etc., R. Co. v. Douglas (Tex. Civ. App.) 120 S.W. 1048. It, however, can hardly be said that one who indemnifies another against claims for injury and damages has such an interest in a suit for damages in actions for tort as will require the indemnifier to be made a party to the action. Under the second subdivision of section 1080, Revised Laws of 1910, there could be no recovery by the indemnified without payment by him. The general rule is stated as follows:

"The right to sue for indemnity for damages resulting from the

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