Mo., K. & T. Ry. Co. v. Davis
| Decision Date | 14 September 1909 |
| Docket Number | Case Number: 85 |
| Parties | MISSOURI, K. & T. RY. CO. v. DAVIS. |
| Court | Oklahoma Supreme Court |
¶0 1. CARRIERS--Carriage of Live Stock--Notice of Loss--Sufficiency. A contract between a railroad company and a shipper of a car of mules stipulated that, as a condition precedent to his right to recover for any loss to such stock, the shipper should give notice in writing to the conductor in charge of the train, or to the nearest station or freight agent, before the mules were mingled with other live stock or were removed from the pens at destination. The mules shipped were during the same afternoon on which they arrived removed from the pens to the barn of the shipper which adjoined the right of way of the railway company, and was nearer its depot than its stockpens. On the next morning after the arrival of the mules, while they were still in the shipper's barn, and before they had been mingled with other stock, the shipper served upon the station agent a notice of his claim for damages. The agent, after the mules had been placed in shipper's barn, and before they had been mingled with other stock, had an opportunity to, and did, on the day of their arrival and on the day the notice was served, examine and inspect them, and made memoranda of their injuries. Held, that the notice given was a substantial compliance with the contract on the part of the shipper, and was sufficient.
2. CARRIERS--Carriage of Live Stock--Actions for Damages--Time to Sue--Waiver by Agent. The contract provides that no suit shall be brought against the carrier after the lapse of 90 days after the happening of the injuries complained of, and further provides that no agent of the carrier shall have any authority to modify, waive, or amend any of the provisions of the contract. The station agent at the destination of the mules, who was not shown to have any authority to adjust and settle claims for damages, and who did not represent that he had such authority, was without power to waive the provision of the contract requiring suit to be brought within 90 days by advising the shipper not to sue, that the company always preferred to settle that class of claims.
3. EVIDENCE--Entries in Ordinary Course of Business. Entries in books made in the ordinary course of business at or near the time of the transaction to which they relate, when it is made to appear by the oath of the person who made them that they are correct, are admissible in evidence, but, when the same are not verified by the person who made them, and it is not shown that such person is dead or absent from the county, they are inadmissible.
Clifford L. Jackson, W. R., Allen, Webb & Ennis, and Rolls Bros., for plaintiff in error.--On contracts limiting time for suit: Railway Co. v. Trawick, 68 Tex. 314; Railway Co. v. Gatewood, 79 Tex. 89; Railway Co. v. Soper, 59 F. 893; Hutchinson on Carriers (3d Ed.) vol. 1, par. 448; Elliott on Railroads (2d Ed.) vol. 4, par. 1512; Railroad Co. v. Phillips, 17 Okla. 264; Deming Inv. Co. v. Insurance Co., 16 Okla. 1; Railway Co. v. Kirkham, 63 Kan. 255; Sprague v. Railway Co., 34 Kan. 347.
Duke Stone, for defendant in error.--citing: Nairn v. Railway Co., 106 S.W. 102; Rice v. Railway Co., 63 Mo. 314; Oxley v. Railway Co., 65 Mo. 629; Railway Co. v. Seligman, 23 S.W. 298; Ward v. Railway Co., 58 S.W. 28; Richardson v. Railway Co., 62 Mo. App. 1; Railway Co. v. Steele 33 N.E. 236; Popham v. Barnard, 77 Mo. App. 619; Railway Co. v. Temple (Kan.) 27 P. 98; Jennings v. Railway Co. (N. Y.) 28 N.E. 394; Railway Co. v. Sanders, 135 Ala. 504; Osterhandt v. Railway, 62 N.Y. Supp. 134; Ry. Co. v. Thomas, 7 L. R. A. (N. S.) 1041; Ormsby v. U. P. R. Co., 4 F. 706; Ry. Co. v. Collins, 27 P. 99; St. Louis, I. M. & S. Ry. Co. v. Jacobs, 68 S.W. 248; Railway Co. v. Ayers, 38 S.W. 515; Ry. Co. v. Harwell, 91 Ala. 340; Glenn v. Southern Express Co., 8 S.W. 152; Case v. Ry. Co., 39 N.E. 426; Hinton v. Ry. Co., 75 N.W. 373; Wood v. Ry. Co., 24 S.E. 704; Harned v. Ry. Co., 51 Mo. App. 482; Ry. Co. v. Adams, 14 S.W. 666; A., T. & S. F., Ry. Co. v. Wright 95 P. 1132; Cornelius v. Ry. Co., 87 P. 751; Ry. Co. v. Fry, 87 P. 754; Ry. Co. v. Frogley, 89 P. 903, Darling v. Ry. Co., 93 P. 612; Ry. Co. v. Poole, 87 P. 465; Hancock v. Ry. Co., 111 S.W. 519; Ry. Co. v. Shearer, 9 Am. & Eng. Ann. Cases, page 17; Ry. Co. v. Kelly, 26 S.W. 470; Ins. Co. v. Norment, 18 S.W. 397; Ins. Co. v. Tobey, 30 S W. 1113; Ins. Co. v. Freedman, 19 S.W. 1011; Vol. II, Wilson's Stat. of Okla sec. 4574, p. 1056; Ry. Co. v. Murphy, 30 S. W. 419; Atkinson et al. v. Burt, 53 S.W. 404; Ry. Co. v. Henderson et al., 21 S.W. 878; 1 Greenleaf Ev., secs. 115-120; 1 Wharton Ev., secs. 238, 240, 250, 678, 683, 688; Welsh v. Barrett, 15 Mass. 380; Bartholomew v. Farwell, 41 Conn. 107; Sneed v. State, 1 S.W. 68.
September, 1909, Decided
Error from District Court, Pontotoc County; A. T. West, Judge.
Action by J. W. Davis against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
This action was originally instituted in the United States Court for the Southern District of the Indian Territory at Ada on July 2, 1907. Defendant in error, plaintiff below, by his petition seeks to recover the sum of $ 640 damages claimed to have been sustained by him by reason of the negligence of plaintiff in error, defendant below, in transporting a car of mules from Eest St. Louis, Ill., over its line of railway to Ada., Ind. T., now Oklahoma. The cause of action originated and the suit was instituted before the admission of the state. Upon the admission of the state, the case was transferred to the district court of Pontotoc county for final disposition. The shipment of the car of mules by defendant began on or about midnight of January 2, 1907, and terminated about 3 o'clock p. m. on January 7th of the same year. The matters of which plaintiff complains in his petition are that defendant was negligent, careless, and unreasonably slow in the handling of the car of mules and unreasonably delayed the same, and that during the transportation thereof frequent demands were made by plaintiff for the privilege of feeding, watering, and otherwise caring for the mules, which demands were by the carrier refused; that by reason of the careless and negligent handling of the mules and the long delay in their shipment, and the denial of the right to feed and water them, when the mules reached their destination, they were much emaciated, shrunk in weight, tired, bruised, cut and otherwise injured, and that, by reason of said injuries, they were depreciated in market value to the amount of $ 20 per head. Defendant answered, denying all the allegations of negligence and injury to the mules and depreciation of the market value, and further alleged that the shipment of the mules was made under a special contract containing provisions which had not been observed by plaintiff, and, by reason of his failure to comply with such provisions of the contract, he is now barred from maintaining this action. Plaintiff filed a reply to the answer, and the trial, which was to a jury, resulted in a verdict for him and a judgment thereon for the sum of $ 320.
Clifford L. Jackson, W. R., Allen, Webb & Ennis, and Rolls Bros., for plaintiff in error
Duke Stone, for defendant in error
¶1 The contract of affreightment under which the mules were shipped contains the following stipulation:
"The shipper further expressly agrees that as a condition precedent to his right to recover any damages for any loss or injury to said live stock resulting from carrier's negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train or the nearest station or freight agent of the carrier on whose line the injuries occur before said cars leave that carrier's line, or before the live stock are mingled with other live stock or removed from pens at destination."
¶2 The mules arrived at Ada about 2 o'clock in the afternoon, and were shortly thereafter unloaded from the car into the stockpens of the company, from which they were immediately taken to plaintiff's barn which was near the company's depot at Ada and adjoins its right of way. No written notice of claims for injuries to the mules was served upon the agent of the company before the mules were taken from its stockpens, nor at any time during that day, but the station agent of the company at Ada during the afternoon of their arrival inspected the mules in the barn of plaintiff before they were mixed with other stock, and made a written memorandum of their injuries and condition. On the next morning a written notice of claim for damages was served by plaintiffs attorney upon the agent of the company. At the time of the service of this notice the mules were in plaintiff's barn, and had not been mixed with other stock. They were conveniently located to the depot of defendant, where they could be easily inspected by the company's agent, and were inspected by the agent on the day the notice was served.
¶3 Upon this issue the court instructed the jury as follows:
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