St. Louis & S. F. R. Co. v. James
| Decision Date | 26 November 1912 |
| Docket Number | Case Number: 1307 |
| Citation | 36 Okla. 196,128 P. 279,1912 OK 776 |
| Parties | ST. LOUIS & S. F. R. CO. v. JAMES et al. |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS--Terms--Effect of Adjournment. Where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by operation of law, or by an adjournment sine die; and where court has been so regularly convened, and has been adjourned to a day further on in the term, the failure of the judge, on account of sickness, to appear and hold a session on the day to which an adjournment has been taken, does not result in the loss or lapse of the term.
2. SAME--Legality of Decision. A district court was regularly convened for general purposes, at the time and place fixed by order of the Supreme Court, and continued in session from the 30th of November until the 18th of December, when an adjournment was taken to the 21st of December, at which time the judge was unable, because of sickness, to appear and open and hold a session of court. On the 28th of December, a day within the limits of the term of court as fixed, the judge appeared and held a session of the court, trying a case, previously assigned regularly for trial on that date. Held, that the court was legally constituted and that its proceedings and judgments are valid.
3. CARRIERS--Carriage of Live Stock--Limitation of Liability--Waiver. A stipulation in a contract for the shipment of live stock limiting the liability of the carrier or fixing the time and manner of giving notice or presenting claims may be waived by the carrier impliedly, by conduct, as well as expressly.
4. SAME--Actions--Questions for Jury. Where there is evidence tending to show that the freight claim agent of a common carrier receives a claim for damages to a shipment of live stock after the time limited by a provision of the shipping contract requiring notice, which has not been complied with by the shipper, has expired, treats it as a pending claim, and rejects it on other grounds, the question of whether it was the intention of the carrier to waive the notice clause as a defense is a question of fact to be submitted to the jury.
5. SAME--Limitation by Contract. The clause in a contract for the shipment of live stock, limiting the time within which an action for damage to stock shipped thereunder may be brought to a period of six months after the cause of action has accrued, is invalid and will not be enforced.
W. F. Evans and R. A. Kleinschmidt, for plaintiff in error.
Everett Petry, for defendant in error.
¶1 This is a suit for damages for loss of weight, grade, and market, growing out of a shipment of twelve car loads of beef cattle shipped on the 15th day of March, 1907, and is based on negligent handling and delays upon the part of the carrier. The defendant in its answer, after an admission of its corporate existence, the receipt of the cattle as alleged, and a general denial of the remainder of the petition, sets up four separate written contracts of shipment, and alleges three separate defenses based thereon. These defenses are based on paragraphs 4, 7, 11, and 14 of the written contract of shipment. Paragraph 4 provides against liability for failure to ship, or deliver at any particular time or at any particular market, and for delays caused by storm, failure of machinery, etc. Paragraph 11 requires, as a condition precedent to the recovery of damages for the delay, loss, or injury to the shipment, that a notice in writing be given to certain officers of the carriers, therein specified, within one day after delivery of the stock at destination. Paragraph 14 is a limitation upon the time for bringing suit. The reply admits the execution of the contracts pleaded in the answer, but seeks to avoid the force of same by alleging that they were based upon an unreasonable and illegal consideration, and further that plaintiffs were compelled to accept the terms in the contract in order to make the shipment, inasmuch as the only other rate offered the shipper was a prohibitive one. The reply further pleads a waiver of the contract provisions respecting the giving of the written notice of damage, and further that the provision limiting the time of bringing the action is contrary to law and void, but, even if valid, that it had been waived by the carrier by its action in holding the claim sued on under advisement and pending settlement, until the time of bringing suit named in the contract had expired. The reply was verified. On the issues thus presented, the cause was tried to a jury on December 28, 1908, and resulted in a verdict and judgment for plaintiff in the sum of $ 1,000. We gather from a reading of plaintiff in error's brief that it relies for a reversal upon the four following general propositions: (1) That the judgment is void because the term of court had lapsed by operation of law at the time of its rendition. (2) Refusal of the court to instruct the jury that the failure to give the notice of the damages as provided in the contract was a bar to recovery. (3) Failure of the evidence to show a waiver of the notice relative to damages, and the admission of incompetent evidence tending to show such waiver. (4) Excessive damages. We will consider the points made in their order. At the former hearing of this case we were of the opinion, and so held, that, at the time this judgment was rendered, the term of court had lapsed by operation of law, and that the judgment was therefore coram non judice and void; but, from the petition for rehearing and the briefs supporting the same, we have been led to believe that in our former opinion we had overlooked controlling decisions, and therefore arrived at an erroneous conclusion. Upon this point the record shows the following state of facts: Upon the calling of the cause for trial December 28, 1908, the carrier objected to the jurisdiction of the court to proceed with the trial in the following language:
"Now comes the defendant and objects to proceeding at this time for the reason and upon the grounds that the November, 1908, term of this court has expired, and that there is at this time no term of court at which the proceeding may be had, and upon that motion and objection the defendant desires to call testimony."
¶2 The record and proof introduced on this point showed the following:
"The regular November term of the district court of Jackson county was fixed by order of the Supreme Court to begin on the 30th day of November, 1908, and may continue to and including December 31, 1908."
¶3 Later by order of the Supreme Court said term was extended "so as to continue to and include the 9th day of January, 1909." The clerk of the court, testifying from the records, showed the following orders as to adjournment:
"December 18, 1908, court then adjourned by proclamation of the sheriff until Monday (December 21st), 1908, at 10:00 o'clock a. m."
¶4 With no intervening orders it is further shown:
¶5 The clerk further testified that the judge of the court was not present when said order was made. On December 28, 1908, the judge appeared and opened court and tried the case. The protests of counsel, as above shown, were based on purely legal grounds; it not being contended that any prejudice, inconvenience, or state of unpreparedness had resulted from the situation. It is not disputed that the regular judge opened the regular November term of court on the first day of the term, November 30, 1908, and that the same was in regular session up to and including December 18th, when it was regularly adjourned to the 21st. On the 21st, sickness prevented the judge from being present to proceed with the business of the court. The sheriff proclaimed an adjournment from the 21st to the 28th. This he had no right to do, and his action in so doing is a mere nullity. Railway Co. v. Hand, 7 Kan. 380; Thomas v. Fogarty, 19 Cal. 644; People v. Sanchez, 24 Cal. 17; In re McClaskey, 2 Okla. 568, 37 P. 854; In re Terrill, 52 Kan. 29, 34 P. 457, 39 Am. St. Rep. 327; In re Patzwald, 5 Okla. 789, 50 P. 139; Lookabaugh v. Okeene Hdw. Co., 25 Okla. 474, 106 P. 844. But the action of the sheriff being admittedly a nullity, does it follow that the term, once lawfully convened, lapsed when the judge was unavoidably detained and prevented from reconvening it on the date to which it had been adjourned? It was thought, in the former opinion, that Lookabaugh v. Okeene Hdw. Co., 25 Okla. 474, 106 P. 844, was authority for so deciding. Not that the point was directly decided in that case, but that certain statements of the opinion, without a thorough examination of the authorities it cited, led us to that conclusion. In that case the court was in regular session on the 20th of October, and tried the case, and on the next day, before rendering judgment, adjourned the court to November 19th, and on the 19th the sheriff in the absence of the judge, adjourned the court to November 20th. On the said day the district court of another county in the same district, with another judge presiding, opened and adjourned to the 21st of November, when it reconvened and continued in session from day to day, to December 20th, when it adjourned until December 26th. That pending the said adjournment of the court in the other county on the 21st of December the regular judge opened court in the county where the case had been tried and rendered judgment. The judgment was held to be coram non judice and void. Justice Turner for the court on that state of facts says:
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