St. Louis & S. F. R. Co. v. Bilby

• Decision Date: 11 March 1913
• Docket Number: Case Number: 2430
• Court: Oklahoma Supreme Court
• Parties: ST. LOUIS & S. F. R. CO. v. BILBY.

1913 OK 191

130 P. 1089

35 Okla. 589

ST. LOUIS & S. F. R. CO. v. BILBY.

Case Number: 2430

Supreme Court of Oklahoma

Decided: March 11, 1913

Syllabus

¶0 1. CARRIERS--Commerce--Transportation of Live Stock-- Interstate Shipments--Limited Liability--State Regulations. On account of the passage of the Act of Congress of June 29, 1906, c. 3591, 34 St. at L. 584 (U. S. Comp. St. Supp. 1911, p. 1284), the state, under its police power, has ceased to have the authority to pass acts relative to contracts made by carriers pertaining to interstate shipments, and section 9 of article 23 (section 358, Williams' Ann. Const. Okla.) of the Constitution of this state applies only to intrastate shipments (following Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. , decided by the Supreme Court of the United States on January 6, 1913).

(a) As to interstate shipments, the common-law liability of the carrier for the safe carriage of property may be limited by a special contract with the shipper, where such contract, being supported by a consideration, is reasonable and fairly entered into by the shipper, and does not attempt to cover losses caused by the negligence or misconduct of the carrier (following Adams Express Co. v. Croninger, supra).

(b) As to intrastate shipments, only such contracts as are made between the carrier and the shipper pursuant to rules and regulations adopted by the Corporation Commission of this state are valid.

(c) All contracts or bills of lading made or issued by carriers as to intrastate shipments, which are inconsistent with the rates, charges, classifications, rules, and regulations adopted by the Corporation Commission of this state, are void.

2. APPEAL AND ERROR--Carriers--Evidence--Trial- -Transportation of Live Stock--Damages--Issues--Instructions. The petition claimed, as one of the grounds for damages, "rough and indifferent handling," by which the "cattle were badly bruised." Over the objection of the defendant (plaintiff in error), the plaintiff (defendant in error) was permitted to prove that the cattle were badly bruised, which was caused by being lugged about in the cars and jammed against the sides of the cars and ends of the same. Held, not to be reversible error under the issues as framed.

(a) To lay a foundation for the admission of evidence as to the value or damage to cattle, it is sufficient to show that the witness' knowledge was that of a cattle raiser or dealer, and by pricing the same at the time the cattle alleged to have been damaged were placed on the market; the witness stating that he knew the market price. The weight of the opinion or statement as to such price then given is for the jury.

(b) The Live Stock Reporter, which was sought to be introduced in evidence in order to show the market quotations of cattle, neither having been made a part of the record nor the part thereof specially sought to be introduced, this court, on review, is unable to determine whether any error prejudicial to the right of the plaintiff in error was committed, and, under such circumstances, the alleged error cannot be considered on review here.

(c) Although the instruction which was asked on the part of the plaintiff in error, but refused by the trial court, may correctly define the law applicable to the issue or issues in the case, yet, if the subject upon which the instruction was requested is fully covered in the general charge, no reversible error will operate on account of the refusal of the trial court to give same.

Error from Hughes County Court; P. W. Gardner, Judge.

Action by N. V. Bilby against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.

Lewis C. Lawson, for defendant in error.

WILLIAMS, J.

¶1 This proceeding in error was commenced to review the judgment of the trial court, wherein the defendant in error, as plaintiff, had sued the plaintiff in error, as defendant, to recover damages on a certain shipment of cattle delivered to the railroad company at Holdenville, Okla., on April 6, 1909, to be delivered by said carrier at the National Stock Yards, Ill.

¶2 For convenience, in this opinion the plaintiff will be referred to as shipper, and the defendant as carrier.

¶3 The carrier answered by general denial, and further as follows:

"Defendant admits that on April 6, 1909, it received a shipment of cattle from the plaintiff for transportation from Holdenville, Okla., to National Stock Yards, Ill., but avers that at said time this defendant had two rates for the transportation of live stock, to wit, a rate at carrier's risk and a reduced rate under a contract limiting the liability of the carrier, and that plaintiff had the option of shipping said stock at either of said rates; that plaintiff elected to ship said cattle at the reduced rate, and requested, in writing, the transportation of said cattle at such reduced rate under the terms of a contract limiting the liability of the carrier; that said contract, among other things, provided: 'That shipper acknowledges that he has had the option of shipping the live stock at carrier's risk at a higher rate, or under this contract at a lower rate, and that he has elected to make this contract and accept the lower rate. The evidence that the shipper, after a full understanding hereof, agrees to this contract and all the limitations and provisions herein contained is his signature hereto.'

"The defendant agreed to transport said cattle under the terms of said contract limiting the liability of the carrier; said written contract providing for the transportation of said cattle was duly executed by plaintiff and defendant, and a copy of the same is hereto attached and for certainty marked Exhibit A and made a part of this answer.

"Defendant avers that it is provided in said contract as follows: '(a) Live stock is not to be transported or delivered within any specified time, nor in season for any particular market. The company shall not be liable for delay caused by storms, rains, failure of engines, cars, or machinery, obstructions to the track, or from any cause whatever.'

"Defendant further avers that it is provided in said contract as follows: '(b) The company shall not be responsible for any death, loss, or injuries sustained by the live stock from any defect in the cars, overloading of cars, escaping of live stock, or because the live stock are wild, unruly, or weak, or maiming each other or themselves, or from fright, crowding, heat, or suffocation. (c) No agent of this company has authority to waive, modify, or amend any limitation or provision of this contract, or to furnish any special kind of cars, or to furnish cars at any fixed time, or to agree to transport the live stock by any certain train, or within any fixed time, or to reach any particular market, which the company hereby expressly declines to do.'

"And this defendant avers that said cattle were transported to National Stock Yards, Ill., in the ordinary and usual course of transportation, and defendant further avers that, under the terms of said contract, it is only required to transport said cattle by its regular freight trains, and by its first trains moving toward the point of destination, which defendant avers it did.

"Defendant avers that it was provided in said contract executed for the consideration above mentioned as follows: '(d) As a condition precedent to recovery of damages for any death, loss, injury, or delay of the live stock, the shipper shall give notice in writing of his claim to some general officer of the company or the nearest station agent or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be promptly and fully investigated, and a failure to comply with this condition shall be a bar to the recovery of any damages for such death, loss, injury, or delay.'

"And defendant avers that said plaintiff wholly failed to give any notice of any claim for injury to such stock to any of the persons mentioned in said contract within one day after the delivery of said stock at its destination, and before said stock was mingled with other live stock, and defendant believes such failure on the part of the plaintiff is a bar to any recovery in this action."

¶4 Afterwards an amendment was filed by the shipper to his original petition, by which he claimed the additional sum of $ 214.60 by reason of the depreciation in the price of the cattle on account of the delay in shipment.

¶5 The shipper demurred to the portion of the answer hereinbefore set out, which is referred to as paragraph 2. The order of the court thereon is as follows:

"The court sustains the demurrer of the plaintiff to so much of the second paragraph of the defendant's answer as seeks to make the company not liable for failure of engines, class of machinery, obstructions to the track, or for any cause whatever; the court sustains the demurrer of plaintiff to so much of the second paragraph of defendant's answer as seeks to make it a condition precedent to the recovery of damages for any death, loss, or injury or delay of live stock, that notice in writing of such claim should be given within one day after its delivery at destination; the limitation being regarded by the court as not reasonable, to which the defendant excepts."

¶6 In due time the shipper filed a reply denying:

"* * * That, at the time of the shipment mentioned in plaintiff's petition, the plaintiff was offered his option by defendant of shipping said cattle at a rate at carrier's risk, or a reduced rate under a contract limiting the liability of the carrier. Plaintiff admits signing a bill of lading, but says that he did not have time or opportunity to read same, and that he was not acquainted with the contents of same, and that he was not told by the agent of the

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