St. Louis & S. F. R. Co. v. Zickafoose
| Decision Date | 23 September 1913 |
| Docket Number | Case Number: 2686 |
| Parties | ST. LOUIS & S. F. R. CO. v. ZICKAFOOSE. |
| Court | Oklahoma Supreme Court |
¶0 1. PLEADING--Conclusiveness of Allegations on Pleader. In an action by a shipper to recover damages of a railroad company, arising out of the injury and loss to an interstate shipment of live stock, where plaintiff asks and obtains leave of court to amend his petition by charging that the defendant executed and issued bills of lading to the shipper for such shipments and that plaintiff is the lawful holder thereof, it cannot afterwards be said that the shipment was made under an oral contract, notwithstanding a subsequent equivocal allegation in the reply filed, charging that the bill of lading was executed after the shipments had been loaded and that said shipping contracts were executed as a receipt and memorandum and to entitle plaintiff to return transportation.
2. CARRIERS--Liability for Loss of Goods--Interstate Shipment--Connecting Carriers. A liability for some default in its common-law duty as a common carrier and not a liability as an insurer is what is imposed by the Carmack Amendment of June 29, 1906, c. 3591, sec. 7, 34 St. at L. 593 (U.S. Comp. Stat. Supp. 1911, p. 1307), to Act Feb. 4, 1887, c. 104, sec. 20, 24 St. at L. 386, under which a carrier, receiving property for interstate transportation, is required to issue a bill of lading therefor and is made liable to the holder for "any loss, damage, or injury to such property, caused by it" or by any connecting carrier to whom the property may be delivered.
3. SAME--Carmack Amendment--Demurrer to Answer. A stipulation in a shipping contract that the carrier does not undertake to transport live stock within any specific time nor deliver at any particular hour nor in season for any particular market, or that the carrier shall not be responsible for any delay caused by storm, failure of machinery or cars, or from obstructions of track from any cause, or any injury caused by fire from any cause whatever, where set up as a defense in an action by the shipper against the carrier for damages on account of delay, loss, or injury to shipment, not being forbidden by the provisions of the Carmack Amendment of June 29, 1906, c. 3591, sec. 7, 34 St. at L. 593 (U. S. Comp. Stat. Supp. 1911, p. 1307), to Act Feb. 4, 1887, c. 104, sec. 20, 24 St. at L. 386, prohibiting exemptions from liability imposed by that act, does not on its face attempt to cover losses caused by negligence or misconduct of the carrier; hence such defense is not subject to demurrer.
4. SAME--Limitation of Liability -- Negligence -- Evidence on the Trial. If, however, on the trial it should appear that, notwithstanding said stipulation, the failure to reach a particular market or to deliver at a particular time was occasioned by the negligence or acts of omission on the part of the carrier, such carrier would be liable regardless of the provisions of the contract.
5. SAME--Operatton and Effect. A carrier, though not bound, under the terms of a shipping contract, to transport live stock within any specified time nor deliver the same at destination at any particular hour or for any particular market, must transport the stock with all convenient dispatch and with such suitable and sufficient means as it is its duty to provide for its business; that is to say, in a reasonable time.
6. COMMERCE--Acts of Congress as Superseding State Statute. On account of the passage of Act Cong. June 29, 1906, c. 3591, 34 St. at L. 584 (U.S. Comp. Stat. 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. Ed.) of the Constitution of this state applies only to intrastate shipment (following Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. ).
7. CARRIERS--Interstate Shipments--Limitation of Liability. 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.
8. Same--Carriage of Live Stock. Under the federal law, which is controlling upon the court in determining questions of liability properly arising out of interstate shipments, a provision in a live-stock contract or bill of lading to the effect that, as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by the contract, the shipper will give notice in writing of the claim therefor to some general officer, or the nearest station agent, or to the agent at destination, or some general officer of the delivering line, before said stock is removed from the point of shipment or the place of destination, and before such stock is mingled with other stock, such notice to be served within one day after the delivery of such stock at destination, was valid. St. Louis & S. F. R. Co. v. Ladd, 33 Okla. 160, 124 P. 461.
9. SAME. The foregoing provisions, covering damages for delay, includes a loss sustained by a decline in the market.
10. EVIDENCE -- Entries in Books of Account -- Preliminary Proof. Entries in books of account may be admitted in evidence, where it is made to appear by the oath of the person who made the entries that such entries are correct and were made at or near the time of the transaction to which they relate or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the county.
W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.
Chas. E. Bush and John Y. Murry, Jr., for defendant in error.
¶1 Plaintiff's action is to recover damages sustained to three shipments of hogs and one shipment of cattle transported by defendant company over its line of railroad from Keystone, Okla., to Kansas City, Mo. At the trial it developed that the damages sustained under the first cause of action had been settled by defendant company. In its amended answer the defendant set up the live-stock contracts under which said shipments were made, and among other paragraphs thereof, relied upon as a defense, were the following:
¶2 To the paragraphs of the answer, based upon the foregoing provisions of the stock contracts, plaintiff demurred, and the demurrer was by the court sustained, and its ruling is here challenged as error. Before passing upon the court's action in sustaining the demurrer to said two paragraphs of the defendant's amended answer, we will note briefly the claim in the brief of defendant in error that the several shipments were made under oral contracts. The record discloses the fact that, at the time the court sustained the above-mentioned demurrer, plaintiff asked and was given leave of court to amend his petition by adding to each cause of action the following: "That the defendant executed and issued a bill of lading to the plaintiff for such shipment, and plaintiff is the lawful holder thereof." The act of June 29, 1906 (34 St. at L. 593, c. 351, sec. 7), known as the Carmack Amendment to the original interstate commerce act of February 4, 1887 (24 St. at L. 386, c. 104, sec. 20 [U.S. Comp. St. Supp. 1911, p. 1307]), requires any common carrier, railroad, or transportation company, receiving property for transportation from a point in one state to a point in another state, to issue a receipt or bill of lading therefor. The transactions in question, each being interstate shipments, in which the common carrier issued, and the shipper accepted, bills of lading, covering the shipments, and leave being granted plaintiff to amend his petition by declaring upon said written bills of lading or shipping contracts, it sufficiently appears from the petition as amended that the shipments were made pursuant to the terms of the several bills of lading, regardless of the equivocal allegations of plaintiff's reply. On the part of plaintiff in error it is urged that paragraph 3 of the defendant's amended answer, to which demurrer was sustained, was objectionable for the following reasons: (1) That said provisions were violative of the federal acts regulating interstate commerce; (2) that said provisions undertook to relieve the defendant company of its own acts of negligence; and that paragraph 4 of said answer was objectionable on the ground that it was in violation of article 23, sec. 9, of the Constitution of this state. We shall first consider the de...
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