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

• Citation: 33 Okla. 160,124 P. 461,1912 OK 419
• Decision Date: 14 May 1912
• Docket Number: Case Number: 835
• Parties: ST. LOUIS & S. F. R. CO. v. LADD.
• Court: Supreme Court of Oklahoma

1912 OK 419

124 P. 461

33 Okla. 160

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

Case Number: 835

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. CARRIERS--Contract of Shipment--Limitations. A shipper of live stock cannot, in the absence of fraud by the carrier, avoid limitations of the carrier's liability contained in the bill of lading or shipping contract by showing that he executed the contract hurriedly, or without due care, or that he was ignorant of its contents, or failed to read the same.

2. SAME. By the laws in force in the territory of Oklahoma prior to statehood, 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 by such contract, the shipper will give notice in writing of the claim therefor to some general officer or the nearest station agent of the carrier or to the agent at destination or to some general officer of the delivering line before such stock is removed from the point of shipment or from 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.

3. SAME--Live Stock Shipment--Notice of Injury. Where, from the nature of the injury alleged and proved to have been inflicted upon the cattle, it must have been apparent at once upon their arrival at destination that they were seriously damaged and that there was nothing to prevent the shipper from making the necessary claim and giving the railroad company an opportunity to examine the live stock within the time and in the manner limited in the shipping contract, the question of the reasonableness of such a provision is a question of law for the court.

4. SAME--Limitation of Liability--Waiver of Stipulations. A stipulation 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.

5. SAME--Notice of Damage--Waiver. 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 clause of the shipping contract requiring notice, which has not been complied with by the shipper, has expired, treats it as pending and then rejects it on other grounds, the question of whether the carrier intends to waive the notice clause as a defense is a question of fact for the jury.

W. F. Evans, R. A. Kleinschmidt, W. C. Mitchell, and Fred E. Suits, for plaintiff in error.

F. E. Riddle, for defendant in error.

KANE, J.

¶1 This was an action by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover damages to a shipment of cattle shipped by the plaintiff over the defendant railway from Tuttle, Okla., to Kansas City, Mo. The petition contained two paragraphs; the first being to the effect that through the negligence of the officers, agents, and employees of the defendant the train on which said cattle were shipped was delayed and said cattle were on the road standing in the cars for about 50 hours longer than was necessary and beyond what was the reasonable time required for transporting and delivering said cars at Kansas City, and that thereby said cattle were injured in looks and appearance, and were caused to be in a stale and stupid condition, and to lose extra flesh to the amount of 50 pounds per head. The second paragraph was to the effect that there was a decline in the market between the day said cattle should have been in Kansas City and the day they arrived there, on account of which delay said cattle brought less on the market by reason of their condition than they would have brought had they been in the good condition they would have been in if they had been delivered within a reasonable time. The action was in form an ordinary action at law, based upon the theory that the railway company had violated its common-law duty as a common carrier in the particulars above set out. The answer of the defendant, after admitting it received the shipment of cattle, alleged, in substance, that at said time it 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 cars of cattle at the reduced rate, and requested in writing the transportation of said cattle at such reduced rate, under the terms of the contract limiting the liability of the carrier. Then follow allegations setting up noncompliance with several of the conditions of the special contract by the plaintiff. The reply amounted to a general denial. On the trial there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. It is admitted that plaintiff signed the special contract, but he contends that he did so under such circumstances as not to charge him with knowledge of its contents, and that he did not have an opportunity to exercise the option of choosing the rate under which he desired to ship. It seems that the cattle were loaded just a few moments before the departure of the train on which they were to be transported; that, immediately after they were loaded and before the shipper had time to get his bill of lading or sign his contract, the train crew commenced the necessary switching operations to transfer the loaded stock cars from the place they were loaded to their proper place in the train which was to carry them to their destination; that while this was going on the shipper went to the station agent, and signed the special contract referred to without reading it; that he made no inquiry whether or not the company had two rates, and the agent did not tell him that there were two rates, nor read the contract to him, nor call his particular attention to the conditions contained therein. It is also admitted that the cattle were on the road longer than the time usually necessary to transport them from Tuttle, Okla., to Kansas City, Mo., and that on their arrival at the market in Kansas City the cattle were considerably shrunken in flesh. The rule seems to be well settled that a shipper of live stock cannot, in the absence of fraud by the carrier, avoid limitations of the carrier's liability contained in the bill of lading or shipping contract by showing that he executed the contract hurriedly, or without due care, or that he was ignorant of its contents, or failed to read the same. Nashville, etc., R. Co. v. Stone, 112 Tenn. 348, 79 S.W. 1031, 105 Am. St. Rep. 955; Hoffman v. Metropolitan Exp. Co., 111 A.D. 407, 97 N.Y.S. 838; Wabash, etc., R. Co. v. Black, 11 Ill. App. 465; Stewart v. Cleveland, etc., R. Co., 21 Ind. App. 218, 52 N.E. 89; Patterson v. Kansas City, etc., R. Co., 56 Mo. App. 657; Mills v. Weir, 82 A.D. 396, 81 N.Y.S. 801; Johnstone et al. v. Richmond, etc., R. Co., 39 S.C. 55, 17 S.E. 512. "As has been said by one court," says Elliott in his work on Railroads (vol. 4, sec. 1502a), "it would tend to disturb the force of all contracts if one in possession of ordinary capacity and intelligence were allowed to sign a contract and act under it in the enjoyment of all its advantages, and then to repudiate it upon the ground that its terms were not brought to his attention. In the absence of all fraud, misrepresentations, or mistakes, it must be presumed that he read the contract, and assented to its provisions." In the case at bar it is apparent that it was the desire of the shipper that his cattle should be forwarded on the train they did go, and that the haste was necessary in order that his wishes in that respect could be carried out. There is no charge of fraud on the part of the railway company or its agents in the matter, and there seems to be an entire lack of any of the other ordinary grounds for relieving a competent party from the performance of conditions contained in a contract voluntarily signed by him. The evidence shows there were in fact two tariff rates on live stock, one of them, the higher rate, at the carrier's risk, the other, the lower rate, one of limited liability.One of the sections of the special contract reads as follows:

"This application is an election on my part to avail myself of a reduced rate by making this shipment under the following contract, limiting the liability of such carrier, instead of shipping the same at a higher rate without such limitations."

¶2 And another section (section 15) is as follows:

"That in making this contract the undersigned owner, or agent of the owner, of the stock named herein, expressly acknowledges that he has had the option of moving this shipment under the tariff rate, either at carrier's risk or upon a limited liability named herein, and expressly accepts and agrees to all stipulations and conditions named herein."

¶3 If, under the doctrine heretofore adverted to, the shipper was bound by the other sections of the contract, he was also bound by the ones above quoted, and, of course, cannot repudiate them upon the ground that the terms of the contract were not called to his attention before he signed it. Having reached the conclusion that the special contract is binding upon the shipper, the question arises, Has ...