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

• Decision Date: 21 December 1915
• Docket Number: 5487.
• Citation: 153 P. 1156,54 Okla. 482,1915 OK 1070
• Parties: ST. LOUIS & S. F. R. CO. v. WYNN.
• Court: Oklahoma Supreme Court

153 P. 1156

54 Okla. 482, 1915 OK 1070

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

No. 5487.

Supreme Court of Oklahoma

December 21, 1915

Rehearing Denied Jan. 11, 1916.

Syllabus by the Court.

The jurisdiction of the county court must be determined by the amount sued for, exclusive of interest.

In an action in damages upon a contract for an interstate shipment of live stock, section 9, article 23 of the Constitution of this state has no field of operation.

A provision in a contract of an interstate shipment of live stock, which provides 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 such agents of the carrier as may be named in the contract, before such stock is removed from place of destination and before such stock mingles with other stock, such notice to be served within one day after the delivery of such stock at destination, is valid.

Commissioners' Opinion, Division No. 1. Error from County Court, Comanche County; H. N. Whalin, Judge.

Action by W. T. Wynn against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and J. H Grant, both of Oklahoma City, for plaintiff in error.

B. M Parmenter, of Lawton, for defendant in error.

COLLIER C.

This is an action brought by defendant in error, hereinafter called plaintiff, against plaintiff in error, hereinafter called defendant, to recover in the county court of Comanche county the sum of $983.38 and interest, under an interstate shipment of live stock. Said contract of shipment provides:

"13. 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."

Defendant demurred to the jurisdiction of said county court, upon the ground that the amount sued for with interest at 7 per cent. was in excess of the jurisdiction of said court, which demurrer was overruled and duly excepted to.

The evidence shows, and it is admitted in brief of plaintiff, that as to one of said shipments embraced in this action, no written notice was given as provided by said section 13 of the contract of shipment above quoted. There was evidence as to the damages sustained by plaintiff by reason of the improper handling of said live stock while in transit, which, under the view we take of the case, we deem unnecessary to recite.

Upon conclusion of the evidence, the court, among others, gave the following instruction to the jury, which was duly excepted to:

"No. 7. The court further instructs you that one of the defenses interposed by the defendant to each of plaintiff's several causes of action is a special contract with plaintiff attempting to limit plaintiff's right to a cause of action for damages depending upon notice in writing of his claim to some general officer of the company or the nearest station agent or agent at destination and within one day after its delivery at destination. Said special contract is designated as section 13, set out in the contracts under the several causes of action in plaintiff's petition. The court instructs you that section 9 of article 23 of the Constitution of Oklahoma is as follows: 'Any provision of any

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