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

• Decision Date: 10 November 1909
• Citation: 105 P. 322,25 Okla. 227,1909 OK 300
• Parties: ST. LOUIS & S. F. R. CO. v. CAKE.
• Court: Oklahoma Supreme Court

105 P. 322

25 Okla. 227, 1909 OK 300

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

Supreme Court of Oklahoma

November 10, 1909

Syllabus by the Court.

Where an action is brought against a railroad company to recover damages for deterioration in the value of a shipment of live stock, alleged to be caused by the carrier negligently delaying and failing to forward said shipment with reasonable dispatch, and where the petition alleges that said live stock were shipped under a special contract with the carrier, but that the plaintiff could not set out a copy thereof in his petition for the reason that the same was in writing and in the possession of said carrier, and where the contract thus referred to is set up in the answer of the defendant and a copy thereof is attached to said answer as an exhibit, and where such contract contains a provision "that, as a condition precedent to a recovery for any damage or delay loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer, or the nearest station agent of the first party, or to the agent at destination, or 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 written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated, and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims," and where it is alleged in said answer that this provision of the contract has not been complied with and where the plaintiff files a reply setting up only a general denial, such written contract is thereby admitted and where neither the petition nor the reply contains an allegation of compliance with the conditions of the contract and the said pleadings on the part of the plaintiff contain no allegation of waiver of such contract, and no facts are alleged therein tending to show an actual or substantial compliance with the said contract, and no excuse is offered or set up in the pleadings for the noncompliance, said pleadings do not state a cause of action in favor of the plaintiff, and a motion for judgment for the defendant on the pleadings should be sustained, in the absence of any request for leave to amend by the plaintiff.

Error from District Court, Grant County; Wm. M. Bowles, Judge.

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

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error.

F. G. Walling, for defendant in error.

KANE C.J.

This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover damages to live stock shipped by the plaintiff over the defendant's railway, from Salt Fork, Okl. T., to Kansas City, Mo. The petition alleges, in substance: That on the 29th day of October, 1905, the plaintiff delivered to said defendant, at Salt Fork, for transportation from said station of Salt Fork to Kansas City, Mo., two car loads of cattle, consisting of 58 head; that said defendant then and there received for transportation said stock; that said stock at said time were in good marketable condition; that at an intermediate point between said stations, to wit, at Latham Kan., said defendant company's agents, servants, and employés then and there having full and complete possession of said stock, and after notifying plaintiff that they had said possession and promising to feed and care for said stock properly, unloaded same from the cars of the defendant company and placed said stock in pens without cover or protection during a hard rain, and kept said stock in said pens without suitable care and protection and without food and water for a period of 40 hours; that the snow and mud in said pens where said cattle were so held by said defendant company during said period of time was of the depth of two feet; that the company, in gross violation of its obligation as a common carrier and of the express promise of the defendant's servants, as aforesaid, and of its contract with the plaintiff to transport said cattle with all reasonable dispatch, and to properly care for and protect said stock on said route during the course of said transportation, negligently delayed and failed to forward said shipment with reasonable dispatch; that said stock when finally delivered to the consignee at Kansas City, Mo., were in an unfit and unmarketable condition, and by reason thereof said plaintiff was compelled to place said stock on the market in an unfit and unmarketable condition; that said stock had shrunk in weight, and did not bring on the market the price they would have brought had they been delivered in good condition; and that by reason of this diminution in value the plaintiff was damaged in the sum of $500. Plaintiff further alleged that said stock were shipped under a special contract with the defendant, but that he could not set out a copy thereof in his petition for the reason that the same...