St. Louis & San Francisco R. R. Co. v. Phillips

• Decision Date: 05 September 1906
• Citation: 1906 OK 68,87 P. 470,17 Okla. 264
• Parties: ST. LOUIS & SAN FRANCISCO R. R. CO. v. PHILLIPS.
• Court: Oklahoma Supreme Court

1906 OK 68

87 P. 470

17 Okla. 264

ST. LOUIS & SAN FRANCISCO R. R. CO. v. PHILLIPS.

Supreme Court of the Territory of Oklahoma

Decided: September 5, 1906

Syllabus by the Court.

¶0 Where an action is brought against a railroad company to recover damages for the killing and injury of certain horses shipped over the road, and where the petition alleges that the horses were shipped under the terms of a written contract between the plaintiff and defendant evidenced by a bill of lading, and where the same is attached to the petition, marked "Exhibit A" and made a part thereof, and where said bill of lading contains the provision, "No carrier shall be responsible for loss or damage of any of the freight shipped, unless it is proved to have occurred during the time of its transit over the particular carrier's line, and of this, notice must be given within 30 hours after the arrival of the same at destination," and where written across the face of such bill of lading are the words "released per contract," 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 damages for 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, unverified, such written contract is thereby admitted, and where neither the petition or the reply contains an allegation of compliance with the conditions of the bill of lading or 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 bill of lading or contract and no excuse is offered or set up in the pleadings for their 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 allegation for leave to amend by the plaintiff.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 1067.]

The responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy. Hence, an agreement that, in case of failure by the carrier to deliver goods, he shall not be liable, unless a claim shall be made by the bailor or by the consignee within a specified period, if that period be a reasonable one, is not against the policy of the law, and is valid.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 669, 670.]

The common-law liability of a common carrier for the safe carriage of goods may be limited and qualified by special contract with the owner, provided such special contract does not attempt to cover losses occasioned by neglect or misconduct.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 637, 654- 659.]

A stipulation in a contract of affreightment of live stock, requiring the owner to give notice in writing of his claim for damages to some officer of the company or its nearest station agent, before the stock is removed from the place of destination, is a reasonable stipulation and binding on the owner, and he cannot recover on failure to give such notice, though he did not go in person, or send an agent, with the stock, as in such cases he should have sent a copy of his contract to the consignee, in order that the latter might have complied with the stipulation.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 938.]

Whether the time provided by the contract for giving notice of loss is reasonable or unreasonable is a question of fact to be determined by the circumstances of the case.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 732.]

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

T. F. McMechan, for defendant in error.

IRWIN, J.

¶1 The plaintiff in error seeks a reversal of this judgment on six different grounds: First. That plaintiff in error was entitled to judgment on the pleadings in said cause, and the court erred in overruling his motion therefor. Second. The court erred in not sustaining the objection of the plaintiff in error to the introduction of any evidence by the defendant in error, on the grounds that the pleadings did not state a cause of action in favor of the plaintiff. Third. The court erred in overruling the demurrer of the plaintiff in error to the evidence. Fourth. The court erred in refusing the peremptory instruction asked by plaintiff in error, and in giving the instructions to the jury that were given. Fifth. The court erred in not sustaining the motion of plaintiff in error for judgment on the special findings, notwithstanding the general verdict. Sixth. The court erred in overruling the motion of plaintiff in error for a new trial in said cause.

¶2 The first and second assignments of error may very properly be discussed as one, as the same proposition of law is involved in both, and practically the same state of facts is presented thereby, to wit, that the pleadings of the defendant in error were wholly insufficient to state a cause of action, and for this reason the defendant was entitled to a judgment on the pleadings. The amended petition set up a copy of the bill of lading for the shipment in question which contained a clause requiring the shipper, as a condition precedent to claiming damage, to give notice thereof within 30 hours after the arrival of the same at destination, and said bill of lading specially referred to another contract in these words, "released per contract," which words were written plainly across the face of the bill of lading. Record, p. 10. The answer of the railroad company set up a copy of the contract referred to, alleged its execution by the plaintiff, Phillips, and specially alleged the failure of the plaintiff to comply with the condition precedent in his said contract. The reply filed to this answer by plaintiff was a general denial, unverified, and therefore admitted the execution of said contract as alleged, under the statutes of this territory. Wilson's Rev. & Ann. St. Okl., 1903, § 4312, reads as follows: "In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." Therefore, the execution of the contract being admitted, and the bill of lading referring thereto and containing practically the same provision in regard to notice as a condition precedent to any claim for damage accruing to the shipper, the compliance with said condition precedent, and with the terms of said contracts, could not be predicated or gathered from a general denial. It would certainly seem to be the duty of the defendant in error, upon admitting the execution of the contract, to either especially allege compliance with the terms thereof, or to especially plead some of the facts, if any such there were, which might tend to show a substantial compliance with the terms of said contract, and which might tend to relieve him from compliance therewith, or he should, in some form, have alleged a waiver of the terms of said contract on the part of the defendant. Neither of these things were done by the defendant in error. Now it is a well-recognized principle of pleading, that where a party relies for his cause of action upon a breach of a written contract, the burden is upon him to allege and prove every material element necessary to his recovery thereunder. In other words, before he can complain of a breach of contract on the part of the other party, he must show that he has actually or substantially complied with the terms of the contract himself, or has been released therefrom by the other party. Now, in this case, this bill of lading, and the reference of the shipping contract contained therein, was first brought into the case by the plaintiff in his petition, and was attached to the petition of the plaintiff as an exhibit, and made a part thereof. Upon this bill of lading, and its accompanying contract of shipping, the plaintiff based his cause of action. This, of itself, would put upon the plaintiff the responsibility of proving compliance with the material parts of said contract on his part. This is peculiarly true when we remember that the noncompliance with the essential parts of this contract was alleged in the answer of the defendant. The plaintiff's attention was called to the particulars in which he had failed to comply with the contract, and his attention was challenged to that proposition by the answer of the defendant. Then no legal denial of the contract was pleaded, no claim of compliance, either actual or substantial, and no claim of...