Wall v. Northern P. Ry. Co.
| Citation | 145 P. 291,50 Mont. 122 |
| Decision Date | 18 December 1914 |
| Docket Number | 3439. |
| Parties | WALL v. NORTHERN PAC. RY. CO. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Gallatin County; B. B. Law, Judge.
Action by R. P. Wall, as administrator of the estate of R. J. Wall deceased, against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Hartman & Hartman, of Bozeman, and Gunn, Rasch & Hall, of Helena, for appellant.
Walter Aitken, of Belgrade, for respondent.
On January 2, 1912, R. J. Wall shipped four car loads of beef cattle from Belgrade, Mont., to the Chicago market over the Northern Pacific Railway as the initial carrier. The shipment did not reach its destination until January 15th, and this action was instituted to recover damages which it is alleged resulted from unreasonable delays due to the railway company's negligence. From the judgment in favor of plaintiff and from an order denying it a new trial, the defendant appealed.
The complaint counts upon the carrier's common-law liability. The answer sets forth a special contract under which, it is alleged, the shipment was made, and the execution of this contract is admitted by the reply. Appellant insists that the plaintiff was bound by the special contract; that he cannot sue for a breach of the carrier's common-law duty; and that, by pleading a tort and proving a breach of the contract, a fatal variance resulted. The precise question was presented fully, considered at great length, and determined adversely to appellant, in Nelson v. Great Northern Ry Co., 28 Mont. 297, 72 P. 642. A review of that decision confirms us in its correctness, and further discussion would be of no avail.
Paragraph 6 of the contract pleaded provides:
"(6) The said shipper further agrees that as a condition precedent to his right to recover any damages for loss or injury to any of said stock, he will give notice in writing of his claim therefor to some officer or station agent of the said company before said stock has been removed from the place of destination or mingled with other stock."
In a few instances, provisions similar to this have been held to be in the nature of statutes of limitations; but the decided weight of authority holds, and the better reason is, that their effect is simply to limit the carrier's common-law liability. That a common carrier may by special contract limit the liability which it would otherwise incur, provided the terms of the special agreement are reasonable, was recognized in the Nelson Case and is the generally accepted doctrine in this country. 4 Rul. Case Law, §§ 230, 253. Whether such special contract is or is not valid depends upon its reasonableness; and this question is always referable for solution to the facts and circumstances of the particular case. Queen of the Pacific, 180 U.S. 49, 21 S.Ct. 278, 45 L.Ed. 419.
At the time the contract in question was executed at Belgrade, the shipper and agent for the carrier understood that the line of the Northern Pacific Company did not extend to Chicago, and that from the Minnesota transfer, near St. Paul, to Chicago, the stock would go forward over another line, the Chicago, Burlington & Quincy, which was designated in the contract as the connecting carrier. Notice of this claim was given on January 25th, but in the answer it is alleged that such notice was not given until long after the cattle in question had been removed from the place of destination and mingled with other stock, and this is admitted by the reply. If the paragraph above means anything, it required the shipper to give notice in writing to an officer or station agent of the Northern Pacific Company. Notice to an agent of the Burlington Road would not have been effective for any purpose. The company mentioned in paragraph 6 is defined by the preamble to the contract to mean the "Northern Pacific Railway Company." Furthermore, if this provision is valid, it must be so construed as to serve some purpose. Its evident purpose was to enable the carrier to investigate the condition of the stock, and to that end the shipper was required to keep them separate until such investigation was made or a reasonable time therefor had elapsed. By the facts before us the reasonableness of the provision is to be tested. The contract is silent upon the question of service of the notice. If personal service was necessary, the shipper was required to hold the cattle at the Union Stockyards until he could find an officer or station agent of the Northern Pacific Company. No particular officer or station agent is designated, and, if this provision is to be taken literally, the shipper was required at his peril to assume the burden of finding some person who answered the description given. There is not a suggestion in the contract, in the pleadings or the proof, that the Northern Pacific Company had an officer or station agent at Chicago, or nearer than St. Paul, the eastern terminus of its road--more than 400 miles away. If service could have been made by mail, plaintiff would have been in no better position, though doubtless a letter written to the station agent at Belgrade, and mailed postpaid at Chicago, would have sufficed for a literal compliance with the terms of this provision. But, in any event, plaintiff would have had to bear the burden of keeping his cattle on the cars or in the stockyards until the notice had been received and a reasonable time for inspection had elapsed. If the paragraph in question be construed to mean that a written notice mailed from Chicago to any station agent of the Northern Pacific Company, even the agent at Seattle, would suffice, it is senseless. If it is construed to mean that the shipper should travel from Chicago to St. Paul and make personal service of the notice upon an officer or station agent of the Northern Pacific Company, then it is unreasonable to the point of being unconscionable. Whether the company had an officer or station agent at Chicago--at a point where it has no road--upon whom service of this notice could have been made, was a matter peculiarly within its own knowledge, and for this reason the burden was upon it to make proof of such fact.
If the carrier was negligent, resulting in unreasonable delay in the shipment and consequent damage, plaintiff's cause of action for a breach of common-law duty was complete without reference to notice. To escape liability, the burden was upon the carrier to plead and prove such a special contract as would effect a modification of the duty imposed by the common law. In the Nelson Case, Mr. Commissioner Poorman, voicing the opinion of the court, said:
The validity of paragraph 6 above depends upon its reasonableness, and it was therefore incumbent upon the carrier to show that it was relieved by the provision of a contract valid; in this instance reasonable. Houtz v. Union P. R. Co., 33 Utah, 175, 93 P. 439, 17 L. R. A. (N. S.) 628, and note.
In Missouri P. Ry. Co. v. Harris, 67 Tex. 166, 2 S.W. 574 there was presented a case in all particulars...
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