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tract, he cannot recover. No notice was introduced in evidence; neither did Crittenden show that he was unable, for any reason, to produce it, and offer to prove its contents by a copy or otherwise. These provisions of

facts sufficient to constitute a cause of action. This doctrine seems to be supported by the case of Express Co. v. Harris, 51 Ind.' 127; Insurance Co. v. Duke, 43 Ind. 318; and Railway Co. v. Morris, 16 Am. & Eng. R. Cas.

the contract are just and equitable. The 259. This also seems to be sustained by a

company is entitled to a written notice that provision of our own statute. Section 4326, the shipper claims damages, so as to permit Wilson's Rev. & Ann. St. 1903, reads as folthe company to have a thorough investiga- lows: "In pleading the performance of contion made of the nature of the claim and the ditions precedent in a contract, it shall be condition of the stock before the stock is re- sufficient to state that the party duly permoved from its premises, and before it is

formed all the conditions on his part, and, mingled with other stock, so as to render its if such allegations be controverted, the party identification difficult. Where stock is shin- pleading must establish on the trial the facts ped under written shipping contracts which showing such performance.” As we regard provide, among other things, that, as a condi

this provision of the bill of lading and the tion precedent to the right of the shipper to

shipping contract as a condition precedent recover damages for loss or injury to said necessary to be performed before the mainstock, he shall give notice in writing of his

taining of this cause of action, we think it claim therefor, the shipper must prove such

was incumbent on the part of the plaintiff notice to have been given before he can re

to plead a performance of that condition cover." In the case of Louisville, N. A. &

precedent, or a waiver of the same on the C. Ry. Co. v. Widman, 10 Ind. App. 92, 37

part of the defendant, and, he having failed N. E. 554, it is said by the Indiana court:

to do so, either in his petition, or reply, we “In an action for injuries to a mare shipped

think the pleading did not state a cause of under a bill of lading which provides that the

action in his favor, and it was error for the carrier shall not be liable for loss or damage

court to overrule the motion for judgment unless notified within 30 days, a complaint

on the pleadings in favor of the defendant. containing no allegation of notice or perform

The next assignment of error urged by ance by the plaintiff of all conditions on his plaintiff in error is that the court erred in part is demurrable.” In the case of Texas overruling the demurrer of plaintiff in error & Pac. R. R. Co. v. Hamm, 2 Willson's Civ.

to the evidence introduced by defendant in Cas. Ct. App. § 496, the court say: "In an error. The main ground on which this deaction against a railroad company for loss

murrer should have been sustained was the of cattle shipped over its line, the contracts

failure of the defendant in error to introduce of shipment offered in evidence contained any proof whatever that the written notice the following clause: "That, for the con- required by the contract executed by him sideration aforesaid, said second party fur- was given in accordance with the terms therether expressly agrees that, as a condition of. The record shows that the defendant precedent to his right to any damages for in error admitted that no written notice was any loss or injury to said stock during the in fact given. If the action of the court in transportation thereof, or previous to load- overruling this demurrer can be sustained. ing thereof for shipment, he will give notice

it must be on one of two grounds: First, in writing, verified by affidavit, of his claim that the facts and circumstances as develtherefor to some general officer of said first oped in evidence show that the plaintiff subparty or to the nearest station agent, before stantially complied with the requirements of said stock is removed from the point of ship

this contract. The

The record discloses that ment or from the place of destination, and when the horses in question reached their before the same shall have been removed, destination, that some conversation took * * * and that a failure to fully comply with

place between the agent of the company, and the terms of this clause shall be a complete the person to whom the horses were conbar to the recovery of any and all such signed, relative to their damaged condition. claims.' Held, that a notice of loss in writ- The testimony of the consignee is that he ing, verified by affidavit, was a condition

informed the agent verbally that the horses precedent to plaintiff's right of action, and were damaged, and that he would not accept not only should have been alleged, but must the same until he heard from the consignor; have been proved, to entitle plaintiff to re- that the agent of the company looked at the cover.” We take it to be the true rule of horses, and ordered them taken out of the car pleading that, where there is a condition pre- and fed and watered, the agent unlocking cedent to be observed before an action can the car for that purpose, and that the horses be maintained or a cause of action exist, the were appraised by three appraisers who were plaintiff must show that the condition has selected by the agent of the company. The been performed, either actually or substan- testimony of one of the appraisers is that tially, or that he has been in some way re- they appraised the horses under the direcleased from that condition by the act of the tion of the agent of the company, but that opposite party, and that, in the absence of the agent was not present when said appraisesuch averment, the petition does not state ment was made. The testimony of the other appraiser is that the horses were appraised notice was to be given was unreasonable, or under the direction, and at the instance and that there was no agent at the destination. request of Phillips, the consignee, and that No reason is assigned why the notice rewhile the agent of the company was present quired by the shipping contract and bill of he took no part in the appraisement.


lading could not have been given in the way record does not show that any notice in and within the time expressly provided for in writing was given to the company within 30 the contract. hours from the time the stock arrived at Now the only other ground on which the their destination, or at any other time prior action of the court in overruling this demurto the commencement of this suit. The rec- rer can be sustained is that the acts of the ord further shows that no claim for damage agent of the company at the point of destiwas ever filed with the company, verbal or oth- nation would amount to a waiver of this erwise. The testimony of Van Osdall, who provision of the contract. In determining was with Phillips, the consignee, at the time this question, we must bear in mind the lanthe horses were received by him, is that he and guage of the contract. On the face of this Phillips were both strangers there, and that contract, in large type, larger than the type the three appraisers were pointed out to in which the main body of the contract is them by the agent Hill as competent men to printed, and so placed upon the contract as make the appraisement. He testifies that no to be conspicuous, are these words: “No amount of damage was named by him in agent of this company has any authority to talking with the agent. Now the question is, waive, modify, or amend, any of the prowas this action on the part of the consignee visions of this contract." Now we think Phillips, a substantial compliance with the that this provision in the contract, placed in terms of the bill of lading and the shipping such a conspicuous manner on the face of contract, which expressly provided that, as a the contract, that the consignor with the excondition precedent to any right to recovery, ercise of any sort or kind of diligence must they should give notice in writing of the have been made aware of its existence; and claim. Was there action such as would rea- we do not think that the acts of the agent sonably apprise the agent of the company of the company disclosed by this record are at IIoxie, Ark., that they were making a claim such as to have waived this provision of against the company for damages? The only the contract so as to bind the railroad comclaim they made to him was that they would pany. The Supreme Court of this territory not receive the horses in their damaged con- in a recent decision, has clearly and expressclition until such time as they heard from ly passed upon this question of waiver. It Phillips, the consignor. No claim was filed

is true that the case then before the Supreme for any specific amount of damages, and, as

Court was the case of an insurance company, far as the record shows, no request was but we think there is no difference in princimade of the agent to notify the company of ple between that case and the case at bar. any claim for damages, and no claim was In the case of the Deming Investment Commade that the damaged condition of the

pany v. Shawnee Fire Insurance Company horses was due to any neglect or wrongful (decided in September, 1905) 83 Pac. 918, act of the company. It might reasonably this court says: “Where a waiver of the be said that these horses were damaged; and stipulations and conditions contained in a from the fact that no claim for damage was policy of fire insurance is relied upon as the filed with the company, that the company act and conduct of an agent of the insurance had a right to presume that the horses were

company, it must be shown that the agent damaged before they were taken for ship- had express authority from the company to ment by the company, or were damaged in make the waiver, or that the company subsome way for which the company was not sequently, with knowledge of the facts, ratiresponsible. But even granting, for the sake fied the unauthorized action of the agent. of argument, that a verbal claim was made, An agent for a fire insurance company, whose and that evidence on such verbal claim was powers are strictly defined and limited by the considered by the court, notwithstanding the express terms of the contract of insurance silence of the pleadings on that point, we cannot act so as to bind his company beyond think that such a notice, under the circum- the scope of his authority. A contract in stances as shown in the record in this case

writing, if its terms are free from doubt and would be inadequate to relieve the defendant ambiguity, must be permitted to speak for itin error from the terms of the contract. self, and cannot by the courts, at the inWhen the defendant in error signed his con- stance of one of the parties, be altered or tract and shipped his horses under it, he contracted by parol evidence, unless in case agreed to abide by its provisions. In the of fraud or mutual mistake of facts, and this contract stipulating that written notice of principle is applicable to contracts of inthe loss or damage must be made in a cer- surance.” If the rule were laid down that tain time, it does not contemplate or author- station agents of a railroad company, withize the giving of any other kind of notice, out express authority, could modify or change or in any manner except in the manner pro- the plain, unambiguous terms of a written vided for in the contract. There is no claim contract entered into with the company, and made in this case that the time in which / in variance with the express stipulations and conditions of the contract, the usefulness of and unload his stock at his own risk, and such contracts and the necessity of them feed, water, and attend to the same at his would be absolutely at an end. Such a doc- own expense. Ile was also to accompany trine would deprive the defendant company and care for the stock while it was being of the benefit of a contract which the courts transported over the defendant's road, and have repeatedly declared to be reasonable, for that purpose the railway company was to just, and valid. In the case of Sprague v. furnish the plaintiff free transportation over Missouri Pac. Ry. Co., reported in 8 Pac. 465, its road for one person from the point of the Kansas Supreme Court say: "In an shipment to the destination. Among the agreement between a railway company and a stipulations of the contract is the following: shipper for the transportation of horses over "And for the consideration before menthe railway, there was a stipulation which tioned, said party of the second part further provided that, as a condition precedent to his agrees that, as a condition precedent to his right to recover damages for any loss or in- right to recover any damages for any loss jury to the horses while in transit, the ship- or injury to said stock, he will give notice per would give notice in writing of his claim in writing of his claim therefor, to some offitherefor to some officer of the said railway cer of said party of the first part, or its nearcompany, or its nearest station agent, before est station agent, before said stock is rethe horses were removed from the place of moved from place of destination above mendestination, or from the place of delivery to tioned, or from the place of the delivery of the shipper, and before such horses were the same to the said party of the second part, mingled with other stock. Held, that the

and before such stock is mingled with other agreement is reasonable, and, when fairly stock." made, is binding upon the parties thereto."

The reply of the plaintiff was a general This case was a case very similar in its lenial, not verified. Upon the trial, it was facts to the case at bar. It was a case expressly admitted that the special contract brought in the district court of Cloud coun

set up in defendant's answer was signed ty, against the Missouri Pacific Railway Com- and executed by the duly authorized agents pany, alleging in substance that the defend

of the parties; and it was further admitted ant was a common carrier, and that on or that if the plaintiff is entitled to recover about the second day of March, 1883, for a

under the contract for the injuries alleged valuable consideration, the railway company by the plaintiff, the amount of such recovery undertook and agreed with the plaintiff to

should be $300. Testimony was then offered safely carry over its road from Atchison to

by the plaintiff, to the effect that the horses Concordia certain stock, goods, wares, and

were in good condition when delivered to merchandise; that he delivered the property

the railway company at Atchison, Kan. His mentioned for shipment, in good condition, at

brother was given a free pass over the road, Atchison, but the defendant negligently and and accompanied the train upon which the carelessly managed the car upon which the horses were shipped for the purpose of carproperty was shipped, and by reason of such ing for the stock while it was being transnegligence, and without any fault on the ported over the defendant's road. At severpart of the plaintiff, four of the horses so al points on the route, he inspected them and shipped by the plaintiff were thrown down, found them to be still in good condition. At bruised, and injured, so that one of them the station named "Palmer" some distance died, and the others were more or less dis- east of Concordia, the horses were again exabled, to the damage of plaintiff in the sum amined by the plaintiff's brother, and were of $500. The railway company denied the then all right; and that after returning to allegations of negligence, and the terms of the caboose, and before leaving that station the contract as stated by plaintiff, and al- he felt several jars, but was unable to state leged that the property had been shipped in what occasioned them, or whether the horses accordance with the terms of a special agree- were injured thereby. Upon arriving at Clifment entered into between the plaintiff and ton, the next station, he again examined the the defendant, wherein it was stated that the horses and found that some of them were company transported live stock only in ac- lying down and apparently injured. He then cordance with certain rules and regulations, demanded of the conductor that the car in which were mentioned; and that, in consid- which the horses were shipped should be eration that the defendant company would backed up to the stockyards in order that transport for the said plaintiff the said prop- the horses might be removed from the car. erty at the rate of $30 per car; the same This was done, when the horses were unloadbeing a special rate lower than the regular ed and found to be considerably bruised. rate mentioned in the freight tariff of the He then refused to reload the horses upon railway company, and other considerations, the car, took possession of them, and caused the plaintiff agreed to release the defendant them to be taken across the country to the from some of the responsibility and risks plaintiff's farm which was not far distant. imposed by law upon the railway company The plaintiff further testified that when the when acting as a common carrier. The con- car reached Concordia, he paid the price tract is set out at length in the answer, and agreed upon for the transportation of the it provided that the plaintiff should load same, but that no notice had ever been given

to the conductor of that train, or to any officer or agent of the railway company, prior to the commencement of this action, that he claimed any damages for injury to his stock; that he knew the condition of the horses, and the extent of the injury to them, before they were taken to the farm, and yet he had not given any notice of any claim therefor.

When the plaintiff closed his testimony, the railway company interposed a demurrer to the evidence, which the court, after consideration, sustained. Upon this ruling the plaintiff raises and discusses several questions here; but as one of the disposes of the case, the others require no attention. If the contract of the parties is to be upheld, by which it was agreed that before the plaintiff could recover damages for any injury to his horses, he must give notice in writing of his claim therefor to some officer of the railway company, or to its nearest station agent, before the horses were removed from the place of destination, or from the place of the delivery of the same to the plaintiff, and before they were mingled with other stock, then the demurrer to the evidence was rightly sustained, and the judgment should be affirmed. The plaintiff contends that the agreement is not binding upon him, because it is not one permitted by the laws to be made, and for the further reason that it is without consideration. As a general rule, common carriers are held liable as insurers, and are absolutely responsible for any loss to the property intrusted to them, unless such loss is occasioned by the act of God or the public enemy. It is now a well-established rule of law that this liability may be limited to a certain extent; but, to accomplish this, it must clearly appear that the shipper understood and assented to the limitation. Common carriers are not permitted, by agreement or otherwise, to exempt themselves from liability for loss occasioned by their negligence or misconduct. Such limitations are held to be against the policy of the law, and would be void. But it is no longer questioned that they may, by special agreement, stipulate for exemption from the extreme liability imposed by the common law, provided that such stipulations are just and reasonable, and do not contravene any law or a sound public policy. That the agreement in question was executed by the plaintiff is admitted, not only by the pleadings, but it was expressly agreed to by him on the trial. There is no pretense that any deceit or fraud was practiced upon him by the railway company, in obtaining his assent to the agreement. So far as appears in the testimony, it was fairly and understandingly entered into and executed. His authorized agent who accompanied the horses, and who had them in charge while passing over defendant's road, knew of this provision of the contract, and was acquainted with the condition of the stock before they were taken from the pos

session of the railway company.

And the plaintiff, with full knowledge of this requirement, paid the freight charges agreed upon after the injury had been done without complaint, and without claiming any damages therefor, and gave no notice nor did he make any claim for damages prior to the commencement of this action. The stipulation requiring notice of any claim for damages to be given cannot be regarded as an attempt to exonerate the company from negligence or from the negligence or misfeasance of any of its servants. The conpany concede that such an agreement would be ineffectual for that purpose. It is to be regarded rather as a regulation for the protection of the company from fraud and imposition in the adjudgment and payment of claims for damages by giving the company a reasonable opportunity to ascertain the nature of the damage and its cause. After the property has been taken from their possession, and mingled with other property of al like kind, the difficulty of inquiring into the circumstances and character of the injury would be very greatly increased. That such a provision does not contravene public policy, and that it is just and reasonable, has been expressly adjudicated by this court.

Now a comparison of the facts, or at least many of the facts in the case under consideration by the Kansas court. are similar to the facts in this case. In this case, as in that, there is no evidence of any deceit or fraud being practiced on the plaintiff by the railroad company in obtaining his assent to the agreement. That the consideration of the agreement was a reduced rate of freight, and that such agreement was entered into by the plaintiff with a full understanding that he was making an agreement to ship this stock under a contract that limited the liability of the company in case of loss or injury, and that by reason of that liability he was securing a reduced rate. This is apparent when we read the contract; for, on the face of the contract is the following language: “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." The case of Goggin v. Kansas Pac. Ry. Co.. reported in 12 Kan. 416, was an action brought to that court to review the decision of the district court sustaining a demurrer to the reply. The plaintiff in error sued defendant in error, alleging that he had sustained damages through the carelessness and negligence of the defendant in the transportation of cattle over its road. The company in its answer sets up a written contract of shipment, signed by both parties, by which the cattle were to be carried from Ogden to the state line, at special rates per car load, to be accompanied by the owner, and fed, watered, and cared for by him, in consideration of the

special reduced rates. The contract stipu- | cattle over its road, which were shipped furlates that the company shall not be liable for ther to market, or so commingled with other loss by animals injuring themselves, or each stock that it would be impossible to distinother, or by jumping from the cars, delay of guish one car load from another, unless attrains, or other damage, "except such as tention was called to them immediately; may result from the actual negligence of the and the object of the notice was to relieve company, or its agents.” There is also a the company from false and fictitious claims, stipulation that "no claim for loss or dam- by having an inspection before they were reage on live stock will be allowed, unless the moved or mingled with other cattle, and same is made in writing before or at the proper damages ascertained and allowed time the stock is unloaded." (It will be no- of which reasons the plaintiff had full knowl. ticed that this contract is almost identical edge, and still chose to ship at reduced special with the one in the case at bar). The reply rates. The reasons are cogent, and we are unadmits the making of the contract set out able to see how it contravenes public policy in the answer, but alleges that the plaintiff that a special contract at reduced rates should signed the same under protest after the cattle stipulate that reasonable notice of injury were in the car; that plaintiff also verbally should be given. We are unable to perceive notified the servants of the company of the any stronger objection to such a contract damage before the cattle were unloaded from than exists in the case of any other insurer the cars; and immediately after giving ver- of goods to which the carrier's obligation is hal notice, sought for writing materials to analogous, and which depends altogether upmake out a written notice to serve on the on the contract of the parties. New Jersey agents of the company, but before he was Steam Nav. Co. v. Merchants Bank, 6 How. able to find the materials, and write the no- 382, 12 L. Ed. 465. But such a contract tice, the cattle were unloaded, so that no should be reasonable, and not such as to be notice was given. The reply controverts no a snare or fraud upon the public. What is statement in the answer. A demurrer was a reasonable time must depend on many sustained. Then the court say: "If the de- circumstances. In this case the plaintiff fense set up in the answer is a good one, then accompanied the cattle, feeding and superthe reply does not avoid it. It is no excuse intending them; and, by his reply, admits for not performing a contract that it was that he knew of the injury at the time of signed under protest. The plaintiff had his the unloading, and could have given the nooption to have his cattle transported at the tice immediately had he chosen to do so. usual rates, and hold the company respon- Unless the notice was given immediately, it sible as a common carrier, or at special would be of no value to the defendant. Unrates on lower terms, and with less respon- der these circumstances, we cannot hold that sibility on the part of the carrier. He chose the time when the notice was to be given was the latter, and cannot now avoid his contract unreasonable. Of course, it is not underby saying he signed under protest. Neither stood by the phrase, before or at the time is the reason given for not giving the writ- the stock is unloaded' that it must be the ten notice sufficient. If the contract stipula- identical moment, but so immediately that tion as to written notice is valid, then the the object sought by the notice can be attaininability to procure writing materials at the ed. Now would such a notice be reasonable instant of unloading of the cattle is no ex- in the case of an ordinary shipper who did ('use for not giving the notice for more than not accompany and superintend his stock, a year afterwards. If the stipulation is not nor would it probably prevent a recovery for valid, then no notice was necessary.

injuries sustained which could not readily be presents the real question in the case. The seen and actually should not be discovered stipulation as to notice contravenes no stat- till the time for giving the notice had exute. The parties were competent to make pired. Yet, in such a case, good faith would the contract and did make it, and it must be require notice so soon as the injury was held good unless it is contrary to public poli- known. So far as we have been able to see, cy. How far a common carrier may limit the authorities are in accordance with the his responsibility by special contract is not views presented." involved in this case, for the pleadings do Now the strong resemblance between this not raise that issue. It is undoubtedly set- case and the case at bar will be noticed. The tled that the common carrier may relieve contracts were almost identical. The liabilhimself from the strict liability imposed on ity is the same. The damage was known to him by the common law, by a special contract; the consignee who was the agent of the conbut it seems that he cannot relieve himself signor at the time the stock arrived at its from liability for his own negligence. The destination, The claim is made in the case contract pleaded does not pretend to relieve at bar that verbal notice was given. The the defendant for the consequences of his own record shows that no other or different notice negligence. It only stipulates that the ship- was ever given the company prior to the comper shall on his part perform certain duties. mencement of this suit, and it seems to us The reasons for this clause are set out in that it falls fairly within the case under the answer, as follows: The defendant was consideration by the Kansas Supreme Court. engaged in transporting great numbers of And that court expressly says that the giving

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