« PreviousContinue »
of the verbal notice was not sufficient, because or make a claim for compensation within a they say, if the contract and stipulation as to reasonable time after he has delivered the written notice is valid, then the inability to parcel to the carrier. There is great hardprocure writing materials at the instant of ship in requiring the carrier to account for unloading the cattle is no excuse for not giv the parcel long after that time, when he has ing notice for more than a year afterwards; had no notice of any failure of duty on his and in this case, no notice was given at the part, and when the lapse of time has made it time that the stock arrived at the destination, difficult, if not impossible to ascertain the acand were found to be injured, by the agent of tual facts. For these reasons, such limitathe consignor, nor at any time prior to the tions have been held valid in similar concommencement of this suit. In the case of tracts, even when they seem to be less reasonExpress Co. v. Caldwell, reported in 21 Wall. able than in the contracts of common carriers. 264, 22 L. Ed. 556, the Supreme Court of In Missouri Pac. Ry. v. Scott, 2 Willson's Civ. the United States say, on page 267 of 21 Wall. Cas. Ct. App. $ 324, the court says: "A ship(22 L. Ed. 556) of the opinion: “Hence, per must allege and prove giving of notice as as we have said, it is now the settled law that a condition precedent. Where there was a the responsibility of a common carrier may be stipulation' in the contract of shipment belimited by an express agreement with his tween plaintiff and defendant railroad comemployer at the time of his accepting goods pany that, as a condition precedent to plainfor transportation, providing the limitation be tiff's right to recover any damage for any such as the law can recognize as reasonable, loss or injury to stock, he would give notice and not inconsistent, with sound public pol in writing of his claim therefor to some officer icy.” In the case of York Company v. Cen of the company or its nearest station agent tral Railroad Company, 3 Wall. 107, 18 L. Ed. before removing said stock from the place of 170, the court says: "The common-law lia destination, a verbal notice given to the superbility of a common carrier may be limited intendent of the stockyard and the conductor and qualified by special contract with the of the train of his claim for damage is not owner, provided such special contract do not sufficient. Where a shipping contract proattempt to cover losses by negligence or mis vides that the shipper will give written noconduct.” In the case of Railroad Company tice of any injury to stock carried thereunder, v. Lockwood, 17 Wall. 357, 21 L. Ed. 627, the a verbal notice is not sufficient to entitle court says: "A common carrier is always plaintiff to recover.” responsible for his own negligence, no matter Now, in the light of these decisions, we what his stipulations may be. But an agree think that the demurrer interposed by the ment that in case of failure by the carrier to defendant at the conclusion of the plaintiff's deliver the goods, a claim shall be made by evidence should have been sustained. To the bailor, or by the consignee, within a spec hold that the facts as developed in this recified period, if that period be a reasonable ord constitute either a substantial compliance one, is altogether of a different character. It with the terms of the contract, or a waiver contravenes no policy. It excuses no negli thereof on the part of the company, would be gence. It is perfectly consistent with holding to allow a party to disregard a substantial the carrier to the fullest measure of good and material part of a valid binding contract faith, of diligence and of capacity, which the without the consent of the other party. It is strictest rules of the common law ever re the duty of the court to construe the contract quired. And it is intrinsically just as ap as made by the parties, and not to attempt to plied to the present case. The defendants make contracts for them. In this case, it is are an express company. We cannot close apparent from the record that this contract our eyes to the nature of their business. was fairly and understandingly entered into They carry small parcels, easily lost or mis by and between the parties. That it was laid, and not easily traced. They carry them done for the purpose of securing a reduced in great numbers. Express companies are rate for the transportation of the stock, and modern conveniences, and notoriously they contains unambiguous, clear, and concise are very largely employed. They may carry, agreements on the part of the shipper, among they often do carry hundreds, even thousands which was, that he would, within 30 hours of packages, daily. If one is lost, or alleged from the time of the arrival of the stock at to be lost, the difficulty of tracing it is in its destination, give notice in writing to the creased by the fact that so many are carried, company, or its agent, of any claim he might and it becomes greater the longer the search have for any damages, and he expressly prois delayed. If a bailor may delay giving no
vides that this shall be a condition precedent tice to them of a loss, or making a claim in to his right to recover. There is no claim definitely, they may not be able to trace the made that this was a provision that could not parcels bailed, and to recover them, if ac be complied with, neither is any claim made cidentally missent, or if they have in fact been that any attempt was made to comply with properly delivered. With the bailor, the bail this condition of the contract according to ment is a single transaction, of which he has the terms thereof. The condition of the stock full knowledge; with the bailee, it is one of at its destination was known to the consignee. a multitude. There is no hardship in requir He had the opportunity and the facilities of ing the bailor to give notice of the loss if any, giving the notice required by the contract,
and no exo-use is offered by him why he did injured party prior to his bringing any suit not at that time comply with the terms of his thereon, and we can see no difference in prinown contract; and we cannot hold that in ciple whether the contract is between a railthe face of the plain, unmistakable terms of road company on one side, and an individual this contract that the party can bring suit and on the other, than if it were between two inrecover for damages against the company dividuals. If the contract is a hardship, it is without any written notice of any kind or a hardship which the plaintiff has put upon character, or without making any claim upon himself, and he must abide the consequences. the company for damages prior to the bring He has expressly agreed that, before he shall ing of this suit. The evidence of the plaintiff commence any suit against the company for expressly admits the execution of this con damages, he would file his claim for damages tract and the shipment of the horses in ques
in writing, which he has not done; for that tion under it. IIe also admits that no writ reason, we think the demurrer of the defendten claim for damages was made as required
ant should have been sustained. A reversal by the contract, and in that evidence no ex
of this case is asked for on several other (use is offered why such claim should not grounds, among which is the fact that the have been made in the manner, and within
court overruled the motion of the defendant the time, as provided thereon. The evidence
for judgment on the special findings, notwithdoes not show that any verbal claim for any
standing the general verdict. Also, that the specific amount of damages, or that a claim
court erred in giving instructions to the jury; for damages which in any way itemized the
but as we think the grounds already discusskind and character of damages, was made by
ed are sufficient for a reversal of this case, the defendant in error within the time pro
it is not necessary to enter into a discussion vided by the contract, or at any time prior to
of the other points raised. the commencement of this suit.
For the reasons herein expressed, this case Now we are unable to see how there is any
is reversed, and remanded to the probate thing unjust, inequitable, or unfair in this
court of Oklahoma county, with directions to
that court to sustain the motion of the deprovision of the contract. These parties were
fendant for a judgment on the pleadings, at parties of mature age, and experience. They were capable of making a contract. As such,
the costs of the defendant in error. All the they entered into a contract which was clear
Justices concurring, except PANCOAST, J.,
who qualifies his concurrence as below. and unequivocal in its terms. By the very terms of that contract, it was expressly stip
PANCOAST, J. I concur in the opinion in ulates that this plaintiff would bring no ac
this case except upon the question of notice. tion for damages against the company, unless
The plaintiff should have pleaded the verbal he first notified the company, or its agent, in notice shown by the evidence to have been writing of his claim for damages. Now if
given. Had this been done, I am of the opinthis contract was between two individuals, ion that it should be held to be equivalent to we are unable to see how a court could possi the written notice provided for in the conbly hold that such an agreement was not a tract, and a sufficient compliance therewith condition precedent to be performed by the with reference to notice.
(44 Wash. 397)
clares the policy of the state in the matter CITY OF BELLINGHAM v. CISSNA. of the regulation of such vehicles. The ap(Supreme Court of Washington. Nov. 14, 1906.) pellant further contends that section 12 of MUNICIPAL CORPORATIONS USE OF STREETS
the act of 1905 deprives the city of any power -VALIDITY OF ORDINANCE.
to pass or enforce an ordinance requiring the Under Bal. Ann. Codes and St. $ 739, owner of an automobile to obtain a license granting to cities the power to control the use of their streets, an ordinance, making it un
to use the streets; or excluding from such lawful to drive an automobile on the street at
use of the streets any automobile whose a greater speed than six miles per hour, is owner has complied with the provisions of valid, notwithstanding Sess. Laws 190.), p. 203, said act. There is no contention but that apc. 1.31, providing that no driver in charge of an automobile shall permit it to be driven in
pellant was the owner of the automobile in the thickly settled portion of any city at a
question: that he kept it for his private use; greater speed than one mile in 5 minutes, nor that he held a certificate from the Secretary over any crossing faster than one mile in 1.3 of State under the act of 1905, and that he minutes, and also providing that cities shall
rode or drove his automobile over Holly have no power to pass any ordinance requiring of any operator of an automobile any license or
street at a greater rate of speed than six permit to use their streets or prohibiting any miles per hour. If section 2 of ordinance automobile "the free use of such” streets. No. 50 is valid, then the appellant was right
[Ed. Note.-For cases in point, see Cent. Dig. fully convirted. Otherwise he should be disvol. 36, Municipal Corporations, $ 1311.)
charged. Appeal from Superior Court, Whatcom Chapter 1:14, p. 293, session laws of 190., County: Jeremiah Keterer, Judge.
requires the owner of an automobile to file Ray Cissna was convicted of violating an a description thereof with the Secretary of ordinance of the city of Bellingham, forbid State, and obtain a numbered certificate for ding the driving of automobiles on its streets
whirl le pays a certain fee. By sektion 10 at a greater speed than six miles per hour, it is provided that no driver or operator in and appeals. Alfirmed.
charge of any automobile shall permit the Hardin & Hurlbut, for appellant. IIenry
same to be driven or operated within the C. Beach. for respondent.
thickly settled or business portion of any
city or village at a greater speed than one CROW, J. In August, 1904, the city of mile in 5 minutes, nor over any crossing or Bellingham enacted ordinance No. 39), ser- crosswalk within the limits of any city at a tion 2 of which made it unlawful for any rate faster than one mile in 15 minutes, when person to ride or drive an automobile on its any person is upon the same. By section 12 public streets at a greater rate of speel than it is provided that: “Cities, towns and counsix miles per hour. On May 5, 1906, a com- ties shall have no power to pass, enforce, plaint was filed before II. B. Williams, police or maintain any ordinance, rule, or regulajudge of Bellingham, charging that the de tion requiring of any owner or operator of any tendant, Ray Cissna, did, on May 4, 1906, automobile or motor vehicle, any license or ride and drive an automobile on Ilolly street permit to use the public roads, highways, in the city of Bellingham at a greater rate Dark, or parkways, streets, or avenues, or of speed than six miles per hour. On trial excluding or prohibiting any automobile or before the police judge, and also on a serond motor vehicle whose owner has complied with trial after appeal, in the superior court, the sections 2, 4 and 5, of this act from the free defendant was convicted and fined. From the use of sul public road, highway, park or final judgment of the superior court, this ap- parkway, street or avenue, and all such orpeal has been taken.
dinances, rules and regulations now in force Upon being arraigned, the appellant de are hereby declared to be of no validity or murred to the complaint on the grounds, (1) effect: Provided, That nothing in this act that the court had no jurisdiction of the per shall be construed as limiting the power of son of the appellant, or the subject-matter of local authorities to make, enforce and mainthe action; (2) that the respondent had no tain ordinances, rules or regulations, in adlegal capacity to bring this action; and (3) dition to the provisions of this art, affecting that the complaint did not state facts suthi automobiles or motor vehicles which are ofcient to constitute a misdemeanor, offense, fered to the public for hire." or cause of action. This demurrer which was The contention of the appellant is that as overruled by the police judge, was afterwards section 12 secures the free use of the public urged in the superior court, and again over roads, highways, parks, streets, etc., to the ruled. Appellant assigns error on the order owners of automobiles, the city council is overruling the demurrer, and contends that therefore prohibited from enacting any speed it questions the validity of said section 2 of ordinance such as the one here involved. We ordinance No. 50, which regulates speed in do not interpret this language as it seems to the driving of automobiles. He contends that be understood by the appellant. We underthe delegated power under which the city or stand the word “free” to be used for the purdinance was originally passed has, in so far pose of prohibiting a city from collecting any as automobiles kept for private use are con additional license or fee from owners of aucerned, been withdrawn by chapter 154, page tomobiles kept for private use or making the 293, Laws of 1905, which act he insists de payment of the same a condition precedent
to the use of its streets. We understand that are offered to the public for hire, but the dipayment of the certificate fee to the Secretary rect result of such an interpretation would of State entitles the owner of an automobile be to hold that although one citizen, driving kept for private use to the free use of all an automobile kept for private use only, streets and highways within the state, wheth would not be subject to municipal control in er within or without the corporate limits of the matter of speed, yet another citizen would any municipality. Although section 10 limits be subject to such control if he happened to the speed of automobiles to one mile in five drive an automobile which was offered to the minutes within the thickly settled or busi- | public for hire. An ordinance, regulating ness portion of any city, section 11 provides speed in the one instance and not in the oththat: “No person driving or in charge of any er, would be class legislation and invalid. automobile, or motor vehicle, on any high and a statute, authorizing such class legislaway, townway, public street, avenue, drive tion, would also be void. It is our duty to way, park or parkway, shall drive the same construe the statute in such a manner as to at any speed greater than is reasonable and sustain its validity if we can possibly do so. proper, having regard to the traffic and use Our view is that the proviso does not conof the way by others, or so as to endanger template ordinances, rules, or regulations perthe life or limb of any person; and racing taining to the speed of automobiles which are any such vehicle on any such way or parks offered to the public for hire. Such automois hereby forbidden." This section was un biles are in many respects similar in their doubtedly included in the act for the pur uses and purposes to other vehicles kept for pose of requiring drivers of automobiles to hire. The Legislature evidently intended that reduce their speed when necessary to even they might be subjected to like rules and reg. less than 12 miles per hour, and in its enact ulations by the local authorities in so far as ment the Legislature undoubtedly had in con the same might be practical. It is customary templation the safety of the general public for municipalities to regulate the rates of fare upon streets and highways, which are more charged by the owners of cabs, carriages, or or less crowded according to the frequency of other vehicles offered to the public for hire: their use and the density of population. By and to designate the stands or locations which section 739, Ballinger's Ann. Codes & St., pow they may occupy upon the public streets. We er has been granted to the city of Bellingham think regulations such as these, and others to regulate and control the use of its streets, that might be mentioned, are contemplated and that power still exists to its full extent by the proviso contained in section 12. The as then granted, unless it has been limited by ordinance in question was not annulled by the act of 1905. As section 11 seems to con the act of 1905. The statute merely prohibtemplate that it may at times become neces its the enactment of any ordinance requiring sary to require a less rate of speed than 12
any license or permit to use the public miles an hour, we fail to understand why streets. The ordinance in question does not the council of the city of Bellingham is not provide for any such license or permit, nor still entitled, under section 739, Ballinger's, does it exclude the appellant from the free supra, to pass and enforce an ordinance for
use of the streets of the city of Bellingham. the reasonable regulation of such speed, even This being true, we are unable to understand though fixed at less than 12 miles per hour. how it comes into conflict with the act upon We think the evident purpose of the act of which the appellant relies. If it had been 1905 was to provide a uniform system for the intention of the Legislature to provide the regulation of automobiles, and a single that no municipal ordinance, regulating speed certificate or license fee within the state. of automobiles, should be permitted, it could Otherwise the owner of an automobile kept have so stated. Having failed to do this, we for private use might be required to pay a think the construction contended for by the license fee in every city of the state through appellant cannot be sustained. which he might travel when using such ve The judgment is affirmed. hicle. We do not understand that the words "free use of such public road," etc., as em MOUNT, C. J., and DUNBAR, HADLEY, ployed in section 12, conferred upon the own FULLERTON, RUDKIN, and ROOT, JJ., er of an automobile an absolute right to trav concur. el the streets of any city.at such rate of speed as he might desire, provided he did not exceed 12 miles per hour, or that, by reason of
(44 Wash. 413) such enactment, the municipal authorities | ROWLAND v. P. P. CARROLL LOAN & INcould not by ordinance prevent him from so
VESTMENT CO. doing.
(Supreme Court of Washington. Nov. 14, 1906.) It might upon a casual examination of
CORPORATIONS — OFFICERS EMPLOYMENT OF the act of 1905, appear from the proviso
SERVANTS-AUTIIORITY. contained in section 12, that the state has
In an action by an employé for services reserved to itself the exclusive right to reg rendered a corporation under a contract made ulate the speed of all automobiles kept for
with the president thereof, it appeared that the
corporation maintained its office at the same private use only. while permitting local au
place its president maintained his office; that he thorities to regulate the speed of those which used the letter heads of the corporation in his
correspondence with the employé, that contracts ployed by it. It admits that a town was to were entered into in the name of the corpora be built at Harriman, but claims that P. P. tion with the acquiescence of at least 3 of the 5 trustees; that the employé was to act as civil
Carroll as an individual, and not the appelengineer for the company at a proposed town;
lant corporation, was carrying on the work that the secretary of the corporation prepared there, and that respondent if he was ema price list of the lots platted in the town; that
ployed at all was employed by said Carroll. the company dealt with the state with reference to the purchase of lands at the piace of opera
The P. P. Carroll Loan & Investment Comtion. It did not appear that the acts were au pany was incorporated under the laws of thorized at any formal meeting of the trustees. the state of Washington on July 30, 1903. Held, that the corporation was liable for the services rendered by the employé.
The following were the officers elected: TrusTEd. Note.-For cases in point, see Cent. Dig.
tees, P. P. Carroll, S. J. T. Carroll, F. M. vol, 12. Corporations, SS 1598, 1615, 1616.] Carroll, J. E. Carroll, 0. G. Carroll; Presi. Root, J., dissenting.
dent, P. P. Carroll; vice president, F. M. Car
roll: treasurer, 0. G. Carroll; secretary, Appeal from Superior Court, King County;
John E. Carroll. The main contention of George E. Morris, Judge.
the appellant is that the respondent does Action by 0. 0. Rowland against the P. P.
not show any authority in P. P. Carroll to Carroll Loan & Investment Company. From
employ him for the appellant corporation. a judgment for plaintiff, defendant appeals.
But the record discloses that the appellant Affirmed.
company maintained its office at the same Walter B. Beals, P. P. Carroll, and John E. place that P. P. Carroll maintained his office; Carroll, for appellant. J. B. Alexander, for that P. P. Carroll used the letter heads of respondent.
the company in his correspondence with re
spondent; that contracts were entered into DUNBAR, J. This action was brought by in the name of the company with the knowlrespondent against appellant to recover serv edge and acquiescence of at least three of ices as civil engineer alleged to have been the five trustees; that the other two trustees rendered appellant at the proposed town of did not testify at the trial; that John E. CarHarriman at what is called Doffiemyer's roll, secretary of the company, and son of Point in Thurston county. Respondent P. P. Carroll, president of the company, claimed to have been employed by appellant prepared a price list of the lots platted in the on April 1, 1904, at the agreed salary of $300 town of Harriman; that the appellant comper month, and to have continued in such pany dealt with the estate of Washington employment until August 31, 1904; and de with reference to the purchase of tide lands manded judgment for $1,355. The answer at the place of operation; that it took opwas a general denial. The case was tried tions on the land in its own name, and that by the court which found that the plaintiff the president and the respondent contracted at the special instance and request of the de for and purchased supplies for the enterprise fendant, acting through its duly authorizeil at Doffiemyer's Point, with the knowledge of president, P. P. Carroll, agreed to enter the the president and secretary of the company. employ of the defendant company as civil The record does not show that these particiengineer, and the engineer to be placed in lar acts were authorized at any formal meetcharge of the works and operations of the ing of the board of trustees, but it does show said company then and to be subsequently that by its action and acquiescence it clothed conducted at the proposed town of Harri its officer the president with authority to act man; that it was then and there agreed be for it, and if a corporation intentionally or tween the plaintiff and the defendant com negligently clothes its officer or agent with pany that the plaintiff should be paid a sal authority to act for it in a particular matary by the defendant of $300 per month; ter it wil be estopped to deny its authority that the plaintiff entered upon such employ as against persons dealing with him in good ment and performed service for three months; faith. 3 Clark & Marshall on Corporations, that by reason of such contract and render § 697. The record shows conclusively by the ing of service there became due from the de. whole course of conduct of the appellant fendant to the plaintiff the sum of $900; that company and its officers that at least a mano part thereof had been paid except the jority of the board were aware that P. P. sum of $145; that the sum of $755 is due Carroll was in charge of such an enterprise from the defendant to the plaintiff, and con in the name of the appellant company, and cludes as a matter of law that the plaintife that they consented to and acquiesced in his was entitled to judgment against the P. P. contracts and management and received the Carroll Loan & Investment Company, a cor benefit of the contract of employment sued poration, for the sum of $755 with costs and upon in this case. The record convinces us disbursements, and judgment was entered that the corporation authorized its president accordingly. From this judgment this ap and manager to conduct and manage the peal was prosecuted.
business of the town of Harriman, and that Defendant excepted to the findings of fact the contract entered into with the respondent and conclusions of law made by the court. was within the scope and contemplation of Appellant in its testimony denies that re such general management. “When an of. spondent or any other person was ever em ficer or agent is intrusted with the general