Missouri, K. T. R. Co. v. Williamson

RUMMONS. C. (after stating the facts as above). , The first assignment of error urged by the defendant complains of the ruling of the court in striking from its answer the al *38 legations with, respect to the written contracts under which it alleged that it carried these cattle. In the briefs of the parties this assignment of error is discussed upon the theory that this was an interstate shipment of cattle, and defendant relies upon the cases of Missouri, Kansas & Texas R. Co. v. Skinner, 61 Oklahoma, 160 Pac. 875, and Midland Valley Railway Co. v. Ezell, 62 Oklahoma, 162 Pac. 228, as authority for the proposition that the dipping of these cattle was a part of the contract of carriage and covered by the contracts entered into between plaintiff and defendant. The answer of the defendant, however, discloses that the contracts upon which they rely are not for interstate shipment, but for an intrastate shipment. The contracts as exhibited as a part of defendant’s answer were executed by plaintiff and defendant at Muskogee, Okla., to carry the cattle to Wynona, Okla. The decisions of this court upon contracts for the carriage of live stock in interstate commerce based upon the Carmack Amendment to the Interstate Commerce Act, therefore, have no application to the instant case. It is, on the other hand, ruled by the case of Chicago, Rock Island & Pacific Railway Co. v. Harrington, 44 Okla. 41, 143 Pac. 325, where it is held: “In respect to intrastate shipments and contracts, any provision, express or implied, ‘stipulating for notice or demand other than as may be provided by law, as a condition precedent to establish any claim, demand or liability, shall be null and void,’ under- section 9, art. 23 (section 358, Williams’ Ann. Ed.) Constitution of Oklahoma.” This case has been followed by this court in Mo., Kan. & T. R. Co. v. Chowning, 62 Oklahoma, 162 Pac. 1105. The defenses pleaded by the defendant under the contracts made a part of its answer were: First, the contracts provided that the shipper should load and unload the cattle and should feed and water said live stock and attend to them when in the carrier’s stock yards, pens, or cars at his own cost and expense. Second, that the shipper would furnish reports signed by himself and the parties in charge of said live stock to the conductor of the train at the end of each division as to the condition of said live stock; that the shipper would be estopped from denying the truth of such reports, and his failure to furnish such reports would be conclusive evidence that said live stock was in good condition. Third, that the shipper should give notice in writing to the conductor in charge of the train or the nearest station or freight agent of the carrier of all injuries or damage to said live stock before such live stock was removed from the pens at destination. Fourth, that the shipper should give notice in writing of all damages to the nearest station or freight agent within five hours after said stock were delivered. Fifth, the shipper should within thirty days after the happening of an injury or delay file with a freight or station agent of the carrier a written claim for such damages. Sixth, that no suit should be maintained unless instituted within 91 days after the happening of the injury complained of. As to the first of the defenses stricken by the court, it is possible, that such defense was properly pleaded; but inasmuch as the plaintiff in his amended petition assumed the duty of watering the cattle while in transit and in the pens of the defendant and only complains of the defendant for its failure to permit him to water said cattle or afford him an opportunity so to do, any error there might have been in striking this paragraph of the answer resulted in no prejudice to the defendant and is therefore harmless. As to the remaining defenses set up in the answer based upon the contracts of carriage, they all fall within the rule laid down in Chicago, R. I. & P. R. Co. v. Harrington, supra. All of the provisions urged, except the last one limiting the time within which action must be instituted, stipulated for notice and are in conflict with section 9, art. 23, of the Constitution and are therefore null and void. In Gray v. Reliable Insurance Co., 26 Okla. 592, 110 Pac. 728, Mr. Justice Williams, who delivered the opinion of the court, says: “Section 9 of article 23 of the Constitution of this state provides that ‘any provisions of any contract or agreement, express or implied, stipulating for notice or demand otherwise than as may -be provided by law, as a condition precedent to establish any claim, demand or liability, shall be null and void.’ The obvious intention of this provision was to prevent the abridging of the time within which rights under the law may be enforced, and also to prevent any notice being required after a breach of a duty imposed by law as a condition precedent to maintaining an action therefor.” With this interpretation of section 9, art. 23, of the Constitution, it is apparent that the last provision of the contracts urged by the defendant as a defense is also in conflict with said section. It is clearly an attempt to abridge the time within which rights under the law may be enforced. So that whether the defendant be correct in its view that the dipping of the cattle was a part of the contract of carriage or the plaintiff be correct in his view that it was an independent contract, the court committed no error in strik- *39 lug from the answer of the defendant the defenses based upon the provisions of the contracts of carriage. It is next urged by counsel for defendant that the court committed error in refusing certain instructions requested by the defendant and in giving certain instructions given by the court. The instructions requested by the defendant present in different forms the proposition that there was no duty upon the defendant to water the cattle or to furnish the plaintiff facilities for watering the cattle before the same were dipped. The instructions given of which complaint is made are as follows: “(7) You are instructed that under the evidence in this case the defendant, Missouri, Kansas & Texas Railway Company, owed to the plaintiff the duty of exercising ordinary care in the dipping of the plaintiff’s cattle; that is, such care as an ordinarily prudent and reasonable person would have exercised with reference to his own cattle under the same or similar circumstances. And if the defendant failed to exercise such ordinary care, it was guilty of negligence, and if, as the result thereof some of the plaintiff’s cattle died, then and in that event your verdict should be for the plainitff and against the defendant. And in this connection you are instructed that if you find and believe, from a fair preponderance of the evidence, that the cattle of the plaintiff, at the timei they were dipped by the defendant compány, wei*e in a condition of extreme thirst, or were in a famished condition for the want of water, and that the employes of the defendant, whose duty it was to dip the said cattle, knew of the said condition of the cattle, and you further find and believe from a fair preponderance of the evidence, that cattle in the condition that the plaintiff’s cattle then were in would drink of any liquid through which they were driven, or in which they were submerged, and that the employes of the defendant company, whose duty it was to dip the said cattle, knew or had notice of such fact, and you further find and believe from a fair preponderance of the evidence, that the said cattle, if watered at a reasonable time before dipping, would not drink of the arsenical solution in which they were to be dipped, and you further find and 'believe from the evidence thát the employes of the defendant company knew, or in the exercise of ordinary care must have known, of sueh fact, then and in that event it was the duty of the employes of the defendant company to water the said cattle, and if you further find and believe from a fair preponderance of the evidence in the case that, because of the failure of the employes of the defendant company to water the said cattle, some of the cattle of the plaintiff drank of the arsenical solution in which they were dipped by the defendant company, and died as the result thereof, then and in that event your verdict should be for the plaintiff and against the defendant. “(8) You are instructed that it is not claimed or charged by the plaintiff that the defendant company was guilty of any other negligence in the dipping of the plaintiff’s cattle than the failure to water the said cattle before dipping the same, and before you would be warranted to find a verdict for the plaintiff you must find from a fair preponderance of the evidence that a person of ordinary prudence and intelligence, under the circumstances, would have watered the said cattle before dipping them, and that the defendant company failed to water the said cattle and that as the proximate result of such failure to water the cattle, the said cattle, or some of them drank of the arsenical solution in which they were dipped, and died as the result thereof.” Under these instructions the court advised the jury that the defendant owed the plaintiff the duty of exercising ordinary care in dipping his cattle; that, if they believed that at the time said cattle were dipped they were in á condition of extreme thirst, and the employes of the defendant engaged in dipping the cattle knew of said condition, and if they found that, if they were ha the condition the plaintiff claimed they were in, they would drink of any liquid in which they were dipped and that the employes of the defendant, whose duty it was to dip said cattle, knew such fact, and if they further found that said cattle, if watered at a reasonable time before dipping, would not drink of the solution in which they were dipped, and that the employes of the defendant knew, or in the exercise of ordinary care ought to have known, of said fact, it was the duty of the defendant to water said cattle, and that if the jury found that because of the failure to water the cattle some of them drank of the solution in which they were dipped, and died therefrom, they must find for the plaintiff. The eighth instruction 'briefly presents the same view of the law to the jury. We are of the opinion that the defendant clearly owed the plaintiff the duty to exercise ordinary care in dipping his cattle; that it was the duty of the defendant to exercise such care as a reasonably prudent person would exercise in the circumstances of the case. From the evidence of the plaintiff the agents of the defendant were advised of the thirsty condition of the cattle and the probability that they would drink of the solution in which they were dipped unless tbey were watered 'before being dipped. They were requested by the plaintiff to afford him an 'Opportunity to water said cattle before dipping commenced. Whether the contracts relied upon by the defendant imposed- the duty of watering the cattle upon plaintiff or *40 not, when said cattle were in charge and in possession of the defendant, the defendant owed plaintiff the duty to afford him reasonable opportunity to perform the duty imposed upon him. The evidence of the plaintiff shows that, although the attention of the defendant’s agents and employes was called to the probable consequences of dipping these cattle without their being watered, they refused to delay the dipping long enough to permit plaintiff to haul water for his cattle. The question of what is ordinary care under the circumstances of each case is for the jury to determine, and we think the instructions complained of fairly presented this question to the jury, and the trial court committed no error in giving them. It is finally urged by defendant that the court erred in refusing to direct a verdict for the defendant. In support of this assignment it is contended that there was no evidence that any of the cattle drank of the solution contained in the dipping vat, and that the evidence is not sufficient to support a finding that the cattle died because of drinking such solution. Under the familiar rule that where there is competent evidence which, together with the logical inferences that maj? be drawn therefrom, will reasonably sustain the verdict of the jury, this court will not disturb such verdict (Chicago, Rock Island & Pacific R. Co. v. Newburn, 39 Okla. 704, 136 Pac. 174 ; Reed v. Scott, 50 Okla. 757, 151 Pac. 484), we are of the opinion that, while the record contains the evidence of no witnesses who testified to seeing the cattle drink, the jury might logically from the evidence deduce the inference that the cattle did drink of the solution. The jury had before it the evidence of the plaintiff and defendant as to the cause of • the death of these cattle. This evidence being in conflict, we are unwilling to disturb the verdict. The judgment of the trial court should be affirmed. By the Court: It is so ordered.