Smith Meat Co. v. Oregon R. & N. Co.

117 P. 303, 59 Or. 206, 1911 Ore. LEXIS 125

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The judgment of the circuit court is correct. The evidence shows, without contradiction, that Davis Bros, were plaintiff’s agents in buying and shipping the cattle, and their contract was, therefore, its contract and binding upon it. York Co. v. Central Railroad, 3 Wall. 107 (18 L. Ed. 170).

2. The stipulation that a claim of injury shall be presented within 10 days and before the stock shipped shall have been mingled with other stock is a reasonable stipulation on its very face. Transportation companies can only do business through employees, and the location of these, as well as the time of their employment, is subject to change. It is only fair that, in cases of this character, the corporation should be seasonably notified that a claim for damages would be insisted upon, in order that a careful inspection of the animals and timely inquiry into the conditions attending their transportation may be investigated and the actual facts ascertained.

This is not a stipulation exempting the carrier from liability for negligence, but one giving it an opportunity to ascertain whether its servants have been, in fact, negligent. Such stipulations have been frequently upheld by the courts. Atlantic Coast Line R. Co. v. Bryan, 109 Va. 523 (65 S. E. 30); Austin-Stephenson Co. v. Southern Ry. Co., 151 N. C. 137 (65 S. E. 757); Anderson v. Lake Shore & M. S. Co., 26 Ind. App. 196 (59 N. E. 396); Smith v. Railway, 112 Mo. App. 610 (87 S. W. 9); Wichita & W. R. Co. v. Koch, 47 Kan. 753 (28 Pac. 1013); Wood v. Southern Ry. Co. 118 N. C. 1056 (24 S. E. 704); Southern Ry. Co. v. Adams, 115 Ga. 705 (42 S. E. 35).

In the case at bar Frank L. Smith, president of the plaintiff corporation, was personally present when the cattle were removed from the car and had ample opportunity to give the required notice and gives no sufficient reason for not doing so. For this reason the court below was justified in granting the nonsuit. This view renders it unnecessary to pass upon the remaining questions so ably presented by counsel.

The judgment is affirmed. Affirmed.