Opinion
No. 20751
Opinion Filed December 20, 1932. Rehearing Denied February 28, 1933.
(Syllabus.)
1. Appeal and Error — Review of Law Action — Sufficiency of Conflicting Evidence to Support Verdict.
In an action at law, where a question was presented involving the sufficiency of the evidence to support the verdict and judgment, this court will not resolve any mere conflict in the testimony in favor of an aggrieved party, but where there is evidence in the record which reasonably tends to support the verdict, this court will sustain a judgment based thereon.
2. Carriers — Action for Damages to Cattle Shipment From Negligent Handling — Shipper Held not Required to File Claim as Specified in Contract.
Under a uniform shipper's contract based upon Act of Congress March 4, 1915, 38 Stat. at L. 1196, amendatory of former acts, a plaintiff is not required to file a claim within time specified in the contract where the loss or damage for which recovery is sought occurred while a shipment of cattle was in transit as a result of the carelessness or negligence of the carrier.
Appeal from District Court, Rogers County; Wayne W. Bayless, Judge.
Action by Hartley Brothers, a co-partnership, composed of F.M. Hartley and T.H. Hartley, against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Thomas B. Pryor and W.L. Curtis, for plaintiff in error.
Robson Moreland, for defendants in error.
Judgment below was in the sum of $1,750 and interest, based on loss of 92 head of cattle occasioned by the carelessness and negligence of the appellant carrier in handling said cattle while in transit from Little Rock, Ark., to Delaware, Okla.
The defendant denied generally and relied upon a defense that not its carelessness and negligence in handling in transit of the cattle caused the damage, but that it was caused by the poor and weakened condition of the cattle and by the dipping of them prior to transportation. The jury determined this issue in favor of plaintiff, and there is evidence to support the verdict. Cardwell-Lyman Sales Co. v. Liebman, 110 Okla. 21, 236 P. 16; St. L.-S. F. Ry. Co., v. Rundell, 108 Okla. 132, 235 P. 491.
Error is predicated upon the instructions given and refused by the trial court. This alleged error is a contention regarding the requirement of notice in writing of claim for loss and damage sustained in shipment under the uniform live stock contract pursuant to federal acts relating to interstate commerce.
The court below instructed that the requirement of such notice by the contract might be waived when the injury was manifest. See St. L. S. F. Ry. Co. v. Ladd, 33 Okla. 160, 124 P. 461; Harn v. Smith, 85 Okla. 137, 204 P. 642; Kerr v. Aetna Casualty Surety Co., 124 Okla. 112, 254 P. 105.
It is our view that a decision as to waiving of notice in the contract presented is not necessary to the determination of this cause, for the recovery herein sought was for damage in transit occasioned by the negligence and carelessness of the defendant carrier.
The Act of Congress, March 4, 1915, 38 Stat. at L. 1196, amendatory of former acts, in our opinion, eliminates the necessity of notice in certain events as a condition precedent to recovery.
The proviso of that act reads:
"Provided, however, that if the loss, damage or injury * * * was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery."
In Barrett v. Van Pelt, 268 U.S. 85, 69 L, Ed. 857, this proviso was construed to mean:
"That carelessness or negligence is an element in each case of loss, damage or injury included therein, and that in such cases, carriers are not permitted to require notice of claim or filing of claim as a condition precedent to recovery." Davis v. Roper Lbr. Co., 269 U.S. 158, 70 L.Ed. 209; Haley v. Oreg. Short Line R. Co., 253 Fed. 569; Radovsky v. N.Y., N.H. H. R. Co. (Mass.) 154 N.E. 334; Hunt v. Hines, Director Gen., (Mo. App.) 223 S.W. 798; Wichita Ry. Co. v. Davis (Tex. Civ. App.) 275 S.W. 169; Reedy v. Mo. P. R. Co. (Kan.) 255 P. 683.
Finding no reversible error in the trial court's instructions, the judgment is affirmed.
CLARK, V. C. J., and HEFNER, CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., not participating. LESTER, C. J., absent.
Note. — See under (1) annotation in 69 A. L. R. 179; 2 R. C. L. 204; R. C. L. Perm. Supp. p. 377; R. C. L. Pocket Part, title "Appeal," § 173. (2) R. C. L. Perm. Supp. p. 1216.