In a petition for rehearing defendant earnestly insists that this case is ruled by the case of Missouri, K. T. Ry. Co. v. Ashinger, 63 Oklahoma, 162 P. 814, L. R. A. 1917D, 1180, rather than by Chicago, Rock Island Pac. R. Co. v. Harrington, 44 Okla. 41, 143 P. 325; the latter case having been followed in the opinion affirming the judgment.
It is contended by defendant that the shipment of cattle involved in this action, being moved from Mena, Ark., to Wynona, Okla., was an interstate shipment, without regard to the fact that the bill of lading issued by the defendant to the plaintiff covered only an intrastate transportation of said cattle, and therefore that the rule of law applied in the Harrington Case is not applicable to the instant case. In the case of Missouri, K. T. R. Co. v. Ashinger, supra, the question involved was the right of a passenger, who had purchased a ticket from Oklahoma City, to Colbert, Okla., at the intrastate rate, and who, at Atoka, Okla., had determined to continue his journey to Denison, Tex., to be carried upon the unused portion of his ticket to Colbert, Okla., and from there to Denison, Tex., at the interstate rate. It was held by this court that from Atoka the plaintiff was conveyed as an interstate passenger, and could be required to pay the interstate rate from Atoka to Denison. Mr. Justice Hardy, who delivered the opinion, cites a number of cases from the United States Supreme Court in support of the conclusion reached, but the cases cited in the opinion and cited in the petition for rehearing by the defendant seem to be cases involving freight and passenger rates, and involving the federal control of commerce, interstate in character, which may have been carried from point to point under local bills of lading.
It is urged by counsel for defendant as a ground for rehearing that the instant case was determined upon a theory not considered by either of the parties in the trial court. It is well to bear in mind the assignment of error presented by the defendant upon which this question arises. The defendant assigned error in the striking from its answer of three contracts between the plaintiff and the defendant, exhibited as a part of the answer, and the allegations therein with reference to said contracts. The question presented to this court on this assignment of error was whether or not the trial court erred as a matter of law in striking such matter from defendant's answer, and not whether the trial court was right in the theory upon which he made his order.
It may be conceded that this shipment of cattle was an interstate shipment, and yet defendant's assignment of error would not be well taken, for the reason that its answer does not plead the terms of any contract for interstate shipment, and the pleadings in the record do not show the provisions of any contract covering the interstate shipment of these cattle that could avail the defendant as a defense. On the contrary, defendant expressly alleges in its answer that it carried these cattle from Muskogee to Wynona under the contracts between plaintiff and defendant exhibited in its answer. It is true the *Page 41 answer alleges the shipment of cattle by various carriers from Mena, Ark., to Wynona, Okla., and alleges that defendant was engaged in interstate commerce, and alleges a reduced rate of freight as a consideration for these contracts pleaded. There is nothing, however, in the answer to advise the court of any conditions under which these cattle were carried in interstate commerce, except the contracts between plaintiff and defendant made a part of the answer, and these contracts for the transportation of this freight show that they were made between plaintiff and defendant for intrastate carriage.
The facts in the instant case are on all fours with the case of Chicago, Rock Island Pac. R. Co. v. Harrington, supra. In this case the plaintiffs pleaded the shipment of two cars of mules from Hico and Dublin, Tex., to Frederick, Okla.; that said mules were carried by the Texas Central Railway Company, and delivered to the St. Louis San Francisco Railroad Company, which delivered them at Ft. Worth to the Chicago, Rock Island Pacific Railway Company. At Lawton a bill of lading was executed between the plaintiffs and the St. Louis San Francisco Railroad Company, for said mules to be delivered at Frederick. Upon this state of facts, Mr. Commissioner Thacker, who wrote the opinion of the court, says:
"The defense of the latter company is predicated upon a contract which it alleges the plaintiff made with it for the transportation of the mules from Lawton, Okla., to Frederick, Okla., without alleging that this contract was in aid of, or in any manner connected with, any interstate shipment or contract. There is nothing in this purported contract, * * * which so much as suggests that it is in any way connected with, or has any relation to, the interstate shipment bill of lading or contract made at Dublin * * * for the shipment from Texas to Oklahoma; but, to the contrary, this contract, upon which the St. Louis San Francisco Railroad Company relies, purports to be an intrastate contract for shipment from Lawton to Frederick, Okla."
In the instant case the contracts relied upon by the defendant do not refer in any way to the interstate shipment of these cattle, nor is it alleged that they were executed by the defendant in performance of any contract of interstate carriage; but, on the contrary, it is alleged that the cattle were received and carried by the defendant under the terms of the contracts between plaintiff and defendants covering an intrastate carriage. It follows that, as the defendant did not plead any contract covering interstate carriage of these cattle, but, on the contrary, alleged that they were received and carried by the defendant under the terms of the contracts between plaintiff and defendant covering an intrastate carriage, the action of the trial court in striking the part of the answer complained of must be considered under the law applicable to contracts relating to intrastate carriage of freight.
Counsel for defendant urge that, even conceding that the contracts relied upon were for the intrastate carriage of these cattle, the provisions of such contracts pleaded by it are still valid and effectual, and constitute a bar to plaintiff's action. Counsel rely upon section 828, Rev. Laws 1910, in support of this contention. Section 828 is as follows:
"A bill of lading is an instrument in writing, signed by a carrier or his agent, describing the freight so as to identify it; stating the name of the consignor and the terms of the contract for carriage, which may include reasonable requirements as to notice and demand of damages; and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place."
This section of our statutes was not in force at the time the case of Chicago, Rock Island Pacific Railway Company v. Harrington, supra, arose, and therefore was not considered in that case. The case of Missouri, K. T. R. Co. v. Chowning, 62 Oklahoma, 162 P. 1105, was written after the adoption of this section of our statute; but the attention of the court does not seem to have been called to it, and its effect is not considered in that case.
It is urged by counsel for defendant that the provision in section 828, supra, "which may include reasonable requirements as to notice and demand of damages," meets the provision of section 9, art. 23, Constitution of Oklahoma, cited in the opinion, and is a provision by law for such notice and demand of damages. Counsel for defendant has cited no authority in support of this contention, and we do not believe it to be well founded. The provision of section 9, art. 23, of the Constitution, supra, is:
"That any provision * * * stipulating for notice or demand other than such as may be provided by law * * * shall be null and void."
It is clear from a reading of this section that no notice or demand other than that provided by law may be required as a condition precedent to recovery. The section of the statute relied upon by the defendant purports *Page 42 to authorize contracts of carriage of freight to include reasonable provisions as to notice and demand of damages. It does not attempt to provide for notice or demand as a condition precedent to liability, and therefore does not meet the requirements of section 9, art. 23, of the Constitution, and so far as authorizing any provisions as to notice of demand other than provided by law to be inserted in the bill of lading is in conflict with the Constituton.
The petition of defendant in error for rehearing should be denied.
On Second Petition for Rehearing.