dissenting:
I cannot agree with the conclusion that the ruling of the federal courts is to the effect that the plaintiff cannot recover. This conclusion appears to have been reached by analogy only. As I read the federal cases, none of them apply to a state of facts like those shown to exist here. Those concerning the time within which an action can be brought can have no application. Likewise, those holding that an arrangement granting special privileges to one shipper not awarded to others is void, in my opinion, are not applicable. Neither do those concerning the waiver of the notice cover the questions of estoppel by acting upon the verbal notice, nor the question concerning the actions of the company, which caused the shipper not to give the notice. These questions are raised in this case.
The opinion states that the plaintiff, in his replication, pleads a waiver of the provisions of the contract pertaining to notice. The replication does not so state; but, as allowed by our Code, it alleges the facts which took place between the plaintiff and the defendant, through its agents, from which it is readily apparent that the plaintiff was lulled into a feeling of security that the company would adjust the claim without a written notice, which caused him to give the question of notice no further consideration at that time. From these facts several conclusions can be drawn (a) That the company waived the provisions of the contract pertaining to notice, (b) If the agents were without this power and for that reason the waiver did not bind the company, then the company accepted something in lieu of the written notice, which, in this case, was just as good, and which they acted upon, and which, so far as the notice was concerned, performed the same purpose, viz., gave it the opportunity to examine the stock before it was removed from the company’s yards or intermingled with other stock and within the time provided by the shipper’s contract. This an agent of the company, by special instructions from the general office, did, for which reason it appeals to me that the company *57is thereby estopped from claiming that it did not have the benefit of the written notice. This question has never been passed upon by the federal courts in any case cited or which I have been able to find. The law never requires a useless thing, and unless the Supreme Court of the United States holds to the contrary, I will continue to thus believe, (c) The testimony is overwhelming concerning the damage to the stock, the company’s violation of an interstate commerce act concerning shipments of this kind, etc. It also discloses that Kansas City was the terminus of defendant’s road for this shipment, at which point the horses were unloaded by its agents; that after being unloaded, the plaintiff immediately went to defendant’s general office and told them that he had two carload of horses there, and explained to them how he had been treated; that they had been forty-five and one-half hours on the track, standing at one time ten hours without feed or water, and that the company could keep them, etc.; that they said it was not necessary to have any trouble, etc.; that they would go' down and look at them; that they sent an agent down with him; that they ran the horses out of the corral, one by one, and examined them; that this agent said, “Well, Mr. Miller, there is no doubt you are entitled to some damages; now I will tell you what we will do, you know what you* paid for them, you take them on and sell them, and whatever you lose on these cars of horses, you keep track of and you come back here and the Santa Fe Company will settle with you right, whatever is fair and right we will do about it;” that in answer the plaintiff said, “I don’t like to do that”; that in response the representative of the company said, “Now we will do it, you come right back here and hunt me up,” etc. The record discloses that, relying upon this assurance, the plaintiff took the horses on to final destination, and soon thereafter notified the company in writing of the extent of his loss, etc.
When we consider that a railroad company must, of necessity, act through agents, and that the plaintiff gave *58notice to those in charge of its general offices in Kansas City and that the representative of the company, who lulled him into this feeling of confidence, was sent from that office to inspect the stock, and that it was through his representations and assurances that the plaintiff was persuaded to continue with the stock instead of leaving it upon the company’s hands; under.such circumstances, to hold that the defendant is not estopped from raising the question of written notice, is, in say opinion, to hold that the interstate commerce acts can be used to allow transportation companies to perpetrate fraud upon their patrons. Certainly such was never intended. In my opinion, the rule of estoppel is applicable here, and to so hold does not present a case of discrimination.
The Supreme Court of the United States has held where a shipper secures the lower of two rates by misrepresentations as to the value of his goods and a loss follows, that he is estopped from claiming a greater value, although this releases the carrier from a portion of the loss due to its negligence, which could not be thus accomplished except under the rule of estoppel. Wells-Fargo Co. v. Neiman Marcus Co., 226 U. S. 469, 57 L. ed. 600, 33 Sup. Ct. 267. It will be observed that by this opinion the matter is essentially one of estoppel and not one of discrimination, though a discrimination might be involved. I am of opinion that this ruling is applicable here, and that the plaintiff is as much entitled to an estoppel as the transportation company was in the case cited, and that it does not show a discrimination in one case any more than in the other, and to so hold, in my opinion, would be to grant a preference to the transportation company in the one case not awarded to the shipper in the other through a distinction which, in fact, fails to create a difference.
The provisions in the shipper’s contract concerning notice was evidently intended to protect the carrier from improper or unconscionable claims, etc., under circumstances where it would have no means of rebutting proof available. Such was not the case here. The carrier had *59notice at its general office; verbal, ’tis true. And possibly the federal courts may hold that it did not have to act upon this notice, but in this case it did act, it secured all the information that a written notice would have given, but it did not stop there, by its assurance that the claim would be properly .adjusted, it persuaded the shipper to continue with his shipment, thereby inducing him to fail to give the notice, without which it now claims that he cannot recover. No decision of the Supreme Court of the United States has been cited to the effect that under such circumstances the defendant is not estopped to take advantage of its own wrong, or that to prohibit it from so doing would be a discrimination prohibited by an interstate commerce law.
Decided March 6, A. D. 1916. Rehearing granted July 3, A. D. 1916. Judgment reversed March 5, A. D. 1917.In my opinion the reasoning in A., T. & S. F. Ry. Co. v. Robinson, 36 Okl. 435, 129 Pac. 20; Cockrill v. M., K. & T. Ry. Co., 90 Kan. 650, 136 Pac. 322; Hardin v. Mo. Pac. Ry. Co., 120 Mo. App. 203, 96 S. W. 681; Cumbie v. St. L., I. M. & S. Ry. Co., 105 Ark. 406, 151 S. W. 237; Kelly v. So. Ry. Co., 84 S. C. 249, 66 S E. 198, 137 Am. St. Rep. 842; Baldwin v. Atlantic Coast L. R. Co., 170 N. C. 12, 86 S. E. 776; Mewborn & Co. v. L. & N. R. Co. et al., 170 N. C. 205, 87 S. E. 37; Shaw v. S. Ry. Co., 17 Ga. App. 79, 86 S. E. 95; and Nashville, C. & St. L. R. Co. v. Truitt, 17 Ga. App. 236, 86 S. E. 421 — are in part applicable to the facts here, but .this case goes farther than the facts covered by the reasoning in the cases cited. It presents a state of facts whereby the refusal to apply the rule of estoppel is to allow the defendant to receive the benefit of its wrongful act, without which it would not have been possessed with this advantage.