ERIE R. CO. v. POND CREEK MILL & ELEVATOR CO., 162 F. 878

GROSSCUP, Circuit Judge. The action in the court below was by the defendant in error, an Oklahoma corporation, against the plaintiff in error, a New York corporation, to recover damages for the loss of a certain shipment of flour from Pond Creek, Oklahoma, to New York, and resulted in a judgment for the value of the flour and interest from the date it ought to have been delivered.

The bills of lading showed that although received by the Chicago, Rock Island & Pacific Railway Company, the shipment was to be to New York via the Union Steamboat Line and the Erie Railway Company; and contained a provision that the company (the C., R. I. & P. Ry.

Co.) should not be responsible for any loss or damage by fire, unless it be shown that such damage or loss occurred through the negligence or default of the agents of the company. ■ There was no -evidence other than the delivery and acceptance of the bill of lading, tending to show that this provision was known to the defendant in error; also there was no evidence showing that the shipment was totally. destroyed by fire (the only evidence on that subject being-that it was in a fire).

But for the purpose of this opinion, we'asspme that the destruction- by fire at the transfer warehouse at Buffalo, where- it was unloaded from the steamboat, to be loaded on the cars of the railway company, wholly accounts for the non-delivery of the shipment at the point of destination. vSection 58,

article 5, of Wilson’s Rev. & Ann. St. Okl. 1903, on common carriers, is as follows: “A passenger, consignor, or consignee, by accepting a ticket, bill of lading or written contract for carriage, with a knowledge of its terms, assents to tiie rate of hire, the time, place, awl maimer of delivery therein stated.

But his assent to any other modification to the carrier’s right or obligations contained in such instrument can only be manifested by his signature to the same.'’ The contract between the parties is an Oklahoma contract, and to the extent that Oklahoma law is no invasion of the exclusive rights of the United States to regulate commerce between the states, is subject to Oklahoma law; and under the Oklahoma law above quoted, the exemption in the bill of lading plainly would not be binding upon the shipper, because he has not assented to the same in writing.

It is urged however, upon the authority of Richmond & Alleghany Railway Company v. Patterson Tobacco Company, 169 U. S. 311, 18 Sup. Ct. 335, 12 L. Ed. 759, that the Oklahoma statutory provision is a law of evidence only — does not in any way affect the contract, but only the vehicle through which the contract can he proven — and is therefore not binding upon the federal courts sitting outside of the slate. We cánnot concur in this view.

The Oklahoma statute does not forbid contracts looking to exemption from what would otherwise be the carriers’ obligation at common law; if it did, it might he an invasion of the power conferred itpon Congress; and that is the point decided in Richmond & Alleghany Ry. Co. v. Patterson Tobacco Company, supra.

Neither that case, nor any case called to our attention, prevents a state from providing that no contract made within its territory shall be effective unless it is reduced 1o writing, and signed by the parties to be affected — a reasonable provision that does not regulate commerce between the states, but only the method in which contracts relating to such commerce shall be manifested. This disposes of the merits of the ease. We think that on the authority of Northern Transportation Company v. Isaac H. McClary, 66 Ill. 233, there was no error in allowing interest upon the damages found.

The judgment of the Circuit Court will be affirmed.