Chicago, R. I. & P. Ry. Co. v. Thompson

Decision Date14 November 1906
Citation97 S.W. 459
PartiesCHICAGO, R. I. & P. RY. CO. et al. v. THOMPSON.
CourtTexas Supreme Court

Action by C. B. Thompson against the Chicago, Rock Island & Pacific Railway Company and another. The Court of Civil Appeals affirmed a judgment in favor of plaintiff (93 S. W. 702), and defendants bring error. Reversed.

N. H. Lassiter, Robert Harrison, and J. H. Barwise, Jr., for plaintiffs in error. Stewart & Templeton, for defendant in error.

WILLIAMS, J.

The defendant in error applied for and received from plaintiffs in error at Chickasha, Ind. T., employment in the capacity of brakeman. His application, which constitutes a part of the contract of employment, contained this stipulation: "In further consideration of my employment, I agree that if, while in the service of the said company, I sustain any personal injury, for which I shall or may make claim against said company for damages, I will within thirty days after receiving such injury, give notice in writing of such claim to the general claim agent of said company, at Chicago, for injuries occurring in Illinois or Iowa, and to the general attorney of said company, at Topeka, for injuries occurring elsewhere on the system, which notice shall state the time, place, manner, and cause of my being injured, and the nature and extent of my injuries, and the claim made therefor, to the end that such claim may be fully, fairly, and promptly investigated; and my failure to give notice of such claim in the manner and within the time aforesaid shall be a bar to the institution of any suit on account of such injuries." He was afterwards, in Oklahoma Territory, hurt while performing his duties to plaintiffs in error under the contract, and brought this action and recovered the judgment before us for damages upon the ground that his injury resulted from the negligence of defendant in failing to exercise proper care in keeping its track in safe condition. At the trial the defendant offered in evidence the contract above stated, together with evidence to show that it was valid under the laws of the Indian Territory and of Oklahoma, and that the notice had not been given as agreed upon; all of which facts had been pleaded in the answer. This evidence was excluded upon the objections urged by the plaintiff. The Court of Civil Appeals held that this ruling was justified by article 3379 of the Revised Statutes of 1895 of this state, which provides: "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid, unless such stipulation is reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void, and when any such notice is required, the same may be given to the nearest or any other convenient local agent of the company requiring the same. In any suit brought under this and the preceding article it shall be presumed that notice has been given, unless the want of notice is specially pleaded under oath."

The stipulation was regarded by the Court of Civil Appeals as affecting only the remedy, in analogy to the statute of limitations, and as being controlled by the law of the forum. The evident purpose of the stipulation was to secure notice to the employer of the claim of the servant that it was liable for an injury suffered by him in order that opportunity might be given for prompt investigation and ascertainment of the facts affecting the claim. Phillips v. W. U. Tel. Co., 95 Tex. 643, 69 S. W. 63. It fixes no time within which suit must be brought after notice has been given, leaving the plaintiff free to sue within the time allowed by law. But it attaches to the failure to give the notice the effect of "a bar to the institution of any suit on account of such injuries." The bar is not to arise from lapse of time, merely, but from the failure to do that which the parties agreed on as essential to the right to have a determination by suit of the question of liability for the injury. Its effect if enforced according to its terms, was either to prevent the accrual of liability, or to put an end to all further question of liability after the expiration of the prescribed time without notice. Whether it had the effect first mentioned, as contended by plaintiffs in error, or the latter, as contended...

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21 cases
  • Grace v. Orkin Exterminating Co.
    • United States
    • Texas Court of Appeals
    • January 14, 1953
    ...agreement, the law of that state was appplied. We note that the injury occurred in Oklahoma. Chicago R. I. & P. R. Co. v. Thompson, 100 Tex. 185, 97 S.W. 459, 460, 7 L.R.A.,N.S., 191, involved to some extent the exception noted in the Morgan case, and the court held that performance of an i......
  • Home Ins. Co. v. Dick
    • United States
    • Texas Court of Appeals
    • May 3, 1928
    ...valid under the laws of such other state," in support of which the leading case relied upon is Railway v. Thompson, 100 Tex. 185, 97 S. W. 459, 7 L. R. A. (N. S.) 191, 123 Am. St. Rep. 798. On the contrary, we think the quoted provision in this insurance contract must be held to be purely o......
  • Tucker v. Texas Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 8, 1953
    ...378.1, p. 1288; Mexican National Railroad Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 31 L.R.A. 276; Chicago, R. I. & P. Ry. Co. v. Thompson, 100 Tex. 185, 97 S.W. 459, 7 L.R.A., N.S., 191. The Texas Workmen's Compensation Act, however, provides that, if an employee hired in Texas sustain inj......
  • Wells Fargo Bank & Union Trust Co. v. Titus
    • United States
    • U.S. District Court — Southern District of Texas
    • September 22, 1941
    ...extends ordinarily only to rights; it does not embrace remedies, 9 Tex.Jur. § 4, p. 356. In Chicago, R. I. & P. Ry. Co. v. Thompson, 100 Tex. 185, 97 S.W. 459, 7 L.R.A.,N.S., 191, 123 Am.St.Rep. 798, it was held that a contract of employment, providing that any suit for injuries should be b......
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