Atchison, T. & S. F. Ry. Co. v. Word

• Decision Date: 03 May 1913
• Citation: 159 S.W. 375
• Parties: ATCHISON, T. & S. F. RY. CO. et al. v. WORD.
• Court: Texas Court of Appeals

159 S.W. 375

ATCHISON, T. & S. F. RY. CO. et al. v. WORD.

Court of Civil Appeals of Texas. Amarillo.

May 3, 1913.

Rehearing Denied May 31, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by C. T. Word against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiff, defendants, except the Ft. Worth & Denver City Railway Company, appeal. Affirmed.

Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, Terry, Cavin & Mills, of Galveston, and T. B. McCormick, of Dallas, for appellants. W. Boyce and Turner & Wharton, all of Amarillo, for appellee.

HUFF, C. J.

The appellee, C. T. Word, sued the Ft. Worth & Denver City Railway Company, together with the appellants, the Atchison, Topeka & Santa Fé Railway Company, the Southern Kansas Railway Company of Texas, and the Missouri Pacific Railway Company, for damages to three shipments of cattle. On April 16, 1910, C. T. Word delivered to the Ft. Worth & Denver City Railway Company, at Simmons, Tex., for shipment to Summit, Kan., 1,971 head of cattle to be transported over the lines of the above-named companies. These were shipped in two trains; the first shipment consisting of 35 cars and the second shipment containing 27 cars. On the 30th day of April, 1910, appellee delivered to the Ft. Worth & Denver City Railway Company, at Simmons, Tex., for transportation, 67 head of cattle, two cars, over the lines of the Ft. Worth & Denver City Railway Company and the appellants in this case to Summit, Kan. Unreasonable delay en route, rough handling, etc., is alleged, and consequent injury to the cattle and damage therefrom.

The Ft. Worth & Denver City Railway Company answered by general and special plea, and among other things pleaded the terms of the shipping contract, limiting its liability to loss or injury occurring on its own line of road. The Atchison, Topeka & Sante Fé Railway Company and the Southern Kansas Railway Company of Texas answered jointly, generally, and specially, and the Missouri Pacific Railway Company also answered generally and specially. The respective pleas of the parties will be stated more in detail in discussing the several assignments. Judgment based upon the verdict of the jury trying the cause was rendered for appellee Word against the Atchison, Topeka & Santa Fé Railway Company for $1,329, against the Southern Kansas Railway Company of Texas for $771.45, and the Missouri Pacific Railway Company for $2,185.60; no damages were assessed against the Ft. Worth & Denver City Railway Company. The case appears to have been tried in the court below upon the theory that it was governed alone by the statutes and decisions of this state and the briefs of the respective parties so treat the case, but by supplemental citation of authorities counsel for the Santa Fé roads call attention to the fact that this case is controlled by the interstate commerce act.

The first, second, third, fourth, fifth, and sixth assignments relate to pleadings and contracts of shipment of the two roads, the Atchison, Topeka & Santa Fé and the Southern Kansas Railway Company of Texas, designated by us for brevity as the Santa Fé, setting up and pleading certain clauses of the shipping contract with reference to notice of claims for damages as a condition precedent to the right of recovery. The contracts so set up are those executed by the Santa Fé. The fourth paragraph (a, b, and c) of the Santa Fé's answer is as follows:

"(a) That the liability of each carrier should be and was limited to its own acts and lines, and terminated upon its delivery or upon tendering delivery to its succeeding connecting carrier, and that such defendant was in no wise to be held liable for any loss or damage occurring off its line of railway; that these defendants received said cattle at Amarillo, Tex., and transported the same over their lines of road to Wichita, Kan., at which place their connection with said shipments ceased; that they transported and handled said stock with reasonable care and dispatch, and no damages or injuries whatever occurred to said stock while on their line of road or while in their charge.

"(b) That defendants further stipulated and provided in said shipping contracts, under terms of which said stock was transported by these defendants, that the plaintiff should load, unload, and reload said stock, and look after and care for same while in transit; that, if plaintiff's said cattle sustained any damages as alleged in his petition, such damages resulted from plaintiff's failure to properly load, unload, and reload said stock and properly look after and care for same while in transit, and his failure to properly load, unload, and reload and look after and care for said cattle while in transit, as provided for in said shipping contracts, and plaintiff's own negligence in these respects and in these particulars became and was the direct and proximate cause of any and all such damages as he may have sustained.

"(c) That no claim for damages to said cattle should be recoverable, unless written claim therefor should be presented to the defendant carrier within 91 days after such damages occurred. Defendants would represent that no claim in writing claiming damages to said several shipments of cattle, as sued for in plaintiff's petition, was within the 91 days after such damage had occurred ever in fact presented to these defendants, or to either of them, as required under the terms of said written contract. And defendants plead said shipping contract in bar of plaintiff's right to recover herein."

The appellee, Word, replied to said answer as follows:

"And for further answer herein, plaintiff says that his cattle were shipped on a through rate, billed from Simmons, Tex., to Summit, Kan., the freight being paid in advance to the initial carrier, the Ft. Worth & Denver City Railway Company. That thereupon all defendants were bound to transport said cattle without further contract. That said contracts were executed after said cattle were loaded and had been transported over a portion of their journey and were without further or additional consideration. That said contracts were printed in such small type that it is very difficult for an ordinary person to read them and of such great length that it would require great delay in transportation for the parties who executed such contracts to take the time to read over and understand such contracts. That they contain many illegal and void provisions, and in particular the provisions referred to in said contracts in paragraph c of subdivision 4 are so intermingled with and dependent upon other provisions contained in said contract, which are illegal and void, that the same cannot be separated from said void and illegal provisions. That said contracts are so printed in such small type, at such great length, and intermingled with said void and illegal provisions for the fraudulent purpose on the part of the defendants of entrapping, confusing, and misleading persons to whom said contracts were presented for signature and for the purpose of preventing a reading thereof on the part of the shippers and an understanding on their part of such provisions, if the same should be read. That the plaintiff did not read said contracts before signing same and did not know that such contracts contained the provision set forth in said paragraph of said answer. That under the law the initial carrier in such a shipment, to wit, the Ft. Worth & Denver City Railway Company, would be responsible to the plaintiff for the entire damages sustained in the course of such transportation. That the plaintiff within due time presented notice of his said claim to said defendants, and that the provision in said contracts with the other defendants, requiring the presentation of notice to them, was unreasonable and void."

The contracts entered into by the appellee with the Ft. Worth & Denver City Railway Company were all of the same form and were alike, except as to dates, numbers of cars, cattle, etc., and in part are as follows:

"Live Stock Contract.

"Executed at Simmons station, 4/16/1910. This agreement made between the Ft. Worth & Denver City Railway Company of the first part, herein called the carrier, and C. T. Word, of the second part, herein called the shipped, Witnesseth: That, for the consideration and the mutual covenants and conditions herein contained, the said carrier acknowledges receipt at Simmons and agrees to transport for the shipper the live stock described below, together with the parties in charge thereof, as hereinafter provided, viz.: 27 cars, said to contain 875 head of cattle from Simmons station to Summit, Kansas, consigned to C. T. Word, Summit, Kansas" —giving the number of cars, initials, number of cattle, etc. It is further provided in case the cattle were to be transported over the roads of any other railway company that the carrier should be released from liability of every kind after said stock shall have left its road, and that its liability should be limited to its own line of railway. This is substantially all of the Denver Railway Company's contract, as set out in the record.

The contract set up by the Santa Fé occupies some 17 pages of the record, but the clause set out and upon which stress is laid by said Santa Fé is No. 8, and is as follows:

"Eighth. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in...