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

• Decision Date: 18 October 1916
• Docket Number: (No. 1029.)
• Citation: 189 S.W. 70
• Parties: ATCHISON, T. & S. F. RY. CO. v. SMYTH et al.
• Court: Texas Court of Appeals

Page 70

189 S.W. 70

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

(No. 1029.)

Court of Civil Appeals of Texas. Amarillo.

October 18, 1916.

Appeal from District Court, Potter County; Hugh L. Umphres, Judge.

Action by June Smyth and others against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant. R. R. Hazlewood and A. A. Lumpkin, both of Amarillo, for appellees.

HUFF, C. J.

The appellees June Smyth and Lee Bivins allege: That they were damaged by reason of delay in failing to furnish cars on time for 430 steers at a station named Riverton. That there was no regular agent at that place, but it was used principally for shipping cattle over the line of road, and that the nearest station thereto where an agent was kept was at Pecos, 25 miles from Riverton. That Smyth, on December 19, 1912, called upon the agent at Pecos, and informed him that he desired to ship the steers from Riverton to Amarillo, Tex., over the appellant's line of road and certain connecting lines on December 21st. The agent informed Smyth that it would be inconvenient to get sufficient cars before December 23d. That it was then agreed between himself and the agent that appellees would hold the cattle until the 23d; and the agent instructed Smyth to have the steers at Riverton ready for shipment by the morning of the 23d, and that appellant would have sufficient cars there at that time for the shipment. In pursuance to the agreement the cattle were placed in the pens at Riverton during the night of December 22d, and were held there until the afternoon of December 24th, constantly expecting a train to arrive for the loading of the steers, when the appellant notified the appellee for the first time that it would have the cars there on the morning of December the 25th. The appellees thereupon took the steers out of the pen and drove them to the river for water, a distance of about 1½ miles, and also drove them about 6 miles to graze on the 24th; and on the night of the 24th they were again placed in the pen, and that on the morning of the 25th, at 10 o'clock a. m. were loaded out by appellant's agents, to be shipped to Amarillo, Tex. It is alleged the cattle were damaged $6 per head, by reason of being held at Riverton from the 23d until the 25th of December, and on account of having no water except alkali water, and an insufficient amount of grass at that point. This was the only damages claimed. The petition further shows that the initial point of the shipment was in Texas, thence through New Mexico, and thence again into Texas, to Amarillo.

The appellant denied generally the allegation and made certain specific denial. The answer, in paragraph 15a, alleges that a written contract was entered into at Orter, Tex., on December 25, 1912, wherein it was expressly agreed by the parties thereto that it should supersede all previous negotiations between the parties, and that appellees expressly waived any claim for damages which they might have for anything that transpired prior to the execution of such contract, and set out the paragraph, which is as follows:

"It is distinctly agreed that all prior understandings concerning the furnishing of cars or facilities for said shipment, or concerning the transportation of said stock or said shipment, are hereby merged and contained in this written agreement, and this written agreement contains all the terms, conditions and provisions relating in any manner to the shipment or transportation of said stock; and said shipper hereby expressly waives all claims for damages arising from the breach of any prior agreement with respect to the transportation of said stock or the furnishing of cars therefor, and hereby releases the company from any and all liability therefor. That said contract was based upon a valid consideration and determines the rights and liabilities of the parties, and that thereby all such negotiations, etc., were merged into such written contract, and that thereby plaintiff specially waived any claim for damages which he might have by reason of the facts set forth in his petition filed herein, and defendant pleads such contract and release in bar of plaintiff's right to recover in this suit."

By paragraph 16 it is alleged that it was contemplated by the parties that such a contract would be executed and should govern and determine the rights of the parties, and was based upon a valid consideration. The appellant pleaded said contract and each and every paragraph thereof, and especially the following provisions contained therein, among other things:

"1. Paragraph 3 of said contract provides that in case plaintiff's stock were damaged or if plaintiff should suffer loss or damage from any cause for which the railway company might be held liable, then plaintiff should not claim an amount exceeding the stipulated value of said steers; that said stipulated value as provided by the written terms of the contract and as provided by the declared value of such live stock was the sum of $30 per head; that plaintiff's cattle were transported on such reduced valuation at a cheaper rate than if such valuation had not been reduced. By reason whereof plaintiff is not entitled to recover any damages so long as the valuation per head was not reduced below said amount of $30 for each steer contained in the shipment, and defendant pleads said paragraph 3, in bar of plaintiff's right to recover herein.

"2. That in paragraph 8 of said written contract above referred to it is further provided that `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 damage 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 and unloaded for any purpose on the company's road or previous to loading thereof for shipment, the shipper or his agent in charge of this stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier, making such delivery before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move said stock from such station or stockyards until the expiration of three hours after the giving of such notice, and failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages, the written notice herein provided for cannot and shall not be waived by any person except a general officer of the company and he only in writing.' Defendant says that such notice in writing was not given the defendant or any of its connecting carriers or to the delivering carrier or to any of its or their agents during the transportation of said stock and before the removal of same from the stockyards at destination, and that the first notice of any character was a notice in writing received by this defendant's agent at Amarillo, Tex., from plaintiff Lee Bivins, on or before about the 29th day of December, 1912. By reason thereof, plaintiffs are not entitled to maintain this suit or to recover any damages against this defendant, and defendant pleads said contract, and especially said paragraph 8 thereof, in bar of plaintiff's right to recover herein.

"3. Paragraph 9 of said written contract provides: `It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment, or any contract pertaining to the same, or of furnishing facilities for such shipment, shall be sustained in any court of law or equity, unless such suit or action shall be commenced in six months after the loss or damage shall have occurred. The failure to institute suit within said time shall be deemed conclusive evidence against the validity of such claim or cause of action, and shall be a complete bar to such suit.' Defendant says that plaintiffs' suit was not filed within said period of six months and until long thereafter; that said suit was first filed by plaintiffs by the filing of their original petition herein August 28, 1913, more than eight months after the alleged loss and damage occurred, and defendant pleads such stipulation in said contract in bar of plaintiffs' right to recover herein."

The appellees presented a general exception to paragraphs 15a and 16, and special exceptions thereto: (1) Because the answer alleges the transportation under a certain contract; the petition alleges their cause of action to be a failure to furnish cars at the time agreed upon, and that defendants admit in their answer that it was an oral agreement, and that the answer, setting up the contract, is immaterial and irrelevant. (2) That the allegations are immaterial for the reason that appellees sought no damages after the cattle were loaded and after signing the contract, but only such as accrued upon appellant's failure to comply with the oral agreement to furnish cars. (3) Because it is not alleged therein that appellant would be liable for any injury to the cattle if the loss occasioned was not less than $30 per head. (4) Because the cause of action is for failure to furnish cars, and not damages in course of transportation. (5) For the reason the facts alleged in said paragraph and in subdivision No. 3, if true, are in contravention of the laws of the state of Texas, and therefore void.

The trial court sustained each and all...