Betka v. Houston & T. C. R. Co.

• Decision Date: 19 October 1916
• Docket Number: (No. 7241.)
• Citation: 189 S.W. 532
• Parties: BETKA v. HOUSTON & T. C. R. CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

189 S.W. 532

BETKA v. HOUSTON & T. C. R. CO. et al.^*

(No. 7241.)

Court of Civil Appeals of Texas. Galveston.

October 19, 1916.

Rehearing Denied November 16, 1916.

Appeal from District Court, Waller County; J. D. Harvey, Judge.

Action by L. Betka against the Houston & Texas Central Railroad Company and others. From a judgment on directed verdict for defendants, plaintiff appeals. Affirmed.

Meek & Kahn, of Houston, and Hannay & Hannay, of Hempstead, for appellant. Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellees.

PLEASANTS, C. J.

This suit was brought by appellant against appellees to recover the sum of $1,826.50 as damages for injury to cattle shipped over appellees' railway lines from Cheneyville, in the state of Louisiana, to Hockley, a station on the line of the Houston & Texas Central Railroad in the state of Texas. The cattle were shipped under a written contract executed by an agent of appellant and an agent of the initial carrier, the Louisiana & Western Railway Company. The La Fayette & Alexandria Railroad Company and the Texas & New Orleans Railroad Company, the intermediate carriers, were sued with the other roads above named. The defendants answered, and each of them, among other defenses, specially pleaded the provisions of the contract of shipment hereinafter set out and the failure of plaintiff to comply with said provisions. After hearing the evidence the trial judge instructed the jury to return a verdict for the defendants, and upon the return of such verdict judgment was rendered in accordance therewith. The contract under which the cattle were transported by defendants' railway lines contains the following provisions:

"Said party of the second part further agrees that as a condition precedent to his right to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim thereof, before said stock is removed from the place of delivery of the same hereinbefore mentioned, and before said stock is mingled with other stock, to R. L. Wragg, station agent of said party of the first part at said company's office at Cheneyville station, or in case said agent be not present at said office to receive said notice, then to that employé of said party of the first part at said station who represented said company in the actual delivery of said stock."

"It is further mutually agreed and expressly provided that no suit or action against parties of the first part for the recovery of any claim by virtue of this contract should be sustainable in any court of law or equity unless said suit or action be commenced within forty days next after the damages should have occurred; and should any suit or action be commenced against said party of the first part after the expiration of said forty days, the lapse of time shall be taken as being conclusive evidence against the validity of such claim; any statute of limitation to the contrary notwithstanding."

"It is further mutually agreed that no suit be brought on any claim which may arise under this contract, unless such suit be commenced within forty days next after the damage shall have occurred, and any suit brought thereafter shall be deemed conclusively barred and invalid."

The evidence shows that the cattle were shipped from Cheneyville on the 24th or 25th of April, 1913, and reached Hockley a day or two thereafter. Some of them were dead in the cars when the train reached Hockley, some died in the railroad pens into which, they were unloaded at Hockley, some on the way to appellant's pasture, and one or more after being put in the pasture. Many of the remainder of the shipment were badly injured. The evidence shows that the loss of and injury to the cattle was caused by the negligent manner in which the defendants handled the train on which they were shipped, and that the damages sustained by plaintiff amounted to the sum of $1,800. This suit was filed on February 1, 1915. As shown by an order of the court overruling a motion of plaintiff to submit the cause to the jury upon special issues, the trial judge was of opinion that the provisions of the contract that no suit could be maintained on any claim thereunder unless brought within 40 days after the damages claimed occurred, was not unreasonable, and was binding upon the plaintiff as a matter of law, and as the undisputed evidence showed that the suit was not brought within 40 days after the damages occurred, the defendants were entitled to have the jury instructed to return a verdict in their favor.

We do not think the trial court erred in this view of the law applicable to the case made by the pleadings and evidence. The shipment was interstate, and the rights of the parties under the interstate contract of shipment are fixed by the federal statute and decisions, and our state statute, declaring any contract or agreement unlawful in which the time to sue thereon is limited to a shorter period than two years, has no application. This was the ruling of the Supreme Court of the United States in the case of Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, and that decision has been uniformly followed by both federal and state courts. Railway Co. v. Langbehn, 158 S. W. 244; Railway Co. v. Word, 159 S. W. 379.

Prior to the enactment of the statute above mentioned (article 5713, Revised Statutes 1911) our Supreme Court held that the only limitation on the right of railroads to limit the time in which suit could be brought on a contract of shipment was that the time fixed must not be unreasonable, and that it was not unreasonable to require that suit be brought within 40 days after the damage occurred. Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494; McCarty v. Railway Co., 79 Tex. 33, 15 S. W. 164; Railway Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913, 10 L. R. A. 419.

The Supreme Court of the United States has held in a number of cases that such time limit for bringing suit was reasonable. Express...