Chicago, R. I. & G. Ry. Co. v. Dalton
Decision Date | 24 April 1915 |
Docket Number | (No. 763.) |
Citation | 177 S.W. 556 |
Parties | CHICAGO, R. I. & G. RY. CO. et al. v. DALTON. |
Court | Texas Court of Appeals |
Appeal from Sherman County Court; J. W. Elliott, Judge.
Action by A. M. Dalton against the Chicago, Rock Island & Gulf Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.
N. H. Lassiter, of Ft. Worth (Moore & Powell, of Dalhart, and Gustavus & Jackson, of Amarillo, of counsel), for appellants. Jno. H. H. Stahl, of Stratford, for appellee.
The appellee Dalton brought suit against the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company, to recover damages for alleged injuries to a shipment of cattle, consisting of 188 head shipped from Romero, Tex., to Kansas City, Mo., and for 46 head shipped from Stratford, Tex., to Kansas City, Mo.
The allegations of the petition allege that the shipment was upon a written contract of affreightment. The allegations of negligence consisted of delays, rough handling, and consequent damages. The appellants answered, setting up certain stipulations of the contract, denying liability, etc., among which the following stipulation was alleged:
There is no allegation in the answer, setting up that this stipulation was reasonable, or that appellants had a general officer, claim or station agent at the place of destination so that written notice could have been given such agent or officer. The facts in this case will be considered sufficient to support the judgment of the court in finding negligence in the particulars alleged in the petition, and that by reason thereof the cattle were injured, and that the appellee suffered damages to the amount found by the court, $686.84.
The appellants introduced written contracts or receipts to the appellee, executed by the Chicago, Rock Island & Gulf Railway Company at Romero, Tex., which contract contained the provision above set out in their answer, and introduced no further testimony with reference to officers or agent being at the point of destination.
There was no notice in writing given by the appellee, or at least none proven. Appellee testified:
The appellants present two assignments of error, the second of which will be overruled without further discussion.
The first assignment is to the effect that the court erred in rendering judgment for the appellee, he having brought suit on a written contract with the stipulation above named, and did not prove that he had given the notice as required by such provision or any excuse therefor. This being an interstate shipment, we recognize, since Congress has taken charge of interstate shipments, the decisions of the federal courts should control, and, when the courts of that jurisdiction announce the rule governing the case, it is our duty to follow it; but, where the rule is not established by the supreme tribunal, we must follow that rule which in our judgment comports with reason and justice, and we must confess a decided preference for the holdings of our own Supreme Court, than whom no more enlightened jurists have graced courts in other jurisdictions. We regard the following questions as being suggested by the record:
Are the pleadings and evidence of the clause sufficient alone to show its reasonableness, or must the pleadings and evidence show, aliunde of the clause as applied to the particular shipment, that it is a reasonable stipulation? There is but little doubt, if any, that the Supreme Court of Texas holds that the burden rests upon the carrier to allege facts and to prove that the clause as applied to the particular shipment is a reasonable one. If this is not shown by the carrier, then there is no duty upon the shipper to prove the notice was given or prove an excuse for not doing so. It may be conceded, we presume, that the mere fact that the time is short will not render the clause invalid, and that the carrier may rightfully stipulate that it shall have the right to examine the cattle before they are removed, and that the Supreme Court of the United States would doubtless so hold, and that the decisions of that court tend in that direction. We do not understand that the Texas courts have held to the contrary; but, as we understand our courts, the stipulation is held reasonable or not under the facts and circumstances of each shipment, and the facts and circumstances rendering it reasonable must be alleged and proven by the carrier. Judge Stayton, in Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 575, did express a doubt as to the validity of such a stipulation, but did not in terms hold it invalid; but held:
The locality of the agent or officer of the carrier is peculiarly within its knowledge and we think simple justice should require it to allege and prove such fact, and that the facts when so alleged should be sufficient to show that the stipulation requiring notice could have been reasonably complied with by the shipper, and, until such allegation and proof is made, there is no lawful stipulation shown requiring the shipper to prove notice or an excuse for not giving it. The court or jury should not be left to presume that the agent was at a place accessible, such as would render the requirement of notice to him reasonable; but the facts should be alleged and proven. The rule is announced by the Commission of Appeals, and approved by the Supreme Court of Texas, in the case of Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W....
To continue reading
Request your trial-
Atchison, T. & S. F. Ry. Co. v. Smyth
...of the burden of proof is not here involved, as held by a majority of this court in Railway Co. v. Whatley, 177 S. W. 543; Railway Co. v. Dalton, 177 S. W. 556. The provision of the contract requiring suit to be instituted within six months is also valid. Railway Company v. Harriman, 227 U.......
-
Sellers v. Puckett
...in this case, we do not regard it as mandatory upon us to certify because of the dissent of one of the members of this court. Railway Co. v. Dalton, 177 S. W. 556, and authorities The motion for new trial and to certify overruled. HENDRICKS, J. (dissenting). I overlooked the McFall Case, i.......
-
Panhandle & S. F. Ry. Co. v. Jones
...by a consideration. I. & G. N. Ry. v. Rathblath, 167 S. W. 751. See, also, C., R. I. & G. v. Whaley, 177 S. W. 543; C., R. I. & G. v. Dalton, 177 S. W. 556. No consideration is shown by the appellant for the stipulations exempting it from such liability. Cau v. Texas, etc., Ry. Co., 194 U. ......
-
Kansas City, M. & O. Ry. Co. v. Hansard
...stipulation for 1 day's notice reasonable under the facts of the particular shipment. Railway Co. v. Whaley, 177 S. W. 543; Railway Co. v. Dalton, 177 S. W. 556. This court is not convinced beyond a reasonable doubt of the correctness of the position there taken, as will be evidenced by the......