Galveston, H. & S. A. Ry. Co. v. Ball

• Decision Date: 28 April 1891
• Citation: 16 S.W. 441
• Parties: GALVESTON, H. & S. A. RY. CO. v. BALL.
• Court: Texas Supreme Court

16 S.W. 441

GALVESTON, H. & S. A. RY. CO. v. BALL.

Supreme Court of Texas.

April 28, 1891.

Commissioners' decision. Appeal from district court, Bexar county.

W. N. Shaw, for appellant. Tarleton & Keller, for appellee.

MARR, J.

The appellee sued appellant in a justice court of Bexar county, to recover the value of one barrel of whisky, and the amount of freight charges paid thereon, with interest, etc. He recovered in that court, and appellant appealed to the district court, where judgment was entered in favor of appellee for $91.12½, the value of the barrel of whisky lost or not delivered by appellant, and for $5.25, the freight charges paid by appellee on said barrel, with interest on the total amount from the 15th day of January, 1887, the date when the freight should have been delivered. R. Monarch & Co. consigned and shipped from Owensboro, Ky., five barrels of whisky to appellee at San Antonio, Tex., under a through bill of lading, the appellant being "the delivering carrier." One of the barrels was not delivered to the plaintiff by the defendant, but the other four were, on the 13th day of January, 1887, as found by the court below. The appellee at this time paid the appellant the freight for all of the barrels consigned, upon "appellant's representation that one of the barrels was missing," but that it would "deliver this barrel in a few days." It never did, however, comply with the promise. There is no statement of facts, but the record contains the district judge's conclusion of law and fact. The court below found that the value of the barrel of whisky, (bought by plaintiff, and consigned to him, and appropriated or negligently lost by the defendant) was $91.12, and that plaintiff was entitled to recover the full value thereof, as well as the freight paid thereon, and with interest. The value thus found by the court was evidently intended as at the point of destination, though the place of valuation is not expressly stated. Defendant pleaded certain stipulations, claimed to be a part of the bill of lading and contract, as exempting it from full liability. These were not sustained by the court, and of this the appellant now complains. The bill of lading was not signed by either the plaintiff or his consignor. Below the signature of the receiving carrier's agent on the receipt or bill of lading, and as a foot-note, the following was printed: "Claims for loss or damage must be presented to the delivering line within 36 hours after the arrival of the freight." If this can be considered as any part of the contract, and as reasonable, yet it is manifestly inapplicable, and does not support the plea, because this particular freight for which the recovery was had was in fact never delivered. Besides, as found by the court below, the matter was waived by the promise and representation of the defendant when the other barrels were delivered. There was no error in the court below disregarding this plea. Defendant also pleaded that, by the terms of the contract, the valuation of the goods should be fixed at the place of shipment, and that the value of the whisky at that point was only $20 per barrel, and that this value was agreed on by the terms of the bill of lading, and that the court erred in allowing the value at the point of delivery. The court found that across the face of the bill of lading was stamped the following clause: "Twenty dollars per barrel valuation, and owner's risk of leakage, caused by cracked and broken staves, worm-holes, or for any other cause, not the gross negligence of the company." The bill of lading contains, among others, the following clause relied on by the defendant, viz.: "It is further agreed that in case of loss * * * the amount of loss or damage shall be computed at the value or cost of said goods or property at the place and time of shipment under this bill of lading." This stipulation, and the above indorsement on the face of the receipt, construed together, amount to no more than agreement between the consignor and the company that the valuation of the property should be fixed at the time and place of shipment, and that such value was then and there $20 per barrel. This is the most favorable construction to defendant that it is susceptible of. It cannot be held to be tantamount to an agreement fairly and fully made between the appellee, as the owner of the goods, and the company, mutually intended as stipulated damages, or absolutely fixing the only amount of damages that could be recovered in case the property should be lost or destroyed, but without the want of ordinary care upon the part of the carrier. Can the stipulation as made be legally enforced so as to limit the liability of the defendant to $20, the value at the point of shipment as given in the bill of lading? (In all probability that is a false and under valuation, even at that point.) We are of the opinion that the stipulation is invalid, under the facts of this case....