Gulf, C. & S. F. Ry. Co. v. Gatewood

• Decision Date: 17 December 1890
• Citation: 14 S.W. 913
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. v. GATEWOOD.

Page 913

14 S.W. 913

GULF, C. & S. F. RY. CO. v. GATEWOOD.

Supreme Court of Texas.

December 17, 1890.

Appeal from district court, Johnson county; J. M. HALL, Judge.

Smith & Davis and J. W. Terry, for appellant. Poindexter & Padelford, for appellee.

ACKER, P. J.

On the 1st day of March, 1886, the Gulf, Colorado & Santa Fe Railway Company received from W. H. Gatewood at Blum station, in Hill county, Tex., three car-loads of cattle, 60 in number, to be transported to Chicago, in the state of Illinois, for the consideration of $105 per car, and there delivered to Gregory, Cooley & Co. The cattle were not delivered at Chicago until the 5th day of April, 1886, and Gatewood brought this suit against the railway company on the 21st day of June, 1886, to recover damages as follows: For decrease in weight and value of cattle caused by delay in transporting them to their destination, $600; for difference in market price of the cattle at the date of their delivery in Chicago, and at the date when they should have been delivered there, $491.31; for board and hire of hand during the time the cattle were delayed, $60; for overcharge in freight and feed bills, $400. The cattle were received by the railway company and shipped under a written contract in which Gatewood expressly waived and relinquished to the company, and its connecting lines, all right to any damages he might otherwise have claimed, and expressly assumed all risk of damage resulting from delay in the transportation of the cattle, occasioned by any mob or strike or threatened violence to person or property. By said contract it was provided and mutually agreed that no suit or action for the recovery of any claim thereunder should be sustainable, unless such suit or action was commenced in 40 days next after the damage occurred, and that, should any suit be brought after the expiration of said 40 days, the lapse of time should be taken as conclusive evidence against the validity of the claim sued on. It was further stipulated in said contract, and agreed to between the parties, that in case the cattle were to be transported over the road of any other company, the Gulf, Colorado & Santa Fe Company should be released from liability of every kind after the cattle left its road, except to protect the through rate of freight. This contract was specially pleaded by the defendant in answer to plaintiff's cause of action, and the defendant further answered that plaintiff ought not to recover because if the cattle were delayed and not transported to Chicago in the usual and ordinary time, and were reduced in flesh, etc., as alleged, the same was not attributable to the negligence of defendant, but was owing to a strike on the Missouri Pacific and Texas & Pacific Railway lines; and that the cattle were shipped from Blum to Ft. Worth in due time, and in good condition, and were at once, and many times afterwards, tendered to those companies, and they would not receive them, and could not do so, because the employes of said companies had abandoned their employment and refused to work, and banded themselves together for the purpose of preventing any other persons taking their places, and did prevent all other persons from taking their places and working for said companies for 30 days from March 1, 1886; and that said companies made all efforts to and did provide other laborers to take the places of those who refused to work, but the employes so refusing would not allow the persons so employed to work, and the strikers did take possession of the engines, cars, and trains of said companies, and would not allow them to run their trains out of the city of Ft. Worth; and that these lines of railway are the only practical ways of carrying cattle from Ft. Worth to Chicago, and that the military forces were called out to quell said strike; and that therefore the delay in shipping said cattle was caused by a vis major, which defendant could not prevent or overcome, and specially pleaded the contract of plaintiff in regard to damage by mob force or strike in bar of recovery, and, further, specially pleaded that plaintiff did not bring the suit in 40 days after damage occurred, and that therefore his claim was barred by the limitation of time agreed upon in the contract. The trial resulted in verdict and judgment for plaintiff for $1,021, and defendant appealed.

It appears from the evidence that, at the time the contract was entered into, both parties contemplated that the cattle should be transported from Ft. Worth over the lines of the Missouri Pacific Railway Company. The cattle arrived at Ft. Worth on the morning of March 2, 1886, accompanied by plaintiff's brother, and were promptly tendered to the Missouri Pacific Railway Company, which refused to receive them because of its inability to move its freight trains, in consequence of a strike which had that day been inaugurated by the employes of that company, and by the employes of the Texas & Pacific Railway Company. On refusal of the Missouri Pacific Railway Company to receive the cattle, they were taken out of the cars, and put into the stock-pens of...