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

• Decision Date: 15 April 1925
• Docket Number: (No. 6851.)
• Citation: 273 S.W. 661
• Parties: GULF, C. & S. F. RY. CO. et al. v. HARRELL et al.
• Court: Texas Court of Appeals

273 S.W. 661

GULF, C. & S. F. RY. CO. et al. v. HARRELL et al.

(No. 6851.)

Court of Civil Appeals of Texas. Austin.

April 15, 1925.

Rehearing Denied May 13, 1925.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Action by C. K. Harrell and others against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Terry, Cavin & Mills, of Galveston, and Snodgrass. Dibrell & Snodgrass, of Coleman, for appellants.

Baker & Weatherred, of Coleman, for appellees.

BLAIR, J.

This is the second appeal in this case. We do not find where the opinion of the first appeal has been published, and it will be necessary to again state the case. [See subsequent publication, 270 S. W. 187.]

The suit is for damages to a shipment of 881 sheep from Amarillo to Santa Anna. They were delivered in good condition for shipment, but the carrier confined them on the cars for about 51 hours without food, rest, or water; and, because of hunger from the long confinement, they ate the wool off each other's back. Other injuries from rough handling and overloading of the cars were alleged and proved. Five of the sheep valued at $12 each were lost, and the remainder were damaged $3 per head, according to the allegations of the petition, as a result of this negligence of the carrier.

The carrier answered formally, and that the shipment was made while the railroads were being operated under government control as a war measure, and specially pleaded as follows the contract of shipment as a limitation of its liability:

"Further answering herein, said defendant represents that the said shipments of sheep were interstate, and were transported under written contracts of shipment, which contracts of shipment contained, among others, the following stipulations, to wit:

"`Third. The shipper hereby represents and agrees that his live stock does not exceed in value the prices below mentioned, it being understood that the rate given is based upon such limit of valuation, which is the highest value accepted for the lower rate (animals of a higher value being charged a higher rate), and, in case of loss or damage through any cause for which the company may be liable, payment shall be made therefor only on the basis of the actual cash value at the time and place of shipment, but in no case to exceed the following, which is understood not to exceed the value as held by the shipper, to wit, each sheep or goat, $3.00.'

"And in this connection defendant alleges that the plaintiff did not declare a higher value than the said contract stipulation of $3.00 per head, and did not pay a higher rate than the rate authorized by said contract value, that under tariff rules and regulations in force at said times, higher rates were provided for higher values, and said limitations of liability was authorized and rated; and that by reason of said facts the plaintiffs are not entitled in any event to recover for any sheep lost or killed in excess of the sum of $3.00 per head; and in this connection defendant further alleges that said contracts expressly stipulated as follows:

"`Thirteenth. In making this contract, the shipper expressly acknowledges that he has had the option of making this shipment under the tariff rates either at carrier's risk or at a limited liability and that he has selected the rate and liability named therein and expressly accepted and agrees to all the stipulations herein named.'

"And defendant further alleges that by reason of said contracts the said plaintiffs are not entitled in any event to recover in excess of the sum of $3.00 per head for the sheep lost and killed, if any, and he here now pleads said provisions of the contract in defense of plaintiff's suit and of this he prays judgment of the court."

The jury found in answer to special issues submitted that 5 sheep worth $10 each were lost in shipment, and that the remaining 876 were damaged $1.65 per head as a result of this negligence of the carrier; that is, they found the difference in the market value of the sheep in the condition in which they were delivered at Santa Anna and the condition they should have arrived, but for the negligence of the carrier, was $1.65 per head. Upon these...