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

• Decision Date: 16 October 1895
• Citation: 32 S.W. 322
• Parties: GULF, C. & S. F. RY. CO. v. WHITE.
• Court: Texas Court of Appeals

32 S.W. 322

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

Court of Civil Appeals of Texas.

October 16, 1895.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by C. W. White against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Waller Baker and J. W. Terry, for appellant. J. B. Scarborough, for appellee.

KEY, J.

Appellee sued appellant to recover damages for alleged injuries to live stock shipped over appellant's railroad, and recovered a verdict and judgment for $1,000. The plaintiff did not sue on a written contract executed by the defendant; but the defendant, in its answer, averred that the cattle were shipped under written contracts executed by the plaintiff, acting through certain alleged agents, and, among other things, averred that the plaintiff had failed to bring his suit within 40 days after his cause of action accrued, as required by the written contracts. The plaintiff filed several exceptions to the defendant's answer, and denied, under oath, the authority of any one to execute the contracts referred to. There was no sworn plea of want of consideration, but a waiver of the 40-day clause was pleaded. Each party has assigned errors, which call for rulings on the following matters:

1. The written contracts pleaded by appellant were shown to have been executed in appellee's name by certain of his employés, sent by him with the several shipments of cattle. Appellee testified that he sent said employés along to take care of the cattle; that, in accordance with his written contract with the Texas & Pacific Railroad Company, he paid the through rate of freight in advance to that company; that he gave said employés no authority to sign any contracts. The cattle were consigned to Red Rock, Indian Territory, and when they reached Ft. Worth they were delivered to appellant, and this suit is to recover for injuries alleged to have occurred after that time. The contracts referred to were executed before the cattle left Ft. Worth. The court below did not submit the question of the authority of appellee's employés to execute said contracts to the jury, but instructed them that the contracts were binding, and as they required suit to be commenced within 40 days after damage was sustained, to find for the defendant, unless they found that it had waived its rights under the 40-day clause. If it had been made clearly to appear that the employés who accompanied the cattle had authority to deliver them to appellant for shipment, then authority to execute the written contracts of shipment might be presumed. Ryan v. Railway Co., 65 Tex. 13. But in this respect the case does not appear to be well developed. In fact, it is not definitely shown by whom the cattle were delivered to appellant. We therefore think the court erred in assuming that the contracts were executed by appellee's authority, and hold that that question should have been submitted to the jury. In so ruling, we do not mean to say that the evidence bearing on the question will not support a finding that the authority existed. We are aware of the rule that holds that although no express authority be given to do a particular act, yet, if such act be within the apparent scope of the agent's authority, his act will bind his principal. But whether or not the act be within the apparent scope of the authority given is, it seems to us, a question of fact for the jury to decide.

2. Though now prohibited by statute, at the time these contracts were made it was settled law that, if the time allowed was reasonable, contracts restricting the time in which suits might be brought were valid. Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 567; Railway Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913; McCarty v. Railway Co., 79 Tex. 35, 15 S. W. 164. The statute condemning such contracts was enacted after these contracts were made, and it cannot be given a retroactive effect. The trial court below took this view of the matter, but submitted to the jury whether or not appellant had waived the 40-day clause. In this, we think, error was committed. If the contracts requiring suit to be brought within 40 days were executed in such manner as to bind appellee, then the law charged him with notice of the terms of the contracts; and it was immaterial that he did not, in fact, know that the contracts had been executed, until after this suit was brought. However, the main excuse relied on appears to be certain statements made by an attorney representing the defendant. These statements were made long after the 40 days had elapsed. No suit was commenced until after the 40 days had expired. The statement referred to may have caused the plaintiff to delay the institution of this suit, but it did not in any manner affect any right he had. At the time the statement was made he had no right to sue, and hence the statement, and the consequent delay, did not affect any of his rights. There is an entire absence of testimony tending to show that appellant, or any one acting for it, did anything, pending the 40 days within which the plaintiff was required to sue, tending, even remotely, to induce him not to sue within that time. And having failed to sue within that time, and there being nothing tending to show that 40 days was an unreasonable time, if the contracts were executed by his authority, his demand was barred; and nothing short of an absolute promise, in writing, to pay it, would remove the bar, and no such promise was shown. As the evidence stood, the question of waiver should not have been submitted to the jury.

3. Two objections are urged against the following paragraphs of the court's charge: "If you find that plaintiff is not barred by said forty-days clause in said contract, you will then, from all other evidence before you, estimate the amount of damages incurred by plaintiff, caused by delay in receiving and transporting said cattle, and by reason of loading and shipping said cattle in infected cars, if you find there was any unreasonable delay, and if you find said cars were infected with fever germs, and that any of said cattle became diseased or damaged thereby; and you will state in your verdict how much you find." Appellant contends that this charge assumes that the cattle were damaged while on its road, and that there was no evidence whatever to justify the court in submitting the question of the cattle being loaded in cars infected with fever germs. We agree with appellant on both points. The charge tells the jury, if they find the plaintiff's claim is not barred, to estimate the amount of damages caused by delay in receiving and transporting the cattle, etc. It does not leave it for the jury to determine whether or not the cattle had been damaged by delay, but assumes that they had, and directs the jury to estimate the...