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

• Decision Date: 06 February 1891
• Citation: 15 S.W. 568
• Parties: GULF, C. & S. F. RY. CO. v. TRAWICK.
• Court: Texas Supreme Court

15 S.W. 568

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

Supreme Court of Texas.

February 6, 1891.

Appeal from district court, Lampasas county.

Matthews & Wood, for appellant. Walter Acker and Fisher & Towns, (W. B. Abney, of counsel,) for appellee.

HENRY, J.

This suit was brought by the appellee to recover damages to his cattle caused by their escape from a stock pen at Navasota while in process of shipment to Lampasas, and from injuries received by them while being transported to the last-named place. The contract contained a provision limiting a right of action upon it to 40 days from the time the damage occurred. A full statement of the facts and issues was given in the opinion on a former appeal, when the judgment was reversed because of the refusal of the court to charge upon the effect of the failure of the plaintiff to institute his suit within the time limited. 68 Tex. 314, 4 S. W. Rep. 567. After the cause was remanded to the district court, the plaintiff filed a supplemental petition in reply to the defendant's said plea of limitation, in which he alleged as reasons why said plea should not prevail that "within three days after the accrual of plaintiff's cause of action, and on divers days down to and including the 27th day of October, 1884, the defendant by and through its agents represented to plaintiff that the defendant would adjust and pay his claim for the cattle killed and injured, and induced him to put in his claim for much less than his real damage upon a statement made by defendant through the local agent of defendant at Lampasas to the effect that defendant would pay said claim without suit if plaintiff would put it in for a reasonable sum, and that after the claim was put in the hands of said agent, to-wit, on May 6, 1884, and divers days thereafter, defendant induced him to delay bringing suit against it until long after the expiration of said 40 days by stating to plaintiff that his claim was in the hands of the company, and that he (the said agent) was satisfied and believed that defendant would pay it without suit, and at the same time requested plaintiff not to sue upon his claim until defendant had acted on it; that plaintiff, relying on the representations so made, delayed the institution of his suit; that afterwards, on the 27th day of October, 1884, the defendant, through its general manager, refused to pay the claim; that plaintiff filed his suit on the 11th day of November, 1884, and that he was induced to delay the institution of his suit by the representations aforesaid." The court overruled an exception taken by the defendant to this pleading, and, the appellant contends, committed an error in so deciding.

The question of waiver of similar clauses in policies of insurance has been frequently considered by the courts of our own and other states. While there exist some material differences in its application to the two descriptions of contracts, the principle is substantially the same in both cases. The rule upon the subject stated in the opinion of the supreme court of New York in the case of Ripley v. Insurance Co., 29 Barb. 557, meets with our approbation. It is there said: "A twelve-months statute of limitations, although assented to by the parties, operates as a forfeiture. It is therefore to be strictly construed. Slight evidence of waiver, as in other cases of forfeiture, will be sufficient to defeat its application." Insurance Co. v. Dodge, 44 Mich. 423, 6 N. W. Rep. 865; Insurance Co. v. Myer, 93 Ill. 276; Derrick v. Insurance Co., 74 Ill. 408. In the case of Martin v. Insurance Co., 44 N. J. Law, 485, the supreme court of New Jersey say: "If the delay to bring suit is a result to which the company mainly contributed by holding out hopes of amicable adjustment, the company cannot be permitted to take advantage of the delay under the limitation clause of the policy." This court said in the case of Insurance Co. v. McGregor, 63 Tex. 404, that "if the course of conduct pursued by the appellant was such as to induce the appellee to believe that the sum admitted to be due on the adjustment made would be paid without suit, and that for...