Houston E. & W. T. Ry. Co. v. Houston Packing Co.

• Decision Date: 18 May 1918
• Docket Number: (No. 341.)
• Citation: 203 S.W. 1140
• Parties: HOUSTON E. & W. T. RY. CO. v. HOUSTON PACKING CO.
• Court: Texas Court of Appeals

Page 1140

203 S.W. 1140

HOUSTON E. & W. T. RY. CO. v. HOUSTON PACKING CO.

(No. 341.)

Court of Civil Appeals of Texas. Beaumont.

May 18, 1918.

Rehearing Denied June 5, 1918.

Appeal from Harris County Court; W. E. Monteith, Judge.

Suit by the Houston Packing Company against the Houston East & West Texas Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Baker, Botts, Parker & Garwood and McMeans, Garrison & Pollard, all of Houston, for appellant. Hutcheson & Bryan, of Houston, for appellee.

HIGHTOWER, C. J.

On the 5th day of January, 1914, the Houston Packing Company, appellee, filed its petition in the county court of Harris county, Tex., seeking to recover $435.95, with 6 per cent. interest from the 13th day of June, 1911. For cause of action, appellee alleged that on or about the 13th day of June, 1911, it delivered to the Houston East & West Railway Company, appellant, a carload of meat, to be transported by said railway company and its connecting carriers to the city of New York, state of New York, and there to be delivered to the Houston Packing Company, notify Haft & Horwitz; that the reasonable market value of the meat at the time of the delivery to appellant railway company was $1,640.91; that at the time the car of meat was delivered to appellant it executed a bill of lading, whereby it agreed and obligated itself to safely carry, from Houston, Tex., to New York City, N. Y., and there deliver the same to appellee in good condition, and that appellant further agreed and obligated itself and its connecting carriers to keep said car of meat well iced along the route at points specified in such bill of lading, and at other points, if necessary; that appellant and its connecting carriers did not sufficiently ice said car of meat as it obligated itself to do, and failed to carry and promptly deliver same with due diligence, and that by reason of said negligence said car of meat, at the time it reached New York City, was of the reasonable value of only $1,204.96, and that by reason of the negligence of appellant and its connecting carriers appellee was damaged in the difference between the actual value of the meat at the time of its delivery to appellant and the value of the meat at the time it was delivered to appellee in New York, which difference was $435.95.

By its first amended original answer appellant denied the material allegations in appellee's petition; and further alleged that, if the meat was in an inferior condition at the time it reached New York, it was due to negligence on the part of appellee in the preparation of the car containing same, in that such car was not properly cooled by appellee at the time the meat was placed therein, and that said car was improperly constructed for the handling of meat. And appellant further pleaded, specially, among other things, that said shipment was an interstate shipment, and that the bill of lading under which the car of meat moved contained the following clause:

"Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery, or at the point of origin, within four months after delivery of the property. Unless claims are so made, the carrier shall not be liable."

The answer further alleged that such stipulation in the bill of lading was a valid and binding one; that no notice of any character respecting any loss, damage, or delay to said shipment was given to appellant, or to any agent of it, at the point of delivery, or at the point of origin; that, said shipment being an interstate one, the rules and regulations prescribed by the federal statutes, Interstate Commerce Commission, and the federal laws governed the liability of appellant as to said shipment of meat.

To this answer appellee, Houston Packing Company, replied by supplemental petition, in which, among other things, appellee pleaded that said stipulation with respect to notice of damage, etc., was unreasonable and void; and by further pleading—

"that, when this claim was presented in writing to the defendant, it did not then, nor at any time thereafter, until its amended answer was filed in this cause, make any objection to the time or manner of presentation of plaintiff's claim, with reference to the subject-matter of this suit, but received, handled, and investigated the same on its merits, and never at any time advised plaintiff that the claim would not be considered, or would be rejected, because it was not presented within the time stipulated, and thereby defendant waived the presentation of said claim in the terms of the stipulation in said bill of lading, even if the same was otherwise binding on plaintiff."

There was also contained in the supplemental petition of appellee a plea to the effect that appellant was estopped by its conduct to claim the benefit of the stipulation in said bill of lading providing for notice in writing as to damages, etc., within four months.

The case was submitted to the court, without a jury, upon practically an agreed statement of facts, and judgment was rendered in favor of appellee for the sum of $435.95, with interest thereon at the rate of 6 per cent. per annum from the 20th day of June, 1911. Exception to this judgment was duly made, and notice of appeal duly given, and the cause is now properly before this court for review.

The first assignment of error found in appellant's brief is as follows:

"The court erred in rendering judgment against the defendant, and in favor of the plaintiff, because the undisputed evidence showed that this suit was one for damages claimed to have been received by the plaintiff by reason of the negligence of the defendant company in the handling and transportation of a car of meat from Houston to New York, that the same was an interstate shipment, and defendant's liability, if any, was governed and controlled under and by virtue of the federal statutes and federal laws, and the undisputed evidence further showing that the bill of lading under which said car of meat moved contained a stipulation that no claim for damages should be allowed unless such claim was presented within four months after the arrival of said car of meat at destination, and the undisputed evidence, as well as the agreement on file, show no claim for damages to said meat, was presented to the defendant company or the delivering carrier within the period of four months prescribed and stipulated in said bill of lading."

This assignment is submitted as a proposition. The second proposition under this assignment is as follows:

"The liability sought to be enforced is the liability of an interstate carrier for damages under an interstate contract of shipment, as declared by the Carmack Amendment, and the validity of the stipulation requiring notice to be given within four months raises a federal question, to be determined under the federal law, and cannot be controlled by state laws or legislation."

The following facts were agreed upon by the parties, to wit:

"I. That on June 13, 1911, plaintiff delivered to defendant a carload of dressed beef, in Houston Packing Company car No. 22, to be transported to New York City, N. Y., and that a through bill of lading was issued therefor, which was accepted and signed by plaintiff, said bill of lading being dated June 13, 1911, and which bill of lading contained the following provision: `Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery, or at the point of origin, within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable.' That said car arrived in New York City, and was delivered to consignee on June 20, 1911, and at the time of such delivery the contents of said car were partially damaged.

"II. That no written claim for damages of any character to said shipment was made to the defendant or any of its connecting carriers, or to any of their agents, until October 24, 1911, more than four months after said shipment arrived at its destination and was delivered to consignee, and that on the 24th day of October, 1911, the plaintiff fully notified this defendant, through its agent at Houston, in writing, of the damages claimed by it on account of the negligent handling and improper icing of said car, and that the contents of said car were damaged to the extent of $435.95; and it is further agreed that plaintiff, by reason of the matters asserted in the claim, is entitled to recover of and from defendant said sum of money, unless said claim is defeated on account of plaintiff's failure to give notice of such claim for damages within the time prescribed in said provision of said bill of lading. It is further agreed that both plaintiff and defendant have offices within a short distance of each other in the city of Houston, Harris county, Tex., and that the agents of defendant company at Houston are well known to the officers and agents of plaintiff, and that in a large number of similar shipments of fresh meat by plaintiff over defendant's line of railroad, where damage occurred to such shipments, plaintiff, in the great majority of such instances, gave the defendant written notice of its damage, as provided for in said bill of lading; that the officers and agents of plaintiff intrusted with the shipment of said meat are active and intelligent business men, and are able to read and write the English language, and that plaintiff knew of the condition of said shipment on its arrival at point of destination within the time allowed for notice.

"III. It is further agreed that if the court or jury holds that said provision in said bill of lading is valid, reasonable and binding upon plaintiff, and has never been waived, then plaintiff is not entitled to recover anything in this cause against the defendant herein, or any of its...