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

• Decision Date: 05 December 1890
• Citation: 15 S.W. 164
• Parties: McCARTY <I>et al.</I> v. GULF, C. & S. F. RY. CO.
• Court: Texas Supreme Court

15 S.W. 164

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

Supreme Court of Texas.

December 5, 1890.

Appeal from district court, Ellis county; ANSON RAINEY, Judge.

D. F. Singleton, G. C. Grace, and M. B. Templeton, for appellants. Alexander Clark and T. W. Terry, for appellee.

STAYTON, C. J.

Appellants sue to recover for injury to cattle resulting from two causes, for both of which it is claimed appellee is liable. (1) It is claimed that appellee contracted to furnish cars and to receive appellants' beeves on September 24, 1887, for transportation from Ballinger, Tex., to Chicago, Ill., but that appellee failed to do this until four days afterwards, whereby they were damaged on account of deterioration of cattle while held at or near place of shipment, where the pasturage was not good; and further, that on account of this delay appellants were compelled to incur expenses that would not have been necessary had the cars been furnished and the beeves shipped as per contract set up by appellants. (2) It is claimed that the beeves were roughly handled after they were received, and that there was unreasonable delay in transportation, which caused increased expense, deterioration of the cattle, and loss in other ways. It was claimed that the contract to furnish cars and receive the beeves on the 24th September was made by the railway company's station agent at Ballinger, and his authority to make such a contract, as well as the fact whether he assumed to do so, was controverted. Appellee alleged that the beeves were shipped under a written contract which contained the following stipulations: "It is further agreed between the parties hereto that in case the live-stock mentioned herein is to be transported over the line or lines of any other railroad or steam-boat company, the said party of the first part shall be released from liability of any kind, after said livestock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees, the understanding of both parties hereto being that the party of the first part shall not be held or deemed liable for anything beyond the line of the Gulf, Colorado & Santa Fe Railway, excepting to protect the through rate of freight named herein." "Now, in consideration that said party of the first part will transport for the party of the second part five car-loads of cattle from Ballinger to McGregor station, delivering it at last-named station to its connecting lines for transportation to Chicago, at the rate of $102.50 per car-load from Ballinger to Chicago. Ill., the same being a special rate, lower than the regular rate mentioned in their tariff, the said party of the second part hereby agrees and stipulates that in consideration of such special rate and reduction, with full knowledge of the common-law and statutory liabilities of common carriers, that he expressly waives, releases, and relinquishes to said railway company all right, interest, or claim to any damage or damages, future or prospective, which said party of the second part might have claimed by reason of delay, injury, or otherwise, in case this waiver or release had not been inserted in this contract, except such only as a private carrier might be liable for, and from any liability for any delay in shipping said stock after the delivery thereof to the agent of said party of the first part, or for any delay in receiving the same after being tendered to said agent. It is furthermore hereby and herein expressly and mutually agreed that no suit or action against this company for recovery of any claim by virtue of this contract shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within forty days next after the damage shall have accrued, and should any action be commenced after the expiration of the aforesaid forty days, the lapse of time shall be taken and deemed conclusive evidence against the validity of such claim, any statute or limitation to the contrary notwithstanding." The contract was proved as alleged, and it was shown that the beeves were transported on appellee's road, after they were received, from Ballinger to McGregor, without injury or unnecessary delay, and that at the latter place the...