Missouri Pac. Ry. Co. v. Harris

• Citation: 2 S.W. 574
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> HARRIS.
• Decision Date: 17 December 1886
• Court: Supreme Court of Texas

2 S.W. 574

MISSOURI PAC. RY. CO.v.

HARRIS.

Supreme Court of Texas.

December 17, 1886.

Appeal from Tarrant county.

Action against carrier. Judgment for plaintiff. Defendant appeals.

Davis & Beall, for appellant. A. M. Carter, for appellee.

STAYTON, J.

This action was brought by the appellee to recover damages for injury claimed to have been received by the failure of the appellant, within a reasonable time, to transport 285 head of beeves from Temple, Texas, to Chicago, Illinois, and to recover the value of one beef claimed to have been lost through the appellant's negligence. It is claimed that the beeves were deteriorated in value by the long time in which they were in course of transportation. The appellant alleged that, in consideration it would transport the beeves at a reduced price, the appellee, by special contracts, agreed to assume all risk of damage the cattle might sustain by reason of any delay in transportation, unless such damage resulted from the willful negligence of its agents. The appellant further pleaded that it was agreed, by special contract, "that, as a condition precedent to plaintiff's rights to recover damage for any loss or injury to said cattle, he should give notice in writing of his claim therefor to said officers of defendant, or its nearest station agent, before said cattle were removed from their said place of destination above mentioned, and before they were mingled with other stock." Three special contracts, covering all the beeves, were made exhibits to the answer. These contracts were elaborately drawn, and in terms released the appellant from liability for losses resulting from many things for which a common carrier would ordinarily be liable; but, as no claim for damages is based on the violation of duty by the carrier in any other respects than as above stated, it will not be necessary to consider them.

The appellee filed demurrers to so much of the answer as set up the special contracts, and these demurrers were sustained. It is claimed that this was error. It was at one time held that carriers of animals did not incur the responsibilities of common carriers, but they were private carriers, and subject only to such responsibility as the law imposed upon such bailees, or as the contracts of the parties fixed. This holding, however, has long since ceased to be held correct; and it is now held that the carriers of such property are common carriers, subject to the same responsibilities as carriers of other classes of property, except as this is modified by the inherent character of such property. By the constitution of this state, railroads are declared to be common carriers. Const. art. 10, § 2. And it is common knowledge that a large part of the business of these corporations, in this state, is the transportation of animals. The appellant must be held to have received the beeves for transportation as a common carrier; and in so far as it sought to shield itself from responsibility for an unnecessary delay in their transportation, through a special contract which sought to limit its liability to such injury as resulted from the "willful negligence" of its agents, its effort must be held unavailing. By "willful negligence" was evidently meant some gross omission of duty, involving intentional or willful misconduct. The common carrier cannot, by contract, relieve itself from liability for an injury resulting from the negligence of itself or servants, though the negligence be of a degree less than was intended by the term used. The provision in the contract requiring notice of a claim for damages is as follows: "Said party of the second part further agrees, as a condition precedent to his rights to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of the delivery of the same to the party of the second part, and before such stock is mingled with other stock."

There are many cases holding that a common carrier may, by contract, limit the time within which claim for loss must be made. In Express Co. v. Caldwell, 21 Wall. 264, it was held that an agreement that an express company should not be liable for the loss of a package unless claim was made within 90 days after the package was delivered to the carrier, it requiring but a single day to transport the package to the place for delivery, was valid. The same ruling was made in the case of Westcott v. Fargo, 61 N. Y. 542, and in the case of Express Co. v. Harris, 51 Ind. 127. In Express Co. v. Caldwell such an agreement was held to operate as a limitation on the carrier's...