Appeal from Lubbock County Court; E. R. Haynes, Judge.
HALL, J.
Appellee sued appellant railway company to recover $850 damages alleged to have been sustained as the result of delay in the transportation of five cars of cattle shipped from Abernathy, Tex., to Kansas City, Mo. A trial resulted in a verdict and judgment in appellee's favor in the sum of $517.17.
Plaintiff alleged that about 2:30 o'clock p. m., October 23, 1914, he delivered to defendant 189 head of cattle, which were accepted for safe and speedy transportation as a through shipment from Abernathy, Tex., to Kansas City, and that thereby defendant became bound to transport said shipment with reasonable speed and safety; that the cattle did not reach Kansas City until 11:30 p. m. October 26th; that the time consumed in transportation was unreasonably long, by about 24 hours; that said delays specified in the pleading occurred en route, each alleged to have been unreasonable; that the cattle were placed in muddy pens and detained there for an unreasonable time; that as the result of such delays and detention there was a decline in the market value of the cattle to plaintiff's damage in the sum of $800.
Defendant answered by general and special demurrers, special denial of each of the material allegations of plaintiff's petition, and by special pleas set up, among other things, the following:
"(a) That such cattle were by it received, and by it and its connecting carriers transported from Abernathy, Tex., to Kansas City, Mo., interstate, as common carriers of freight, by rail, and in accordance with the provisions of a written contract theretofore made and entered into between plaintiff and defendants. (b) That such contracts were made for the transportation
of said cattle at the lower of two rates the carriers had caused to be filed with the Interstate Commerce Commission and duly published at which they could by law transport such cattle, which lower rate the plaintiff had accepted as the rate for the transportation of his cattle, the choice of the two rates being open to plaintiff, the higher being for transportation without limitation of liability, and the lower for transportation with the limitations specified in the contract. (c) That by such contract it was agreed, among other things, in substance: (1) That the stock were not to be transported within any specified time nor delivered at destination at any particular hour nor in season for any particular market; (2) that the company would stop for watering and feeding only at such stations as it had adequate facilities for feeding and watering, and that plaintiff should not confine his stock in the cars for a longer period than 28 hours without unloading for rest, feeding, and watering; (3) that in case of loss or damage from any cause for which the defendant might be liable payments should be made therefor only on the basis of the actual cash value at the time and place of shipment, in no case to exceed the valuation therein specified, which was for an ox, steer, or bull $50, for a cow $30, and for a calf $10 per head; (4) that in order that any loss or damage claims by plaintiff might be fully and fairly investigated, and the facts and nature of such claims and loss preserved beyond dispute and by the best evidence, and as a condition precedent to the right to recover any damages for any loss or injury to his stock during the transportation thereof, or at any time or place where the same might be loaded or unloaded for any purpose, or previous to the loading thereof for shipment, the plaintiff or his agent in charge should give notice of their claims therefor to some officer of the company or to the nearest station agent, if delivered to the consignee at a point beyond the company's road, to the nearest station agent of the last carrier making such delivery, before such stock should be removed from the place of destination or from the place of delivery, and before such stock should have been slaughtered or intermingled with other stock, and that plaintiff would not remove such stock from such station or stockyards until the expiration of three hours after the giving of such notice, and that a failure to comply with the terms of this clause in said contract in any respect should be a complete bar to any recovery of any and all such damages; (5) that such recitals and limitations upon the liability of the carriers were made in consideration of the lower of the two rates, which the shipper acknowledged that he had chosen, having had full opportunity to choose the rate at the carrier's risk, or limited liability at the rate chosen and stipulated in the contracts. (d) That, though the defendant and its connecting carrier had on their respective lines at each and all places where all said cattle were stopped or delayed in transit station agents and other officers and agents to whom such notice could and reasonably should have been given, and though the delivering carrier, the Atchison, Topeka & Santa Fé Railway Company, had such officers and agents at Kansas City to whom plaintiff could and reasonably should have given such notice, plaintiff wholly failed to give notice in writing of his claim for damages before such stock were removed from the place of destination or from the place of delivery, and before such stock was slaughtered or intermingled with other stock within the time and manner and form as required by such shipping contracts, the provisions of which are reasonable and just, so that plaintiff could and reasonably should have given such notice as he had contracted and agreed to do."
In addition to the demurrers and denials, plaintiff, by supplemental petition, replied to defendant's answer, among other matters alleging:
"That as a special answer herein plaintiff says that said cattle were received and transported by the defendant under a verbal contract of shipment made and entered into by and between plaintiff and defendant three or four days before said cattle were delivered to the defendant for shipment, and that by the terms of said agreement the defendant agreed for a valuable consideration to transport said cattle with reasonable speed and safety to the point of destination, as alleged in plaintiff's original petition."
"That, if it be true, as alleged by the defendant, that a written contract was issued by the defendant and entered into by the plaintiff, that the same was not binding, and was without consideration, and attained by fraud and under duress, as more particularly alleged herein;...
