St. Louis, B. & M. Ry. Co. v. Marcofich

• Decision Date: 24 March 1916
• Docket Number: (No. 1543.)
• Citation: 185 S.W. 51
• Parties: ST. LOUIS, B. & M. RY. CO. et al. v. MARCOFICH.
• Court: Texas Court of Appeals

185 S.W. 51

ST. LOUIS, B. & M. RY. CO. et al. v.MARCOFICH.

(No. 1543.)

Court of Civil Appeals of Texas. Texarkana.

March 24, 1916.

Rehearing Denied April 13, 1916.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Action by Frank Marcofich against the St. Louis, Brownsville & Mexico Railway Company and others.From a judgment for plaintiff, certain defendants appeal.Affirmed.

January 23, 1914, appellee delivered 103 head of mules to appellant St. Louis, Brownsville & Mexico Railway Company to be transported by it and connecting lines from Brownsville to Texarkana.The mules left Brownsville between 2 and 4:30 o'clock p. m. of that day, reached Houston about 4 o'clock p. m. of January 25th, and reached Longview about 2 o'clock a. m., and Texarkana 4 o'clock p. m., of January 28th.They were carried by said appellant over its line of railway from Brownsville to Houston, a distance of 372 miles, by appellantInternational & Great Northern Railway Company over its line from Houston to Longview, a distance of 232 miles, and by appelleeTexas & Pacific Railway Company from Longview to Texarkana, a distance of 90 miles.Appellee's suit, commenced May 2, 1914, was against each and all of said railway companies.In his petition he alleged that they —

"were negligent and careless and were guilty of delays, which were caused and brought about by the said negligence of them, and each of them, so that a greatly unreasonable period of time was consumed in the transportation of said mules from Brownsville to Texarkana, and on account of the negligence of the defendants, and each of them, two of said mules were cut, bruised and injured in such manner as to render them practically worthless; that one of such two mules was damaged in its value and market value to the extent of $60 and the other to the extent of $40, and the remaining 101 head were greatly damaged, gaunted and impaired in their market value, so that when they reached Texarkana each and all of said mules was, and were, worth $15 per head less than they would have been had they been carried without the negligence of the defendants as aforesaid."

In its answer appellant St. Louis, Brownsville & Mexico Railway Company alleged that its contract with appellee covered the transportation of the mules to Houston only; that it did that "without negligence," and there delivered the mules to its connecting carrier, appellantInternational & Great Northern Railway Company; and further alleged, as a bar to appellee's suit, a failure on his part to comply with a stipulation in the contract alleged to be as follows:

"That as a condition precedent to his right to recover any damages for any loss or injury to said live stock or delay to said stock or damages by reason of depreciation in the market or for any other cause whatsoever connected with the shipment of the said stock, he(plaintiff) shall within 91 days after the happening of the injuries or damages complained of, file with the general freight agent of the party of the first part (this defendant), or some freight or station agent of the party of the first part (this defendant), his (plaintiff's) claim therefor, giving the full amount thereof in detail."

The answer of appellantInternational & Great Northern Railway Company was substantially the same as that of its coappellant St. Louis, Brownsville & Mexico Railway Company, except that the stipulation as to notice in its contract with appellee was alleged to be as follows:

"That said second party(plaintiff herein) further especially agrees as a condition precedent to his right to recover for any damages or for any loss or injury to said stock during the transportation thereof * * * that he will give definite written notice of his claim to some general officer or agent of the first party(defendant) as soon after the occurrence of such loss, damage or injury as the circumstances will permit, and that should he fail from any cause to give the party of the first part the said written notice within 91 days from the date of the loss, damage or injury to said stock, his failure to do so shall be a complete bar to any recovery on any and all such claims."

In its answer each of said appellants prayed that, in the event it should be determined that appellee was entitled to damages, same should be apportioned between them according to their respective responsibility therefor.

In a supplemental petitionappellee alleged that the stipulations in the contracts set up by appellants requiring him, as a condition precedent to his right to recover damages he suffered, to give written notice thereof within 91 days after the happening of the injury to the mules, were void because unreasonable and without a consideration to support them.AppelleeTexas & Pacific Railway Company also answered, but, as judgment was rendered in its favor and is not complained of, it is unnecessary to specify the grounds of its defense to the suit.

One S. P. Threadgill intervened in the suit, claiming to be the owner of an interest in the cause of action asserted by appellee.As he failed to recover anything and has not appealed, his intervention will not be mentioned further.

The verdict of the jury was in appellee's favor against appellants for $850, which they apportioned as follows: $600 against appellant St. Louis, Brownsville & Mexico Railway Company, and $250 against appellantInternational & Great Northern Railway Company.

Glass, Estes, King & Burford, of Texarkana, and J. M. Burford, of Mt. Pleasant, for appellants....