St. Louis S. W. R. Co. of Texas v. Hays
| Decision Date | 06 May 1896 |
| Parties | ST. LOUIS S. W. R. CO. OF TEXAS v. HAYS. |
| Court | Texas Court of Appeals |
Appeal from district court, Titus county; John L. Sheppard, Judge.
Action by J. J. Hays against the St. Louis Southwestern Railroad Company of Texas for damages caused by defendant's alleged negligence in the transportation of freight. Plaintiff had judgment, and defendant appeals. Affirmed.
Sam H. West and Todd & Rodgers, for appellant. Jeff McLean and Hiram Glass, for appellee.
1. Suit by appellee for $1,000 damages, caused by the alleged negligence of appellant in transporting a jack from Ft. Worth to Mt. Pleasant, Tex. Trial by the court, and judgment for appellee for $300.
2. The court properly overruled appellant's exception to appellee's petition, based upon the proposition that compliance with the stipulation in the contract of shipment requiring notice of his claim for damages to be given was a condition precedent to his right to sue. The contract was made March 30, 1893, and the animal delivered to appellee, at its destination, March 31, 1893. The contract required appellee to give notice of his claim for damages within one day after the property was delivered to him by appellant. The act of March 4, 1891 (Rev. St. 1895, art. 3379), declares that "any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void," and it also places the burden of proof on that issue on the defendant. Besides, apart from the statute referred to, the burden of proof would be on appellant. Railway Co. v. Greathouse, 82 Tex. 105, 17 S. W. 834.
3. What has been said concerning the act of March 4, 1891, disposes of the third assignment of error. The stipulation requiring notice of appellee's claim for damages to be given in less than 90 days was in the face of the statute, and void. Besides, the burden was on appellant to show appellee's noncompliance with the contract; and, while it showed that no such notice was given to its agent at Mt. Pleasant, the place of destination, it did not show that notice was not given to its general officers, as authorized by the contract. Hence, if the contract was valid, it was not shown that appellee had breached it.
4. The evidence shows clearly that the animal was worth $600 when received by appellant, and appellee testified that, when appellant delivered it to him at Mt. Pleasant, it was worth less. He and other witnesses described the injuries that soon...
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