Texas Cent. R. Co. v. Shirley

• Court: Texas Court of Appeals
• Writing for the Court: Conner
• Citation: Texas Cent. R. Co. v. Shirley, 130 S.W. 687, 62 Tex.Civ.App. 158 (Tex. App. 1910)
• Decision Date: 04 June 1910
• Parties: TEXAS CENT. R. CO. v. SHIRLEY et al.

Page 687

130 S.W. 687

TEXAS CENT. R. CO. v. SHIRLEY et al.

Court of Civil Appeals of Texas.

June 4, 1910.

Appeal from Shackelford County Court; W. L. Morris, Judge.

Suit by W. A. Shirley against the Texas Central Railroad Company and another. There was a judgment against the defendant railroad company named in favor of plaintiff, and also against it for the costs of the other defendant which obtained a judgment in its favor against plaintiffs, and the defendant named appeals. Reversed.

J. A. Kibler and A. A. Clarke, for appellant. R. L. Allen, Jas. P. Kinnard, and Earl Conner, for appellees.

CONNER, C. J.

Appellee, W. A. Shirley, instituted this suit in the county court of Shackelford county against the Texas Central Railroad Company and the Texas & Pacific Railway Company to recover damages to cattle in the sum of $613.73 because of an alleged delay in the shipping pens at Albany, the initial point of the shipment, and because of delays and negligence on the part of both companies in the transportation from Albany, via Cisco, to Ft. Worth, the final destination. The trial resulted in a judgment in favor of the Texas & Pacific Railway Company and in favor of appellee, Shirley, against the appellant, the Texas Central Railroad Company, for the sum of $151, with interest thereon at the rate of 6 per cent. per annum from October 20, 1908. The court also rendered judgment that the Texas & Pacific Railway Company recover its costs from appellant.

Numerous assignments have been presented, but we find no error prejudicial to appellant except as presented in the fifteenth and twenty-fifth assignments. In the fifteenth assignment complaint is made of the court's refusal to give a special instruction to the effect that the twelfth clause of the written contract of shipment pleaded by appellant constituted a waiver or release on the part of the plaintiff of all claims for damages to the shipment which might be the result of "any delay in the loading and starting of the cattle to market before the signing of the written contracts or bills of lading, unless the jury should find from the evidence that the plaintiff signed the written contract under such circumstances constituting duress." The clause of the contract referred to, and which appellant duly pleaded, provides that "the shipper hereby releases and waives any and all causes of action for damages by reason of any written or verbal contract for the shipment of said cattle prior to the execution hereof. And hereby releases the party of the first part (the railway company) from liability for any damage which may have been sustained to said cattle by reason of the delay in the shipment of said cattle after being tendered or received for shipment at point of origin prior to the execution hereof."

Appellee, Shirley, pleaded that the contract had...