Texas & P. Ry. Co. v. Langbehn

• Decision Date: 29 May 1913
• Citation: 158 S.W. 244
• Parties: TEXAS & P. RY. CO. v. LANGBEHN.
• Court: Texas Court of Appeals

158 S.W. 244

TEXAS & P. RY. CO. v. LANGBEHN.

Court of Civil Appeals of Texas.

May 29, 1913.

On motion for further rehearing. Motion overruled.

For former opinion and rehearing, see 150 S. W. 1188.

REESE, J.

This case has had a rather tumultuous career in this court. The history thereof is as follows: On May 20, 1912, the judgment of the trial court was in all things affirmed. The opinion of the court will be found in 150 S. W. 1190. Appellant, on June 4, 1912, filed a motion for rehearing, which was carried over to the present term, and on October 11, 1912, the motion was granted in part, and the judgment of the trial court was reversed, and judgment rendered for appellee as to the value of the three bales of cotton marked "DONE." The judgment as to the value of the cotton marked "LKWB" was undisturbed. The opinion on this motion for rehearing will also be found in 150 S. W. 1188. Within 15 days after the rendition of this opinion appellee filed a motion for a rehearing, which was overruled October 31, 1912. The case remained in this condition until February 13, 1913, when appellee filed a second motion for rehearing, when for the first time the proposition is advanced by him that, under the decision in Taber v. W. U. Tel. Co., 137 S. W. 106, 34 L. R. A. (N. S.) 185, the stipulation in the bill of lading that "in no event shall any suit be sustained, unless the same shall be commenced before the expiration of two years from the date the cause of action occurred" was invalid. After the filing of this motion, being in some doubt as to the validity of this stipulation, we held up this motion to await the answer of the Supreme Court to a certified question in the case of Elder, Dempster & Co. v. Ry. Co., 154 S. W. 975, as to whether the two or four years' statute of limitation applied to this kind of an action. The Supreme Court having replied that the four-year statute applied, appellant's case, so far as this point is concerned, rested entirely upon the contractual limitation of two years stipulated in the shipping contract. If this stipulation is valid, then this motion of appellee must be overruled, and our opinion on appellant's motion for rehearing, as against appellee's attack upon it, must stand. This second motion of appellee for rehearing might be dismissed without consideration, but we have deemed it best to pass upon it regularly, as it, together with the reply thereto filed by appellant, raises important questions not heretofore raised or passed upon in this case.

The stipulation in the bill of lading in this case is as follows: "In no event shall any suit or action in any court for damages arising from any breach of this contract, or for damages or injury to or loss or destruction of said cotton, or any part thereof, be sustained, unless the same shall be commenced before the expiration of two years from the date when such breach, injury, loss, or destruction occurred, and the lapse of such time shall be conclusive evidence against the validity of any such claim or demand." The statute under which it is contended that this stipulation is invalid is article 5713, R. S. of 1911 (article 3378, R. S. of 1895), which is as follows: "It shall be unlawful for any person, firm, corporation, association or combination of whatsoever kind to enter into any stipulation, contract or agreement by reason whereof, the time in which to sue thereon is limited to a shorter period than two years. And no stipulation, contract or agreement for any such shorter limitation in which to sue shall ever be valid in this state."

Reasoning by analogy from the doctrine announced in the Taber Case, supra, it is contended that by the terms of the statute quoted no contract or agreement shall be valid which does not allow full two years for bringing the suit, this construction being given to the language of the statute, and that the contract in this case, requiring suit to be brought "before the expiration of two years" from the time the cause of action accrued, does not allow two full years for bringing such suit. In the Taber Case the stipulation as to notice required such notice to be given "within ninety days." It was contended that this stipulation in the contract was void under article 5714, R. S. 1911 (article 3379, Sayles' Civil Statutes) which is as follows: "No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void." It was held by the Supreme Court that the term "within ninety days" must be construed to mean "before the expiration of ninety days," and that this did not allow full 90 days for presenting the claim, and was void under the statute. We followed this decision in its application to a similar stipulation as to notice in this case. See original opinion referred to; also in the case of Smith v. I. & G. N. R. R. Co., 138 S. W. 1075.

There is no reasonable ground upon which this case, so far as concerns the contractual limitation, can be distinguished from the Taber Case. There is a slight difference in the verbiage of articles 3378 and 3379, but it would be like "dividing a hair `twixt south and southeast side" to discern any difference in meaning between the words "a shorter period" and "a less period." The stipulation in the contract in the Taber Case required notice to be given "within 90 days." In the present contract suit is required to be brought "before the expiration of two years." In the Taber Case the court says: "The provision in the contract requiring that notice shall be given within 90 days we construe to mean that notice shall be given before the expiration of 90 days." The provisions of the two articles of the statute are identical in meaning. The stipulations in the two contracts are identical in meaning. There is no escape from the logical conclusion that if the contract in the Taber Case was void under article 3379, this contract is void under article 3378. We cannot agree with appellant's counsel that this much of the opinion in the Taber Case was dictum. It is true that the contract there under discussion was held void and was clearly void on another ground, but the real emphasis is placed upon the first ground referred to. Black's Law Dictionary, "Dictum" and "Obitur...