Wichita Valley Ry. Co. v. Davis

• Decision Date: 04 June 1925
• Docket Number: (No. 1760.)
• Citation: 275 S.W. 169
• Parties: WICHITA VALLEY RY. CO. v. DAVIS.
• Court: Texas Court of Appeals

275 S.W. 169

WICHITA VALLEY RY. CO. v. DAVIS.

(No. 1760.)

Court of Civil Appeals of Texas. El Paso.

June 4, 1925.

Rehearing Denied June 25, 1925.

Appeal from District Court, Haskell County; Bruce W. Bryant, Judge.

Action by J. C. Davis against the Wichita Valley Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ratliff & Ratliff, of Haskell, and Thompson, Barwise & Wharton, of Fort Worth, for appellant.

W. H. Murchison and Tom Davis, both of Haskell, and Theodore Mack, of Fort Worth, for appellee.

HIGGINS, J.

The appellee sued the appellant to recover damages alleged to have accrued to him by the negligence of appellant in the transportation of a shipment of cattle from Sagerton, Tex., to Kansas City, Mo., on October 10, 1922. The usual allegations of careless and negligent operation of the train and unreasonable negligent delay in transit were made.

The defendant answered by a general denial and two special pleas: (1) A stipulation in the bill of lading releasing the carrier from any injury or loss caused by delay in transportation due to strikes, and that at the time of the shipment the "shop craft strike" was in progress, and the delay was caused thereby. (2) A failure to give notice in writing within 91 days of the alleged losses, injuries and delays for which the damages were claimed as required by the bill of lading.

By supplemental petition the plaintiff alleged he gave the notice as required by the bill of lading. The case was tried without the aid of a jury and judgment rendered in favor of Davis for $869.

Appellant complains of the failure by the trial court to file findings of fact and conclusions of law. The record contains no bill of exception with respect to this matter. There is nothing in the record to even show that a request was made of the court to file separate findings and conclusions. In this state of the record, this matter presents no error which can be reviewed. Trippett v. Nash McLarty Motor Co. (Tex. Civ. App.) 269 S. W. 205.

As to those assignments and propositions relating to the alleged failure to give the notice within 91 days as stipulated in the bill of lading, this matter presents no error, for the reason that the action is for damages caused by delay and careless and negligent handling in transit, and in such cases no notice nor filing of claim is required as a condition precedent to recovery. Act of Congress of March 4, 1915 (1916 Supplement Federal Statutes Annotated, pp. 124, 125), and amendatory act of February 28, 1920 (U. S. Comp. St. Ann. Supp. 1923, § 8604a).

Furthermore, there is evidence to support the finding that such notice was in fact given. This is shown by the testimony of Judge Murchison, attorney for appellee, to the effect that when the claim was placed in his hands for collection he "immediately wrote a letter to the local agent at Sagerton, notifying him of the claim and the amount, and forwarded it through due course of mail, and I retained a carbon copy of it." The copy referred to by the witness shows the letter was dated December 15, 1922, and addressed to the local agent of appellant at Sagerton, Tex. Appellant's agent at Sagerton denied that the letter was received by him, and under some authorities such testimony destroys the presumption arising in such cases. But the weight of authority and the better view is that such denial merely raises an issue of fact which is for the decision of the jury, or the court in cases tried without a jury. Rosenthall v. Walker, 111 U. S. 185, 4 S. Ct. 382, 28 L. Ed. 395; Huntley v. Whittier, 105 Mass. 391, 7 Am. Rep. 536; Southern, etc., v. Vaughan, 98 Ark. 388, 135 S. W. 913, Ann. Cas. 1912D, 1062, and other cases cited in notes 4 Ann. Cas. 956, and 49 L. R. A. (N. S.) 468. This is the rule which prevails in this state. Insurance Co. v. Fields (...