St. Louis Southwestern Ry. Co. of Texas v. Overton

178 S.W. 814 | Tex. App. | 1915

Appellant insists that the stipulation in the bill of lading requiring appellee within four months after the tomatoes were delivered in Chicago to make claim in writing to it or to the delivering carrier for the loss he sustained was just and reasonable, and therefore valid; that it conclusively appeared that appellee did not comply with the stipulation; and it further insists that the trial court therefore erred when he refused to give its requested special charge instructing the jury to find in its favor. Appellee, on the other hand, insists that the stipulation was not binding on him, because it operated as limitation of appellant's liability to him and appeared to be without a consideration to support it; and, further, that, if it was binding upon him, it appeared that he had sufficiently complied with it.

We are of opinion appellee's contentions should be overruled and appellant's sustained.

In Stevens Russell v. St. Louis S.W. Ry. Co., 178 S.W. 810, not yet officially reported, the contract being one for an interstate shipment, this court held a stipulation like the one in question here to be valid, though not supported by a consideration independent of the one on which the contract as a whole rested. The holding was based on rulings made by the federal Supreme Court in M., K. T. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 S. Ct. 397, 57 L. Ed. 690; Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; and Cau v. T. P. Ry. Co.,194 U.S. 427, 24 S. Ct. 663, 48 L. Ed. 1053 — determining (as do other cases which might be cited) that the validity of a stipulation in a contract covering an interstate shipment must be tested by the common law as interpreted by the federal courts, and, further, that a stipulation like the one in question here, though not supported by a special consideration, is valid if not unreasonable when considered with reference to the facts of a given case. There is nothing in the facts of the case now before us suggesting a reason why the stipulation should not be treated as reasonable.

Appellee's insistence that the notation made by the agent of the delivering carrier on the expense bill at his instance, "was in effect a notice in writing" in compliance with the stipulation, is not believed to be tenable. Even if it should be said, and we think it should not be, that the agent acted for appellee, and not for the carrier, in making the notation, it was not such notice to the carrier as the stipulation entitled it to. Nor was the notice given by appellee to the delivering carrier, nor that given by the agent of the consignees, that a claim for damages to the tomatoes "would be filed," a compliance with the requirement of the stipulation. Kidwell v. Oregon Short Line Ry. Co., 208 F. 1, 125 C.C.A. 313; The Queen of the Pacific, 180 U.S. 49,21 S. Ct. 278, 45 L. Ed. 419; Clegg v. St. Louis S. F. Ry. Co., 203 F. 971, 122 C.C.A. 273. In the Kidwell Case, the court said, with reference to a provision in the contract that "claims for loss, damage or detention" should be presented by the shipper to the carrier within ten days from the date of the unloading of certain live stock and before they were mingled with other stock:

"Nor is it a compliance (with the provision) to inform the agent at the place of destination that there will be a claim against the company for damages. To impart the information that a claim will be presented is not to present `a claim for loss, damage, or detention.' It does not inform the carrier of the nature, extent, amount, or cause of damage. It gives no definite statement of facts upon which an investigation may be had, or which shows that an investigation is required."

The judgment of the court below will be reversed, and the judgment will be here rendered that appellee take nothing by his suit against appellant.