Int. & G. N. R'y Co. v. Underwood , 1884 Tex. LEXIS 180 ( 1884 )

West, Associate Justice.

A large number of cases can no doubt be found to the effect that a common carrier may lawfully, by stipulation in writing, require the party seeking to recover for injuries sustained to give him notice in writing as to the nature of such damage, at the time of its occurrence.

In a carefully prepared opinion, Presiding Judge Walker of the commission of appeals reviews to some extent the cases bearing on this question. The authorities referred to, and to some extent discussed by him in that case, seem to sustain the views therein expressed. As to the correctness of his conclusions, it is not necessary in this case to determine, and on that point we express no opinion. The case referred to (Missouri Pac. R’y Co. v. Harris) is to be found in White & Willson’s Civil Cases of the Court of Appeals, p. 730, sec. 1257. See, also, on the same subject, Bedfield on “ Carriers and other Bailments,” where this question is discussed at some length, and some of the more important cases examined. Chapters 12 and 13.

In the case now under consideration, while the written contract offered in evidence required notice of the damage to be given in writing there was considerable proof adduced going to show that the provision in the contract to this effect was in this case waived by the parties to it.

There is testimony which shows that the agent of appellant was, at the time of the occurrence, at once notified of the extent of the damage sustained, and that he then, after looking into the matter, agreed with appellee to pay him a fixed sum in satisfaction of his claim.

The evidence .introduced on this point, as it appears from the statement of facts, which by order of the court was filed after the court adjourned, was objected to. What the ground of objection to it was, does not appear in the record. The objection appears to be general in its character, and is inserted in the statement of facts; and even if it had been special, there being no bill of exceptions filed during term time to its admission, it could not now be considered. Howard v. Mayor of Houston, 59 Tex., 78; Blum v. Schram & Co., 58 Tex., 524; Sabine & E. Tex. R. Co. v. Joachimi, 58 Tex., 452; R. S., art. 1363.

[Opinion delivered June 6, 1884.]

Even, however, if such bill of exceptions had been prepared and saved in time, and we were to consider it, it does not affirmatively appear from the record that the notice of injury which was given by the appellee was nob then considered by all the parties as sufficient. It plainly appears from the evidence that the appellant at the time considered the notice given, whatever it was, as sufficient, and agreed with appellee upon the sum to be paid, the amount being the same that was found by the judgment of the court to be the proper amount.

This case has been twice tried, with the same result on each trial, and- as the record discloses no material error, the judgment is affirmed.

Affirmed.