Stevens v. St. Louis Southwestern Ry. Co. , 1915 Tex. App. LEXIS 855 ( 1915 )

WILLSON, C. J.

July 2, 1910, appellants delivered to appellee at Stephens, Ark., 475 bales of cotton to be transported over appel-lee’s and connecting lines of railway to New York City. Appellants claimed, and offered evidence tending to prove, that the cotton was in good condition when it was delivered to appellee, and that it was in bad condition from exposure to the weather when it reached its destination. They further claimed, and offered evidence to prove, that their purpose in shipping the cotton to New York was to enable them to comply with .contracts they had made to deliver there in July cotton they had sold, and that appellee had notice of their purpose before and at the time it accepted same for transportation as stated. Appellants further claimed that the cotton was not promptly carried to its destination, but that, on the contrary, the transportation thereof was negligently delayed, so that same did not reach New York in time to be used by them in complying with their said contracts. They claimed that because of such delay they had to buy on the market in New York the cotton needed to fill said contracts, at a loss to them, in the difference between prices they had to pay and the prices at which they had agreed to sell, of $2,000. They further claimed that they had to expend $712.50 in having the cotton so “reconditioned” as to be marketable after it reached its destination, and that they lost $940.58 due to depreciation in the market value of a portion of the cotton because of its damaged condition. They sought a recovery against appellee of the aggregate of the sums mentioned, to wit, $3,653.08. The court instructed the jury to find in appellee’s favor, and on their verdict in accordance with the instruction rendered judgment that appellants take nothing by their suit against appellee.

[1] As stated above, there was testimony tending to show that the cotton was injured toy exposure to the weather after it was delivered to appellee and before it reached New York, and that as a consequence thereof a portion of it was worth less than it otherwise would have been worth, and that appellants incurred expense in reconditioning it they otherwise would not have been subjected to. Clearly, therefore, unless it appeared that appellee, by the terms of the contract covering the shipment, had been relieved of the liability it may have incurred to compensate appellants for damages such testimony tended to show they had suffered, the trial court erred in instructing the jury as stated. That court evidently was of opinion appellee had been so relieved by the failure of appellants to comply with a stipulation in the policy as follows:

“Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

It was shown that all the cotton was delivered in New York before August 20, 1910, and it was shown that appellants did not make any claim on account of the damages they sued for until December 31, 1910. It thus appeared that the stipulation set out above was not complied with. So the question is: Did the failure of appellants to comply with it operate to bar a right in them, if they ever had one, to recover the damages they sued for?

Appellants insist the stipulation was invalid under that part, known as the Carmack amendment, of section 20 of the Interstate Commerce Act, as follows:

“That 'any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common earlier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulattion shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.” U. S. Comp. St. 1913, § 8592.

The contrary seems to have been in effect determined in Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690. In that case it was contended that a stipulation in a contract that no suit should be brought after the lapse of 90 days from the happening of any loss or damage, “any statute or limitation to the.contrary notwithstanding,” was void. The trial court and Court of Civil Appeals sustained the contention. The Supreme Court overruled it, and, after saying that “the liability sought to he enforced is the ‘liability’ of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn Act of June 29, 1906,” and that “the validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or legislation,” declared that:

“The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.”

[2] This court is bound by the construction given by that court to the statute referred to. We see no reason why iif the stipulation in question in that case should be held to be valid, notwithstanding the statute, the one in question here should not be. It was expressly held by that court, in Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556, that a stipulation similar to the one here was valid under the common law. In that case the court said:

“It may be remarked, in the first place, that the stipulation is not a conventional limitation of the right of the carrier’s employer to sue. He is left at liberty to sue at any time within the period fixed by the statute of limitations. He is only required to make his claim within 90 days, in season to enable the carrier to ascertain whiat the facts are, and, having made his claim, he may delay his suit. It may also be remarked that the contract is not a stipulation for exemption from responsibility for the defendants’ negligence, or for that of their servants. It is freely conceded that, had it been such, it would have been against the policy of the law, and inoperative. * * * A common carrier is always responsible for his negligence, no matter what his stipulations may be. But an agreement that, in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence, and of capacity, which the strictest rules of the common law ever required.”

[3] The contention made that it appeared that the stipulation was void because it was without consideration cannot be sustained. Cau v. T. & P. Ry. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; 5 A. & E. Enc. Law, pp. 300, 320, 321.

[4] It is believed the evidence did not make an issue as to whether appellee had waived the failure of appellants to comply with the stipulation or not. The only testimony we have been able to find in the record which could with any reason be said to have been relevant to such an issue was the letter of appellee’s auditor to appellants, dated January 21, 1011, as follows:

“Please refer to • your claim of December 31, 1910, for $3,S6S.66, alleged damages in con-neetion with a shipment of 475 bales of cotton from Stephens, Ark., to New York, N. Y., and let me have particulars as to in what manner this company violated its contract. I have before me a certified copy of the contract, which consigns this freight to the order of Stevens & Russell, New York, N. Y., notify Herklotz, Corn ►& Co., % Warehouse Independent Stores New York City, N. Y. Our records show that the cotton in question was delivered. to our connections with these billing instructions.”

It was not shown that appellants complied, with the auditor’s request, did anything toward complying with it, or replied at all to his letter to them.

It has been held that a stipulation like the one in question here has no application to “a claim for damages occasioned by a fall in price on account of the carrier’s delay in delivering, as the damages contemplated by the contract are those resulting to the goods through injury or loss in transportation.” Notwithstanding this rule, we are of opinion the trial court did not err when he instructed the jury as stated, because the testimony, as we understand it, did not authorize a finding that the shipment was negligently delayed. As appellants contemplated it would be at the time they entered into the contract, the cotton was carried from Stephens to Pine Bluff, where it was delivered to a compress company to be compressed. The time reasonably necessary to consume to compress it was not shown. Nor -was it shown when the cotton was redelivered to appellee by the compress company. Nor was it shown what would have been a reasonable time within which to transport the cotton from Stephens to New York, either allowing or not allowing for delay necessary to have it compressed en route as contemplated by appellants. It was shown that all except 38 bales of the cotton was receipted for and unloaded at New York between July 20th and July 30th, and that the 38 bales was receipted for and unloaded there August 19th; but the time when the cotton, or any of it, reached New York, was not shown.

The judgment is affirmed.

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