M., K. T. Ry. Co. v. Godair Commission , 39 Tex. Civ. App. 298 ( 1905 )

The Godair Commission Company and Davis Bros. sued the Missouri, Kansas Texas Railway Company for damages on account of delay and rough handling in transit of certain shipments of cattle. There were two suits, but by agreement they were consolidated and tried together, resulting in a verdict and judgment in favor of Godair Commission Company for $450, and Davis Bros. for $400, from which this appeal is taken.

Appellant's first assignment of error complains of the action of the court in overruling its plea in abatement and entertaining jurisdiction of this suit. Appellant's first proposition under said assignment is to the effect that all parties being nonresidents and the injuries complained of having occurred outside of the State of Texas, the courts of this State are not bound to entertain jurisdiction. The language of this proposition implies that the State courts may entertain jurisdiction of causes in which all parties are nonresidents when the injuries complained of occurred outside of the State, though they are not bound to do so. This being true, the court in this case having entertained jurisdiction, and thus determined the question of public policy in favor of entertaining jurisdiction, the appellant has no right to complain. We think it a correct proposition of law that liability in a transitory action may be enforced, and the right of action pursued in the courts of any State which can obtain jurisdiction of the defendant, without regard to where the wrongdoer or the person injured resided, or where the injury was inflicted; and it has been practically so held in the following cases: Railway Co. v. Keller, 76 S.W. Rep., 801; Railway Co. v. Smith, 79 S.W. Rep., 340; Railway Co. v. Graham, 34 S.W. Rep., 135; Railway Co. v. Worley, 25 S.W. Rep., 478. It does not appear from the pleadings or testimony in this case that the appellant was deprived of any valuable right by the court below entertaining jurisdiction of this case.

Appellant operates a line of railroad extending into Grayson County, Texas, and has a local agent representing it and residing in said county. The injuries for which damages are claimed occurred while appellees' cattle were being transported over appellant's road from a point in the Indian Territory to East St. Louis, Ill. The contracts under which the cattle were shipped stipulated that no suit should be brought after the lapse of ninety days from the date of the injuries upon which the action was based. It was agreed that in the Indian Territory where the contracts were made there was no statute rendering such stipulation invalid.

In our opinion the stipulation in contracts limiting the time within which suits shall be brought to ninety days, relates only to the remedy, and as to the remedy, the law of the forum governs. It was so held in Western Union Telegraph Company v. Lovely, 52 S.W. Rep., 563. This being true, the submission of said stipulation to the jury was favorable to the appellant.

Appellant's contention that in order to avoid the stipulation in the contract requiring suit to be brought within ninety days the evidence must show that such stipulation is unreasonable, is not sound. In our opinion, the authorities hold that in order for the stipulation to be valid and enforceable, it must be reasonable, and that the burden rests on the carrier to show by proper pleading and proof that the stipulation is reasonable. (Railway Co. v. Greathouse, 82 Tex. 104; Railway Co. v. Fagan, 72 Tex. 132; Railway Co. v. Harris, 67 Tex. 167 [67 Tex. 167].)

We are also of the opinion that there is evidence in the record tending to show that appellant had by its conduct waived the stipulation in the contracts of shipment requiring suit to be brought within ninety days.

All assignments of error are overruled.

We find no reversible error in the record; and the judgment of the court below is therefore affirmed.

Affirmed.

Writ of error refused.