St. Louis Southwestern Railway Co. v. Hays , 13 Tex. Civ. App. 577 ( 1896 )

Opinion. — 1. Suit by appellee for $1000 damages caused by the alleged negligence of appellant in transporting a jack from Fort Worth to Mt. Pleasant, Texas; trial by the court and judgment for appellee for $300.

2. The court properly overruled appellant's exception to appellee's petition based upon the proposition, that compliance with the stipulation in the contract of shipment requiring notice of his claim for damages to be given, was a condition precedent to his right to sue.

The contract was made March 30, 1893, and the animal delivered to appellee at its destination March 31, 1893. The contract required appellee to give notice of his claim for damages within one day after the property was delivered to him by appellant. The act of March 4, 1891 (art. 3379, Rev. Stat., 1895), declares that "any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void;" and it also places the burden of proof on that issue on the defendant. Besides, apart from the statute referred to, the burden of proof would be on appellant. Railway v. Greathouse,82 Tex. 105.

3. What has been said concerning the act of March 4, 1891, disposes of the third assignment of error. The stipulation requiring notice of appellee's claim for damages to be given in less than ninety days, was in the face of the statute, and void. Besides, the burden was on appellant to show appellee's non-compliance with the contract, and while it showed that no such notice was given to its agent at Mt. Pleasant, the place of destination, it did not show that notice was not given to its general officers, as authorized by the contract. Hence, if the contract was valid, it was not shown that appellee had breached it.

4. The evidence shows clearly that the animal was worth $600 when received by appellant, and appellee testified that when appellant delivered it to him at Mt. Pleasant it was worth less. He and other witnesses described the injuries that soon after developed, which were of a serious nature; and we cannot say that the court's finding that the jack was only worth $300 when appellant delivered it to appellee is not sustained by the testimony, eliminating as the court did, the evidence concerning loss of profits.

5. As the court below expressly states in its conclusions of law that no recovery was allowed for loss of profits, and as there was other evidence that sustains the judgment, we need not decide whether or not the court erred in overruling appellant's exceptions to that part of appellee's petition.

6. The finding of negligence on the part of appellant is supported by testimony; and no reversible error being shown, the judgment will be affirmed.

Affirmed.