Chicago, R. I. & G. Ry. Co. v. Whaley

HALL, J.

This is a stock shipping case. Two cars of the stock were shipped separately to Kansas City and one to Ft. Worth. The Chicago, Rock Island & Gulf Railway is the initial carrier, and the Ft. Worth & Denver City Railway is not made a party defendant.

Plea in abatement, alleging misjoinder of parties and causes of action, was urged in the lower court and overruled, and this is made the basis of the first assignment. The evidence showed that the initial carrier was not responsible for any of the damages to the Ft. Worth shipment, but that all the delay and injury occurred on the line of the Ft. Worth & Denver City Railway Company. Suit is brought against appellant upon the written contract of carriage for the first two shipments, and appellee sought to recover for the last shipment upon appellant’s common-law liability. The first, second, and third assignments have been abrogated by a remit-titur filed in this court of the full amount of damages recovered for the last shipment.

The fourth assignment insists upon a reversal because no written notice was given, as required by the contract, before the cattle were removed and mingled with other cattle at point of destination. This provision in the contract is the usual condition found in bills of lading precluding shippers from recovering damages for any loss or injury to or detention of stock or delay in transportation thereof unless the shipper should, as soon as he discovered said loss or injury, promptly give notice thereof in writing to some general officer, claim agent, or station agent of the receiving carrier, or to the agent at destination or to some general officer of the delivering line, before such stock is removed from the yards at destination, and before it is mingled with other stock, and further providing that such written notice should be served within one day after the delivery of the stock at destination, in order that such claims might be fully and fairly investigated.

Appellee having eliminated the intrastate question by a remittitur of the amount recovered upon the intrastate shipment, the question arises and must be determined by the rule announced by the federal courts. It is held in Clegg v. St. L. & S. F. Ry. Co., 203 Fed. 971, 122 C. C. A. 273, that a stipulation of this kind in a shipping contract for an interstate shipment is valid if made in consideration of a lower rate of freight. The rule, however, as announced in this state in so far as we have been able to learn, with reference to stipulations of this character, does not apply to damages occasioned by a depreciation in the market price due to the failure of the carrier to deliver the stock seasonably. Pecos & Northern Texas Ry. Co. v. Evans-Snyder-Buel Co., 100 Tex. 190, 97 S. W. 466; Sou. Kas. Ry. Co. v. Curtis, 44 Tex. Civ. App. 477, 99 S. W. 566. It is further held in this state that such a stipulation is unreasonable, invalid, and unenforceable if it does not state the name of an agent upon whom such notice may be served. Galveston, etc., Railroad Co. v. Short, 25 S. W. 142. See, also, 4 R. C. L., Carriers, §§ 454, 455, 457.

Appellant did not allege and prove that the shipments were made upon a reduced freight rate, nor did the contract set out the name of any agent or other party upon whom such notice might have been served. The decisions referred to above, by the courts of this. state, are not in conflict with the holding of the federal court in the construction of this clause of such contracts, and the fourth assignment is overruled.

[1] Appellants suggest fundamental error in that appellee sues for $1,000, with interest thereon. Reference to the petition shows that the aggregate sum of the various items, as set out in the body of the pleading, is $739.44. It is true that the ad damnum clause lays the damage at $1,000. The’ prayer is:

“Wherefore, plaintiff prays judgment against defendant for the sum of $1,000, with interest thereon, as provided by law, and all costs of suit.”

This prayer is almost identical with that discussed in the case of Pecos & Northern Texas Ry. Co. v. Rayzor (Sup.) 172 S. W. 1103, in which Judge Phillips has held that it did not claim an amount above the jurisdiction of the county court, since .it prayed for interest upon the judgment and not upon the amount of the damages.

Finding no reversible error, the judgment is affirmed.

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