The appellee Dalton brought suit against the Chicago, Rock Island
Gulf Railway Company and the Chicago, Rock Island Pacific Railway Company, to recover damages for alleged injuries to a shipment of cattle, consisting of 188 head shipped from Romero, Tex., to Kansas City, Mo., and for 46 head shipped from Stratford, Tex., to Kansas City, Mo.
The allegations of the petition allege that the shipment was upon a written contract of affreightment. The allegations of negligence consisted of delays, rough handling, and consequent damages. The appellants answered, setting up certain stipulations of the contract, denying liability, etc., among which the following stipulation was alleged:
"That as a condition precedent to claiming or recovering damages for any loss or injury to or detention of live stock or delay in transportation thereof, covered by this contract, the second party, as soon as he discovers such loss or injury, shall promptly give notice thereof in writing to some general officer, claim agent or station agent of the first party, or to the agent at destination, or to some general officer of the delivering line before such stock is removed from the point of shipment, or from the place of destination, as the case may be, and before such stock is mingled with other stock, and such written notice shall in any event be served in one day after the delivery of the stock at its destination, in order that such claim may be fully and fairly investigated. It is agreed that a failure to strictly comply with all of the foregoing provisions shall be a bar to the recovery of any and all such claims."
There is no allegation in the answer, setting up that this stipulation was reasonable, or that appellants had a general officer, claim or station agent at the place of destination so that written notice could have been given such agent or officer. The facts in this case
will be considered sufficient to support the judgment of the court in finding negligence in the particulars alleged in the petition, and that by reason thereof the cattle were injured, and that the appellee suffered damages to the amount found by the court, $686.84.
The appellants introduced written contracts or receipts to the appellee, executed by the Chicago, Rock Island Gulf Railway Company at Romero, Tex., which contract contained the provision above set out in their answer, and introduced no further testimony with reference to officers or agent being at the point of destination.
There was no notice in writing given by the appellee, or at least none proven. Appellee testified:
"I did not myself notify defendants or their agents at destination of my claims within one day of the arrival of the stock at destination. I instructed the commission company to do so, but do not know whether or not they did."
The appellants present two assignments of error, the second of which will be overruled without further discussion.
The first assignment is to the effect that the court erred in rendering judgment for the appellee, he having brought suit on a written contract with the stipulation above named, and did not prove that he had given the notice as required by such provision or any excuse therefor. This being an interstate shipment, we recognize, since Congress has taken charge of interstate shipments, the decisions of the federal courts should control, and, when the courts of that jurisdiction announce the rule governing the case, it is our duty to follow it; but, where the rule is not established by the supreme tribunal, we must follow that rule which in our judgment comports with reason and justice, and we must confess a decided preference for the holdings of our own Supreme Court, than whom no more enlightened jurists have graced courts in other jurisdictions. We regard the following questions as being suggested by the record:
Are the pleadings and evidence of the clause sufficient alone to show its reasonableness, or must the pleadings and evidence show, aliunde of the clause as applied to the particular shipment, that it is a reasonable stipulation? There is but little doubt, if any, that the Supreme Court of Texas holds that the burden rests upon the carrier to allege facts and to prove that the clause as applied to the particular shipment is a reasonable one. If this is not shown by the carrier, then there is no duty upon the shipper to prove the notice was given or prove an excuse for not doing so. It may be conceded, we presume, that the mere fact that the time is short will not render the clause invalid, and that the carrier may rightfully stipulate that it shall have the right to examine the cattle before they are removed, and that the Supreme Court of the United States would doubtless so hold, and that the decisions of that court tend in that direction. We do not understand that the Texas courts have held to the contrary; but, as we understand our courts, the stipulation is held reasonable or not under the facts and circumstances of each shipment, and the facts and circumstances rendering it reasonable must be alleged and proven by the carrier. Judge Stayton, in Railway Co. v. Harris, 67 Tex. 166, 2 S.W. 575, did express a doubt as to the validity of such a stipulation, but did not in terms hold it invalid; but held:
"The answer must present a defense to the case made by the petition. If the answer does not show that, under the facts existing, the limitation on the carrier's liability sought to be imposed by the special contracts was reasonable in its character, then the answer was not sufficient, and the court below properly sustained the demurrer. If a carrier sets up a claim to notice of a given fact as a consideration upon which its liability to a shipper is to depend, then it is incumbent upon it, when the notice was to be given to one of its own officers or agents, to show that it had an officer or agent at or near the place where the notice is to be given, in any case in which the shipper by the terms of the contract, through which notice is claimed, it to hold the property shipped, at the place of delivery, * * * until it can be inspected by some agent of the carrier. This would be especially true when the property to be inspected is intended for immediate sale at the place of destination, is perishable in character, likely to deteriorate in value by holding, and expensive to keep. If in such a case the carrier has not an officer or agent at or near the place where the property to be inspected is delivered, so that notice may be properly given, and an inspection, if desired, speedily made, then a contract requiring notice to be given to an officer or agent of the carrier is not reasonable in its character. The contract to give notice was not the entire contract. The notice was required to be given to an officer, or the nearest station agent of the carrier; and the station of such officer or agent with reference to the place from which the notice must necessarily come, and at which an inspection, if desired, would necessarily have to be made, would largely determine whether the contract was reasonable or not. The answer should have shown that the carrier had an officer or agent so situated that the contract to give notice to such officer or agent was reasonable. Under the averments of the petition, the place of delivery was beyond the line of the appellant's railway, in another state, and no presumption can arise that the carrier had an officer or station agent near the place of destination. If the contract were one valid, whether reasonable or not, the shipper would be bound by its terms; but, when its validity depends upon its being reasonable, the party who asserts its validity must allege the facts which make it so.
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The appellee Dalton brought suit against the Chicago, Rock Island
Gulf Railway Company and the Chicago, Rock Island Pacific Railway Company, to recover damages for alleged injuries to a shipment of cattle, consisting of 188 head shipped from Romero, Tex., to Kansas City, Mo., and for 46 head shipped from Stratford, Tex., to Kansas City, Mo.
The allegations of the petition allege that the shipment was upon a written contract of affreightment. The allegations of negligence consisted of delays, rough handling, and consequent damages. The appellants answered, setting up certain stipulations of the contract, denying liability, etc., among which the following stipulation was alleged:
"That as a condition precedent to claiming or recovering damages for any loss or injury to or detention of live stock or delay in transportation thereof, covered by this contract, the second party, as soon as he discovers such loss or injury, shall promptly give notice thereof in writing to some general officer, claim agent or station agent of the first party, or to the agent at destination, or to some general officer of the delivering line before such stock is removed from the point of shipment, or from the place of destination, as the case may be, and before such stock is mingled with other stock, and such written notice shall in any event be served in one day after the delivery of the stock at its destination, in order that such claim may be fully and fairly investigated. It is agreed that a failure to strictly comply with all of the foregoing provisions shall be a bar to the recovery of any and all such claims."
There is no allegation in the answer, setting up that this stipulation was reasonable, or that appellants had a general officer, claim or station agent at the place of destination so that written notice could have been given such agent or officer. The facts in this case
will be considered sufficient to support the judgment of the court in finding negligence in the particulars alleged in the petition, and that by reason thereof the cattle were injured, and that the appellee suffered damages to the amount found by the court, $686.84.
The appellants introduced written contracts or receipts to the appellee, executed by the Chicago, Rock Island Gulf Railway Company at Romero, Tex., which contract contained the provision above set out in their answer, and introduced no further testimony with reference to officers or agent being at the point of destination.
There was no notice in writing given by the appellee, or at least none proven. Appellee testified:
"I did not myself notify defendants or their agents at destination of my claims within one day of the arrival of the stock at destination. I instructed the commission company to do so, but do not know whether or not they did."
The appellants present two assignments of error, the second of which will be overruled without further discussion.
The first assignment is to the effect that the court erred in rendering judgment for the appellee, he having brought suit on a written contract with the stipulation above named, and did not prove that he had given the notice as required by such provision or any excuse therefor. This being an interstate shipment, we recognize, since Congress has taken charge of interstate shipments, the decisions of the federal courts should control, and, when the courts of that jurisdiction announce the rule governing the case, it is our duty to follow it; but, where the rule is not established by the supreme tribunal, we must follow that rule which in our judgment comports with reason and justice, and we must confess a decided preference for the holdings of our own Supreme Court, than whom no more enlightened jurists have graced courts in other jurisdictions. We regard the following questions as being suggested by the record:
Are the pleadings and evidence of the clause sufficient alone to show its reasonableness, or must the pleadings and evidence show, aliunde of the clause as applied to the particular shipment, that it is a reasonable stipulation? There is but little doubt, if any, that the Supreme Court of Texas holds that the burden rests upon the carrier to allege facts and to prove that the clause as applied to the particular shipment is a reasonable one. If this is not shown by the carrier, then there is no duty upon the shipper to prove the notice was given or prove an excuse for not doing so. It may be conceded, we presume, that the mere fact that the time is short will not render the clause invalid, and that the carrier may rightfully stipulate that it shall have the right to examine the cattle before they are removed, and that the Supreme Court of the United States would doubtless so hold, and that the decisions of that court tend in that direction. We do not understand that the Texas courts have held to the contrary; but, as we understand our courts, the stipulation is held reasonable or not under the facts and circumstances of each shipment, and the facts and circumstances rendering it reasonable must be alleged and proven by the carrier. Judge Stayton, in Railway Co. v. Harris, 67 Tex. 166, 2 S.W. 575, did express a doubt as to the validity of such a stipulation, but did not in terms hold it invalid; but held:
"The answer must present a defense to the case made by the petition. If the answer does not show that, under the facts existing, the limitation on the carrier's liability sought to be imposed by the special contracts was reasonable in its character, then the answer was not sufficient, and the court below properly sustained the demurrer. If a carrier sets up a claim to notice of a given fact as a consideration upon which its liability to a shipper is to depend, then it is incumbent upon it, when the notice was to be given to one of its own officers or agents, to show that it had an officer or agent at or near the place where the notice is to be given, in any case in which the shipper by the terms of the contract, through which notice is claimed, it to hold the property shipped, at the place of delivery, * * * until it can be inspected by some agent of the carrier. This would be especially true when the property to be inspected is intended for immediate sale at the place of destination, is perishable in character, likely to deteriorate in value by holding, and expensive to keep. If in such a case the carrier has not an officer or agent at or near the place where the property to be inspected is delivered, so that notice may be properly given, and an inspection, if desired, speedily made, then a contract requiring notice to be given to an officer or agent of the carrier is not reasonable in its character. The contract to give notice was not the entire contract. The notice was required to be given to an officer, or the nearest station agent of the carrier; and the station of such officer or agent with reference to the place from which the notice must necessarily come, and at which an inspection, if desired, would necessarily have to be made, would largely determine whether the contract was reasonable or not. The answer should have shown that the carrier had an officer or agent so situated that the contract to give notice to such officer or agent was reasonable. Under the averments of the petition, the place of delivery was beyond the line of the appellant's railway, in another state, and no presumption can arise that the carrier had an officer or station agent near the place of destination. If the contract were one valid, whether reasonable or not, the shipper would be bound by its terms; but, when its validity depends upon its being reasonable, the party who asserts its validity must allege the facts which make it so. It may well be doubted if such a contract as relied on in this case ought ever to be sustained. If a carrier seeks to make its liability to depend on notice to its officer or agent of a claim for damages, it would seem that the responsibility of determining who is an officer or agent of a carrier, within the meaning of the contract, should not be cast upon the shipper; but that the person, and his locality, to whom the notice must be given, ought to be made certain by the contract itself, and especially so when the carrier is a corporation, and the property is to be delivered beyond the line of its road, through another carrier. We are of the opinion that there was no error in sustaining the demurrers to the answers setting up the defenses we have noticed."
The locality of the agent or officer of the carrier is peculiarly within its knowledge,
and we think simple justice should require it to allege and prove such fact, and that the facts when so alleged should be sufficient to show that the stipulation requiring notice could have been reasonably complied with by the shipper, and, until such allegation and proof is made, there is no lawful stipulation shown requiring the shipper to prove notice or an excuse for not giving it. The court or jury should not be left to presume that the agent was at a place accessible, such as would render the requirement of notice to him reasonable; but the facts should be alleged and proven. The rule is announced by the Commission of Appeals, and approved by the Supreme Court of Texas, in the case of Railway Co. v. Greathouse, 82 Tex. 104, 17 S.W. 834:
"To prove that such conditions in a contract are reasonable is a burden resting upon the carrier, who must show, by proper pleadings and evidence, the existence of facts that call for an enforcement of the condition. There were no pleadings and proof whatever * * * coming from the carrier." Railway v. Fagan, 72 Tex. 127, 9 S.W. 751, 2 L.R.A. 75, 13 Am.St.Rep. 776; Railway v. Paine, 1 Tex. Civ. App. 621, 21 S.W. 78; Railway v. Childers, 1 Tex. Civ. App. 302, 21 S.W. 76.
"Where a carrier relies on a special contract limiting its liability, the burden is on it, not only to show a valid special contract but also to allege and prove the facts and circumstances showing the stipulation to be reasonable." 4 Ruling Case Law, "Carriers," §§ 377, 378, 253; 6 Cyc. 506, 507(b); 4 Elliott on Railroads (2d Ed.) §§ 1512, 1714; Hutchinson on Carriers, §§ 442-447.
We take it the rule is established in this state that the burden is on the carrier to allege and prove the stipulation is a reasonable one under the circumstances of the particular shipment, and, where the facts raise the issue of reasonableness, it is a question for the jury or court trying the same. 4 R.C.L. § 253; Railway Co. v. Davis, 88 Tex. 593,32 S.W. 510; Railway Co. v. Stanley, 89 Tex. 42, 33 S.W. 109; Railway Co. v. Evans, 100 Tex. 190, 97 S.W. 466. Where a contract is shown to be reasonable, it may be the rule under the weight of the federal authorities that the burden is then on the shipper to show that he has complied with the stipulation by giving notice, or to prove an excuse for not doing so. In so far as we are informed, the Supreme Court of the United States has not passed upon the direct question presented in this record. It has been stated in general terms by that court that a carrier may provide limitations or qualifications if they are just and reasonable and do not exempt it from responsibility due to negligence. The Supreme Court of the United States did not hesitate to declare a provision of a ticket fixing the value of baggage at an arbitrary value illegal, because such provision by its terms, and construed in connection with an act of Congress known as the Harter Act, was unjust and unreasonable and for that reason void. The Kensington, 183 U.S. 263, 22 Sup.Ct. 102, 46 L.Ed. 190. True, the conclusion so reached was from a construction given upon the stipulation without aliunde facts, except the act of Congress. In the case of The Queen of the Pacific, 180 U.S. 49, 21 Sup.Ct. 278, 45 L.Ed. 419, it was held that a stipulation for notice of any claim of loss within 30 days from date of shipment was not unreasonable as applied to a loss which was known to the consignor more than three weeks before the expiration of the stipulated time, since the enforcement of the stipulation would not work a manifest injustice. In discussing the question, Railway v. Harris, 67 Tex. 166, 2 S.W. 574, and Pacific Express Co. v. Darnell (Sup.) 6 S.W. 765, are cited, and, while not approved in terms, the court says the Harris Case was evidently decided upon its special facts. The facts set out in the opinion are substantially the facts in this case. That court, in The Queen of Pacific Case, supra, said:
"It is unnecessary to say that if, under the circumstances of a particular case, the stipulation were unreasonable, or worked a manifest injustice to the libelants, we should not give it effect."
In the Westminster Case, 127 F. 682, 62 C.C.A. 406, it is said:
"It (the stipulation) must be taken * * * as it stands, and held reasonable as a whole, which the attending circumstances must determine."
That court then held that the giving of the notice was an affirmative fact which must be proven by the libelant (plaintiff). That rule does not in our judgment in the least militate against the rule that the carrier must allege and prove, in the first place, that the stipulation, with the attending circumstances, must determine that it is reasonable. These cases to our mind indicate the rule is the same in the federal courts as in the Texas court. The carrier must show a reasonable stipulation. If the carrier had no agent at destination, we can think of no more unjust or unreasonable requirement than a stipulation requiring the shipper to give such agent notice of loss within one day, when there was no such agent. The contract in this case does not show whether there was or was not such an agent. This fact resting in the knowledge of the carrier, its failure to allege and prove that there was convenient such agent, we think the presumption should prevail there was none. This, as we understand, is the Texas rule, and, until the Supreme Court of the United States holds to the contrary, we believe we should follow the rule in this state, rather than the holdings of any other state, and specially do we do so for the reason that the rule to our mind is a just and a reasonable one and is supported by respectable authority, both court and text-writers. We cite the following federal authorities as in some measure supporting the Texas rule: Ormsby v. Union Pacific, 4 F. 170; Pac. S. S. Co. v. Bancroft, 94 F. 180, 36 C.C.A. 135; Kahnweiler v. Insurance Co., 67 F. 483,
14 C.C.A. 485. The case of Kidwell v. Oregon Short Line, 208 F. 1, 125 C.C.A. 313, recognized that the stipulation might become unreasonable under certain circumstances surrounding the shipment. It is there said:
"There was nothing in the circumstances, as disclosed by the record in the case at bar, to render the requirement of the notice negligible or impracticable, as in the case of C., R. I. P. Ry. Co. v. Spears,31 Okla. 469 [122 P. 228]."
While that court cited cases from other jurisdictions, its decision is based on the holding of the Supreme Court of Oregon, the state of origin of the action.
In Hatch et al. v. M., St. P. S. S. M. Ry. Co., 15 N.D. 490,107 N.W. 1087, Morgan, C.J., clearly states the rule which should control in the matter of pleading in cases of this character:
"The condition or stipulation referred to is not strictly a condition precedent, and it is not part of the cause of action. The cause of action is complete before this condition becomes operative. The cause of action is not created by the contract of the parties. The law controls what facts shall constitute the cause of action. If the law should provide for the notice in the same statute, defining what the cause of action should be, a different question would be presented. But the condition in this case is made by the contract of the parties, and the cause of action is defined by the common law. Hence the condition cannot operate as a part of the cause of action. It was therefore an unnecessary allegation of the complaint. A cause of action was completely stated without it. The condition was a limitation upon the right of the plaintiff to maintain the action and pertained to the remedy. It was therefore a matter of defense to be raised by answer, if at all. This court has recently so held in a case involving a similar condition. Kinney v. Brotherhood, etc., 15 N.D. 21, 106 N.W. 44."
See Maloy v. C. N.W. Ry., 109 Wis. 29, 85 N.W. 130; Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003, 49 L.R.A. 475, 80 Am.St.Rep. 1; Meisenheimer v. Kellog, 106 Wis. 30, 81 N.W. 1033; Westcott v. Fargo,61 N.Y. 542, 19 Am.Rep. 300; McNealy v. C., B. Q. Ry., 119 Mo. App. 200,95 S.W. 312; L. N. Ry. v. Woodford, 152 Ky. 398, 153 S.W. 722,153 Ky. 185, 154 S.W. 1083; A., T. S. F. Ry. v. Baldwin, 53 Colo. 416,128 P. 449; St. L., etc., v. Cumbie, 101 Ark. 172, 141 S.W. 939; Mo. Pac. Ry. v. Fagan, 72 Tex. 127, 9 S.W. 749, 2 L.R.A. 75, 13 Am.St.Rep. 776; Mo. Pac. Ry. v. Harris, 67 Tex. 166, 2 S.W. 574.
We think the fact that the cattle were shipped for market, and that the damages were known to the shipper, will not dispense with the proof that there was an agent sufficiently near to have presented the claim within the time specified; neither do we believe that the declaration of the appellee to the commission company to put in the claim with the agent conclusive or proof that there was such an agent. It may be that it is evidenced that the claim could have been presented for the damages within the time specified, but it is not proof that there was any such agent; but, as suggested, the presumption should prevail there was none or the appellants would have proven it. The case was tried before the court without a jury, and we must impute to him the finding that the stipulation, under the circumstances of this shipment, was unreasonable, and no notice thereunder was required.
So finding, the case will be affirmed.