KEY, Associate Justice.
Appellee sued the Houston and Texas Central and the Austin and Northwestern Railroad Companies to recover damages for injuries to twenty-five head of horses, two tons of hay, one saddle, one bridle, one blanket and one pair of spurs. He alleged in his petition that the defendants were partners; that he delivered the property to the Austin and Northwestern Railroad, at Marble Falls,Texas,for shipment to Willacootchie, Georgia; that while the same was on the line of the Houston and Texas Central Railroad, at or near Manor, Texas, the car containing said property caught on fire from sparks and cinders which appellant negligently permitted to escape from its engine, etc.
Both defendants denied under oath the partnership pleaded by the plaintiff, and, among other things, pleaded a written contract of shipment, and the Austin and Northwestern Railroad Company asked, in the event of a recovery against it, for judgment over against its co-defendant.
The court sustained exceptions to so much of appellant’s answer as set up several provisions of the written contract. The case was tried without a jury and judgment rendered for the plaintiff against both defendants for $1645, and protecting the Austin and Northwestern Railroad Company as asked in its pleadings. The Houston and Texas Central Railroad Company has appealed.
The court below filed no conclusions of fact and law, but the judgment rendered involves the following findings of fact, which find support in the evidence and are therefore adopted by this court:
1. Hnder the written contract attached to the answer of the Houston and Texas Central Railroad Company, the plaintiff shipped fifty head of horses and the other property described in his petition at Marble Falls, Texas, a station on the Austin and Northwestern Railroad. Said contract was made with the Austin and Northwestern Railroad Company, and the Houston and Texas Central Railroad Company was not shown to be a party thereto, as partner or otherwise.
2. At Austin, Texas, said property was delivered, in good condition, by the Austin and Northwestern Railroad Company to the Houston and Texas Central Railroad Company. Near Manor, Texas, while in the cus
tody of the latter company, and by sparks negligently permitted to escape from its engine, some hay (intended as feed for the horses) in one of the ears containing said shipment, was set on fire, and the plaintiff’s horses, etc., injured as alleged, to the extent of the amount recovered.
3. That the plaintiff and his employes were not shown to have been guilty of contributory negligence.
Opinion.
— 1. The seventh and ninth paragraphs of the contract under which the property was shipped read as follows:
“Seventh. And the party of the second part further agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said stock, he, or his agent, the person in charge of said stock, shall give notice in writing of his claim therefor, and the full amount of such loss or damage, to the station agent of the party of the first part at the station hereinbefore named as the end of the line of the party of the first part, before said stock is removed from the station, and before said stock is mingled with other stock, or delivered to any connecting line or railroad.”
“Ninth. It is further expressly agreed by the party of the second part that the other railway lines over which said stock are way-hilled in order to reach the destination, having participated in mailing said through rate of freight, of which the party of the second part has the benefit hereunder, when they receive said stockfor transportation under this contract, shall, like the party of the first part, not he responsible for injuries or loss occurring beyond their respective lines of road, and shall he entitled to same notice of loss or damage occurring upon their respective lines as herein provided for party of the first part, to he given to the agent of each railway company at the station ending the run of said stock over such road.” .
Appellant pleaded that it had a station agent at Manor named T. H. Barrow, and one at Houston named J. T. Bell, at the time of the accident in question; that Houston was the terminus of its road; that the plaintiff failed to give written notice of the damages to his property to either of said agents, or to any other person representing appellant; and it is urged that under these circumstances the provisions of the contract as above set out are binding on appellee, and defeat Ms claim for damages.
If the contract in question is not a contract for an inter-state shipment, it is subject to, and controlled by, the second section of chapter 17 of the acts of the Twenty-second Legislature (Gen. Laws, p. 20), which declares void any stipulation in a contract which requires such notice as is now under consideration to he given “at a less period than ninety days.” The same section provides that when such notice is required it shall he presumed that it has been given, unless the want of notice is pleaded under oath.
Construing this statute, this court held, in Texas Telegraph and Telephone Co. v. Seiders, 29 S. W. Rep., 258, that, in the absence of a sworn plea of failure to give notice, it must be conclusively presumed that notice
was given; and, as the Supreme Court refused to grant a writ of error in that ease, we presume that court endorses that construction of the statute. Appellant’s plea of failure to give notice was not verified, as required by the statute. Besides, if the statute referred to applies to this contract, the contract is void, because it requires the notice to be given “before the stock is removed from the station,” 'etc., whereas, under the statute, a contract, to be valid, must not require notice to be given in less than ninety days.
Tested by the rule announced in Railway v. Sherwood, 84 Texas, 125, we doubt if tins should be held to be a contract for inter-state shipment. It not only limits the liability of the company making the contract, and those carrying the freight thereunder, to their own lines, but the obligation to carry is “from the station where this contract is executed to Houston, Texas,” and it expressly stipulates, in the eighth paragraph, that the “party of the first part is only to transport said stock to the aforesaid station named at the end of its line on the route over which said stock is to be shipped.” It is true that the contract states that the freight is way-billed through and consigned to C. L. Patton, at Willacooteliie, 6a., and there is a statement in the eighth paragraph that the company malting the contract will protect the through rate of freight “named herein.” But it expressly states that the shipment is to be transported, in part, by other carriers, and in no place does it designate or fix a through rate of freight; and appellant did not allege or prove that such rate of freight was agreed upon. In the Sherwood case, it is said in the opinion: “The bill introduced in evidence purports on its face to be a foreign bill of lading.
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KEY, Associate Justice.
Appellee sued the Houston and Texas Central and the Austin and Northwestern Railroad Companies to recover damages for injuries to twenty-five head of horses, two tons of hay, one saddle, one bridle, one blanket and one pair of spurs. He alleged in his petition that the defendants were partners; that he delivered the property to the Austin and Northwestern Railroad, at Marble Falls,Texas,for shipment to Willacootchie, Georgia; that while the same was on the line of the Houston and Texas Central Railroad, at or near Manor, Texas, the car containing said property caught on fire from sparks and cinders which appellant negligently permitted to escape from its engine, etc.
Both defendants denied under oath the partnership pleaded by the plaintiff, and, among other things, pleaded a written contract of shipment, and the Austin and Northwestern Railroad Company asked, in the event of a recovery against it, for judgment over against its co-defendant.
The court sustained exceptions to so much of appellant’s answer as set up several provisions of the written contract. The case was tried without a jury and judgment rendered for the plaintiff against both defendants for $1645, and protecting the Austin and Northwestern Railroad Company as asked in its pleadings. The Houston and Texas Central Railroad Company has appealed.
The court below filed no conclusions of fact and law, but the judgment rendered involves the following findings of fact, which find support in the evidence and are therefore adopted by this court:
1. Hnder the written contract attached to the answer of the Houston and Texas Central Railroad Company, the plaintiff shipped fifty head of horses and the other property described in his petition at Marble Falls, Texas, a station on the Austin and Northwestern Railroad. Said contract was made with the Austin and Northwestern Railroad Company, and the Houston and Texas Central Railroad Company was not shown to be a party thereto, as partner or otherwise.
2. At Austin, Texas, said property was delivered, in good condition, by the Austin and Northwestern Railroad Company to the Houston and Texas Central Railroad Company. Near Manor, Texas, while in the cus
tody of the latter company, and by sparks negligently permitted to escape from its engine, some hay (intended as feed for the horses) in one of the ears containing said shipment, was set on fire, and the plaintiff’s horses, etc., injured as alleged, to the extent of the amount recovered.
3. That the plaintiff and his employes were not shown to have been guilty of contributory negligence.
Opinion.
— 1. The seventh and ninth paragraphs of the contract under which the property was shipped read as follows:
“Seventh. And the party of the second part further agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said stock, he, or his agent, the person in charge of said stock, shall give notice in writing of his claim therefor, and the full amount of such loss or damage, to the station agent of the party of the first part at the station hereinbefore named as the end of the line of the party of the first part, before said stock is removed from the station, and before said stock is mingled with other stock, or delivered to any connecting line or railroad.”
“Ninth. It is further expressly agreed by the party of the second part that the other railway lines over which said stock are way-hilled in order to reach the destination, having participated in mailing said through rate of freight, of which the party of the second part has the benefit hereunder, when they receive said stockfor transportation under this contract, shall, like the party of the first part, not he responsible for injuries or loss occurring beyond their respective lines of road, and shall he entitled to same notice of loss or damage occurring upon their respective lines as herein provided for party of the first part, to he given to the agent of each railway company at the station ending the run of said stock over such road.” .
Appellant pleaded that it had a station agent at Manor named T. H. Barrow, and one at Houston named J. T. Bell, at the time of the accident in question; that Houston was the terminus of its road; that the plaintiff failed to give written notice of the damages to his property to either of said agents, or to any other person representing appellant; and it is urged that under these circumstances the provisions of the contract as above set out are binding on appellee, and defeat Ms claim for damages.
If the contract in question is not a contract for an inter-state shipment, it is subject to, and controlled by, the second section of chapter 17 of the acts of the Twenty-second Legislature (Gen. Laws, p. 20), which declares void any stipulation in a contract which requires such notice as is now under consideration to he given “at a less period than ninety days.” The same section provides that when such notice is required it shall he presumed that it has been given, unless the want of notice is pleaded under oath.
Construing this statute, this court held, in Texas Telegraph and Telephone Co. v. Seiders, 29 S. W. Rep., 258, that, in the absence of a sworn plea of failure to give notice, it must be conclusively presumed that notice
was given; and, as the Supreme Court refused to grant a writ of error in that ease, we presume that court endorses that construction of the statute. Appellant’s plea of failure to give notice was not verified, as required by the statute. Besides, if the statute referred to applies to this contract, the contract is void, because it requires the notice to be given “before the stock is removed from the station,” 'etc., whereas, under the statute, a contract, to be valid, must not require notice to be given in less than ninety days.
Tested by the rule announced in Railway v. Sherwood, 84 Texas, 125, we doubt if tins should be held to be a contract for inter-state shipment. It not only limits the liability of the company making the contract, and those carrying the freight thereunder, to their own lines, but the obligation to carry is “from the station where this contract is executed to Houston, Texas,” and it expressly stipulates, in the eighth paragraph, that the “party of the first part is only to transport said stock to the aforesaid station named at the end of its line on the route over which said stock is to be shipped.” It is true that the contract states that the freight is way-billed through and consigned to C. L. Patton, at Willacooteliie, 6a., and there is a statement in the eighth paragraph that the company malting the contract will protect the through rate of freight “named herein.” But it expressly states that the shipment is to be transported, in part, by other carriers, and in no place does it designate or fix a through rate of freight; and appellant did not allege or prove that such rate of freight was agreed upon. In the Sherwood case, it is said in the opinion: “The bill introduced in evidence purports on its face to be a foreign bill of lading. It provides for the transportation by the Missouri Pacific Railway Company of the cotton at the rate of 136 cents per hundred pounds from Greenville, Texas, to Liverpool, England.” And again it is said in the opinion: “Does the provision limiting the liability of the company to its own line terminating at Galveston so affect the character of the instrument as to make of it a domestic, bill of lading? We think not. The instrument on its face purports to be a through bill of lading. It constitutes, as we view it, an undertaking on the part of the carrier defendant to transport and have transported from Greenville, Texas, to Liverpool, England, the cotton in question. It provides for a rate of freight between these points of 136 cents per hundred pounds. It contemplates a continuous transportation from Green-ville, Texas, to Liverpool, England. These are all features of a through contract of shipment.”
But if it be conceded that the instrument in question is a foreign bill of lading, evidencing a contract for an inter-state shipment, and therefore not subject to the statute referred to, still the stipulation requiring written notice, as a condition precedent to a right to sue and recover damages, to be valid, must be reasonable; and the burden was upon appellant to allege and prove the facts and circumstances showing that the stipulation was reasonable. Railway v. Harris, 67 Texas, 167; Railway v. Fagan, 72 Texas, 132; Railway v. Greathouse, 82 Texas,
104. Appellant attempted to do this hy alleging that it had station agents, giving their names, at Manor, where the accident occurred, and at Houston, the terminus of its road, and that the plaintiff knew that it had such agents. These allegations were insufficient. The contract required the plaintiff not only to give written notice of his claim for damages, hut to state therein “the full amount of such loss or damage.” The bulk of the property injured was horses. They were injured by fire; none were killed; and, in the very nature of things, it is not probable that the full amount of the “loss or damage” was ascertainable when they reached Houston, and it would be unreasonable to say that the plaintiff should have held them at that station until' the full extent of the injury was developed. We therefore hold that the contract bore on its face prima facie evidence, at least, of its unreasonableness, and that nothing short of an affirmative showing by appellant that the full extent of the injury had been developed in time for appellee to have given notice thereof within the time required by the contract would relieve it from this objection. On this subject appellant’s answer was silent, and therefore the court properly sustained appellee’s exceptions to so much of it as pleaded appellee’s failure to give notice of his claim. As a fact, the evidence tends to show that the full extent of the injury to the animals was not disclosed until after they left appellant’s road.
Delivered June 8, 1895.
Speaking for himself alone, the writer of this opinion concurs in the doubt expressed by Judge Stayton in Railway v. Harris, 67 Texas, 166, as to the validity of stipulations for notice in contracts by carriers, unless the name of the person to whom the notice is to be given is stated in the contract.
2. Appellant not having been deceived as to the character and value of the property it received for shipment, and the injury having resulted from its negligence, the stipulation in the contract fixing the value of the animals at Marble Falls, the place of shipment, as a basis for the measure of damages, was illegal and not binding upon appellee; and the court did not err in allowing proof of value at the point of destination. Railway v. Maddox, 75 Texas, 300; Railway v. Ball, 80 Texas, 603.
3. The same principle applies as to the stipulation for non-liability in case of injury by fire. A common carrier can not contract so as to relieve itself from liability for its own negligence; and, the fire in question having resulted from its negligence, appellant is not protected by the stipulation referred to.
Appellant has pointed out no reversible error, and the judgment will be affirmed.
Affirmed.
Writ of error refused.