Texas & New Orleans Railroad v. Palace Drug Co.

260 S.W. 1119, 1924 Tex. App. LEXIS 349

Opinion

HODGES, J.

This suit originated in the justice court and grew out of damages to some marble-slabs shipped to the appellee from Mil-, waukee, Wis. It is claimed that the slabs were broken either in transit or in being unloaded from the train. It appears from the evidence that the slabs were shipped from Milwaukee, and when they arrived at Athens, Tex., their destination, they were unloaded by a drayman, who testified that he handled them carefully. It appears that they were crated, and their actual condition could not be ascertained without removing the crating. The slabs were carried to the appellee’s drug store and stored in a room, where they remained until more than six months later. When uncrated it was discovered that they were broken in a manner which rendered them worthless. This suit is to recover $120, the value of the slabs, and $5.04 freight charges paid. In both the justice and county courts the plaintiff recovered the amount sued for. Among other defenses, the appellant pleaded that this was an interstate shipment, and that the property was transported under a bill of lading which required the shipper to give notice of any claim for damages within six months from the delivery of the freight as a condition precedent to the right to sue for compensation. It is undisputed that no claim for damages was filed within the six months after delivery of the goods. It has been held that such a stipulation in the bill of lading is legal and constitutes a good defense, unless the damage results from the negligence of the carrier in transporting or in loading or unloading the freight. The evidence in this case is not sufficient to show that the damage resulted from any negligence on the part of the carrier. There is no evidence that the slabs were damaged when unloaded, except the condition in which they were found more than six months later. There is nothing in the record to show what care had been taken of them during the time they were stored in appellee’s place of business. We regard the evidence as too unsatisfactory to sustain the judgment rendered. The cause will therefore be reversed and remanded for another trial.