author: TALBOT, J.

text:
    SOUTHERN TRACTION CO. v. HULBERT et al.
    (No. 7338.)

    (Court of Civil Appeals of Texas. Dallas.
    May 15, 1915.
    Rehearing Denied June 19, 1915.)
    1. Death <@=99 — Damages—Amount—Sufei-ciency of Evidence.
    On appeal from a judgment for $12,000 in an action by a wife for death of her husband in a collision' between two street railroad cars, evidence held sufficient to sustain the amount of the verdict.
    • [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. <®=99J
    2. Death) <@=95 — Damages—Wages as Measure.
    In an action for death by wrongful act, while the law gives compensation only for pecuniary loss by estimating the money value of the life of the relative, nevertheless the pecuniary value of a parent and husband to his wife and children is beyond the amount of his wages in employment, and so is not strictly measured thereby.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. <@= 95.]
    3. Appeal and Error <§=1001 — Review — Verdict.
    The appellate court cannot disturb a verdict which is supported by substantial evidence. Reversal may be had only when the evidence preponderates against the verdict so that it may be said to be clearly wrong, and to show that the jury was actuated by partiality, passion, or prejudice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. <§=1001.]
    4. Death <§=67' — Damages—Evidence—Market Value of Deceased’s Services — “Value” — “Market Value” — “Actual Value.”
    Where a wife sued a street railroad for the wrongful death of her _ husband, who had been engaged in managing his father’s country newspaper since the latter’s retirement, evidence that the reasonable market value of the services of such a manager as the deceased for running such ■a paper was from $150 to $200 a month was admissible on the point of damage; such testimony proving the “actual value” of deceased’s services, since “actual value,” “value,” and “market value” are interchangeable terms.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 88; Dec. Dig. <@=07.
    For other definitions; see Words and Phrases, First and Second Series, Actual Value; Market Value; Value.]
    5. Evidence <@=543 — Expert Opinion — Qualification of Witness — Earning Capacity of Deceased.
    In an action for wrongful death of plaintiff’s husband, manager of a small country newspaper, a witness who was engaged in the newspaper business in the same county, who had been familiar with deceased’s newspaper for 15 years, and the character of deceased’s management since he had been in charge, was qualified as an expert to testify to the reasonable value to the paper of deceased’s managerial services.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356%-2358; Dec. Dig. <@=543.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Lenice Curry Hulbert and others against the Southern Traction Company.

      Judgment for the named plaintiff, and defendant appeals. Affirmed.
    Templeton, Beall & Williams, of Dallas, for appellant. Carden, Starling, Carden, Hemp-hill & Wallace, of Dallas, for appellees.

       Writ of error pending in Supreme Court.

   TALBOT, J.

This suit was brought by-Mrs. Lenice Curry Hulbert, as the surviving widow, and E. M. Hulbert and Mrs. May Hulbert, as the surviving parents, of Walter Hulbert, against the appellant, to recover-damages on account of the death of the said Walter Hulbert, which occurred October 14, 1913, as the result of a collision between an interurban car of appellant, upon which the said Walter Hulbert was a passenger, and another car, which was negligently permitted to be on appellant’s main line of road. The deceased and his wife were married in 1904. They had no children. The defendant admitted liability; and a trial of the case May 22, 1914, resulted in a verdict in favor of Mrs. Lenice Curry Hulbert for the sum of $12,000 and nothing for the parents. Appellant’s motion for a new trial having been overruled, it perfected an appeal to this court, and presents two assignments of error for a reversal.

The first assignment, which is submitted as a proposition, is, in substance, that the verdict of the jury is excessive because the evidence shows that the fair compensation to which Mrs. Lenice Curry Hulbert is entitled is much less than that awarded. We think the assignment of error must be overruled. The deceased, Walter Hulbert, was 30 years of age at the time of his death. He was the business manager of the Lancaster Herald, a newspaper owned by his father, E. M. Hulbert, and had been for about ten years. He was not paid a regular salary for his services, but drew from the revenues arising from the publication of the Lancaster Herald, with exception of some small amount received from a real estate business he was interested in, the amount necessary to support himself and wife, which the latter says was about $125 to $150 per month, and that for her personal use her husband contributed between $60 and $75 a month. Mrs. Hulbert further testified:

“My husband suffered on occasions from asthma. He would have three or four spells of asthma during a year. He may have been subject to them slightly at the time we were married, but I was not with him all the time to see. I heard that he had them. The spells seemed to be about the same with reference to being frequent, or closer together or less frequent, from the time we were married on down to his death. Of course, some attacks were more severe than others. With reference to the last five or six years of his life, there was not a bit of difference that I could see. Those attacks would last maybe from four to ten days, or three to ten days. We had a doctor to treat him, usually — Dr. Lyon, the doctor in Lancaster — just relieve him at the time he had a spell. Dr. Millikan treated him occasionally. Ray, my husband might be sick to-night, and well in the morning, and he would get up and go to work, and whenever he was so that he could work, or, if there was any duty at the office, it wouldn’t make any difference how sick he was, he went. My husband was a very active man. Anything he went into he went into it with his whole soul. He liked athletics very much. There wasn’t anything he didn’t like in the way of athletics. He played tennis last summer just as hard as anybody could play. In football games he went into them with all the force he had, and baseball the same way. He was very enthusiastic. He belonged to the volunteer fire company, and, if Walter didn’t feel like it when the bell rang, it didn’t make any difference how he felt, when it rang he went. Nothing would stop him from going. He was right there at his post. I, having been his wife, had an opportunity to observe liis apparent condition of health. I believe that any one having seen him on the streets they could never have known that he had been sick one day. He was as young as a boy. He seemed to be about 21 or 22 years old. You would never have thought him to b,e 30 years old. If engaging in these sports and pastimes had any effect on him, it helped him. .My husband had no bad habits. He was a sober man, very industrious. He was economical. We were furnishing- our home, and trying to get a start.”

On cross-examination she said:

“Of course, in running the household, my husband and I lived there, and each one served the other. If he wanted anything done in the way of patching clothes or sewing on buttons, I would do it for him, and our services rendered one to the other were a mutual thing. I have answered that my husband contributed to me from $60 to $75 a month. I do not mean that he would just hand that much money over to me. I mean that it would take $125 or $150 a month for both of us, and of course my part of it would be half. I am sure that I am correct in stating that his only source of income was from the paper, plus whatever came from the real estate business.”

Mrs. May Hulbert, mother of the deceased, testified, among other things:

That the deceased lacked a little of being 21 years old when he took over the business management of the Lancaster Herald; that the occasion of his “taking charge of the business was that his father lost his health; that his father had a nervous stomach trouble and a sunstroke and was not able to do any business after that.”

She further testified:

That the deceased was the “mainstay” of herself and husband; that the sources of their revenue during his management of the newspaper came from him, “from the office, and he made it. It came from the office and Walter. He made it from the printing plant. All the revenue we had was from the Lancaster Herald. Our living expenses, including dry goods and groceries and incidental expenses of the household, amounted to between $175 and $200 a month. I believe the figures were $177 and something, as near as I can recollect.”

She further testified that her husband had been a sufferer from asthma for about 30 years, and the deceased, Walter Hulbert, about 10 years; that the deceased had about four spells of asthma a year, each of which lasted from three to ten days; that, aside from his spell of asthma, the deceased appeared healthy; that he played tennis, baseball, football, and was a member of the fire department; that the fire department would have to pull the hose cart to fires when they occurred; and that the deceased did his share of that.

E. M. Hulbert testified:

“I have had asthma about 30 years, as near as I can remember, but I don’t think it is as bad as it used to be. * * * I don’t know exactly what the circulation of the paper was, 1,-400 or 1,500, somewhere around there. * * * It was a weekly paper, a dollar a year.”

John E. Davis, engaged in the newspaper business at Mesquite, in Dallas county, testified that the Lancaster Herald had been on his exchange list for 15 years; that he considered it one of the best country papers in Texas; that he knew the deceased, Walter Hulbert, well; that he had had occasion and opportunity to observe frequently the advertising matter of the Lancaster Herald and the character of the management and supervision that Walter Hulbert exercised over it during his lifetime; that, from his knowledge of Walter Hulbert and the character of the Herald, he regarded him as a very capable newspaper man. He further testified, in answer to a hypothetical question, that taking for example the Lancaster Herald, with 1,250 subscribers, under the management of such a manager as Walter Hulbert, producing an income of from $175 to $200 a month net to the owner besides paying whatever compensation he took out of it and paying the expenses of the paper, etc., there was a market value in Dallas county and the surrounding country for managers of that kind; that the market for the services of such a manager is in the printing establishments over the country, and that, in his opinion, the services, such as were rendered to the Lancaster Herald by Walter Hulbert, were worth from $150 to $200 a month.

In relation to the nature of asthma and the question of whether its tendency was to shorten life expectancy, several expert physicians testified.

Dr. B. F. Lyon, of Lancaster, said, in substance, that he became acquainted with the deceased, Walter Hulbert, in 1899 or 1900; that he had known him intimately since that time; that he was not positive when he was first called to prescribe for him, but thinks it was in 1906; that he treated him for asthma from that time on until he died. He further says:

That in the beginning the attacks would last from four to ten days, and later would get longer and probably occur once or twice in a couple of weeks. “During the severe paroxysms or severe attacks he was confined to his room most of the time. Sometimes he would be able to get up during the day and go to his place of business and work a while, and the paroxysms would return, and he would go back home. His breathing was laborious and difficult.” That he examined him 10 or 11 years ago for life insurance. That he had asthma at the time and was rejected. That he examined his heart and lungs several times, and that probably two years ago thought he found the heart a little enlarged. That he waited on him for asthma in September last fall, and he had what was called chronic bronchial asthma. That he had examined him several times in the last six or eight years, and he had asthma bad. The paroxysms were very bad. That they varied to some extent, but he would say they averaged about four times a year. That the last attack was in September, about a month before he died, and lasted 10 or 12 days. That he did not believe a man in that condition would live three score and ten years, but that he would not undertake to say how long he would live.

Dr. G. M. I-Iackler testified, that asthma is a disease of the nerves, and affects the bronchial and smaller tubes of the lungs, and usually there is an encroachment on the mucous membrane of the bronchi, and has a tendency to lower the vitality and render persons more susceptible to other diseases. He further testified:

“My understanding is I think the heart is affected some after some of the other complications have arisen, emphycemia possibly, which is one of the complications of asthma after the patient has been suffering with it for some time. I feel like asthma does shorten the life of the person afflicted with it. I would not want to approximate the length of life, because some people would live longer than others. Some people would have more resistance than others, and we have no way of telling how much that resistance is.”

Dr. O. M. Rosser testified that where asthma has existed for seven or eight years, with about four attacks a year of from three to ten days' duration, it is looked upon, he thought, “scientifically,” as tending to shorten life expectancy. He said:

“I think that in a great number of cases the statistics would show a shorter life expectancy than it would in the same individual who did not have i't. It would be so problematical, however, that practically I would not think so. I think the statistics would show some slight decrease. I think it is highly speculative. My observation of asthmatics has been that they live as constantly and as safely as other people. I have never known a patient to die of asthma.”

Dr. S. E. Milliken testified:

“I have boon living in Dallas and practicing medicine here for 26 years. I knew Walter Hulbert in his lifetime. I am a graduate of the University of Louisville, Ky., and have had hospital work in Louisville and New York. I treated Walter Hulbert a number of times during the past three or four years, and had occasion to see him in the year 1913. I examined him about two weeks before he died in October, 1913. Previous to that time I had made a number of examinations of him. He had bronchial asthma, but nothing else that I ever found. I searched for other things. I examined his heart some months before he died. I prescribed for him constitutional treatment a number of times. I did not find any complication to his heart at the time I examined it. There was no enlargement of his heart that was perceptible. I mean by that, if there was any, I couldn’t detect it. I think I am qualified to detect when a man’s heart is too big. A man’s heart gets too large sometimes from asthma. That is one of the complications which we doctors always look for. Mr. Hulbert’s asthma was strictly a typical case of bronchial asthma. With reference to his appearance, he looked about the same as when I first saw him. Hypertrophy, when applied to the heart,' means an enlargement of the heart. Hypertrophy with dilation is a condition that comes on subsequent to hypertrophy. The process of hypertrophy is the result of intense effort of the heart muscles to pump the blood through the veins, and the dilation is the result of the heart after hypertrophy and its failure to do its work. It pulls or spreads out, as it were, and becomes, weaker. That is one of the great dangers to which an asthmatic is subject. X found nd such condition in Walter Hulbert at the time I examined him. I never was able to detect that Walter Hulbert had any emphyeemia, which is dilation of the little air chambers — the smallest air cells in the lungs — and the emphycomiaus condition is when they become dilated and the lung is unable to expel the air, or, in other words, to get the fresh air in and the old air out. In other words, a man drowns on his own oxygen — on his own air — because he cannot get the oxygen in his lungs and get a change in his blood, which is what oxygen does. That is what emphyeemia is, and I don’t find any of that. Walter Hul-bert had a normal chest, and not a barrel chest. I should think that outdoor sports would be beneficial to an asthmatic. I would not require him to cease from them. In the advanced states of asthma, the difficulty is that they cannot lie down when their spell is on. The fact that they are able to lie down would bo a good sign, I should say.”

L. M. Cathles testified that the American Experience Table of Mortality shows the life expectancy of a man 30 years of age to be 3533/100 years; that, on an average, a man who lives to be 30 years of age will live 35 years or more.

There was also testimony adduced tending to show that the earnings of the deceased during the last 10 years of his life did not exceed $70 per month, and, basing an estimate of the pecuniary value of his life to his wife on such earnings alone, it would fall short of the amount awarded by the jury. Such especially was the tendency of the testimony of the witness O. A. Buford, an expert accountant, employed to audit the books of the Lancaster Herald. But this testimony was not conclusive of the amount of the deceased’s monthly earnings. On the contrary, the testimony of Mrs. Lenice Hulbert, quoted above, is to the effect that her husband received, from the business in which he was engaged at the time of his death, from $125 to $150 per month, and that she received one-half of said amount, and in addition to this is the testimony of the witness Davis to the effect that the value of deceased’s services was from $150 to $200 per month. Besides, in Railway Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838, which was a suit by the surviving wife to recover for herself and two minor children damages suffered on account of the death of the husband and father, it is said by the Supreme Court of this state that:

“While the law does not, in this character of action, intend to give compensation for anything but pecuniary loss by estimating the money value of the life of the relative, and while it necessarily results that regard must in each instance be paid to such facts and conditions as cast light upon the subject, it yet must be admitted that the inquiry is not intended to be narrowed down by the law to a result that can be exactly accounted for by the facts in evidence. Every parent and husband has, for his wife and children, a pecuniary value beyond the amount of his earnings by his labor or vocation.”

These remarks, contrary to the views expressed by counsel for the appellant in argument, are as applicable where the surviving widow sues for the damages sustained by her and the interest and rights of minor children are not involved, as in cases where the suit is to recover damages for herself and minor children. This is made perfectly clear by the language of the court, which, omitting that applicable to children, is that every husband has for his wife a pecuniary value beyond the amount of his earnings or vocation. It is further remarked in this case that the difficulties of proof in such actions are known to the lawmaker, and that:

“When no amount is fixed by law [as is the ease with us], and no rule is prescribed for making the calculation upon facts capable of exact ascertainment, it necessarily follows * * * that the lawmaker intended that, having reference, as far as practicable, to conditions existing at the time of the death, juries from their own knowledge, experience, and sense of justice should fix and assess the proper sum.”

That the rate of wages paid at the time of the death of the deceased in suits of this character is not exclusively the standard of the damages sustained is affirmed in Baltimore & Ohio Railway Co. v. State, 24 Md. 271, and this case is cited with approval in Railway Co. v. Lehmberg, supra. But, if it was the duty of the jury to calculate the pecuniary value of Walter Hulbert’s life to his wife from the facts disclosed by the evidence specifically showing such value, still we are not prepared to say the verdict should be set aside on the ground that it is excessive. We think the evidence, as a whole, sufficient, even though it be admitted that the life expectancy of Walter Hulbert, on account of the asthma with which he was suffering, was only about one-half of what it otherwise would have been, to authorize the jury’s finding that Mrs. Lenice Hulbert had sustained damages on account of the death of her husband in the amount awarded her, and, if it does, then, under the thoroughly established rule of practice in this state, we would not be warranted in disturbing their verdict. This is true, notwithstanding this court, sitting as a jury, might, upon the same evidence, have awarded a smaller amount. It is only when the evidence so preponderates against the verdict that it may be said to be clearly wrong that the appellate court should interpose and set it aside. No such preponderance, in our opinion, is found in this case. Of course, juries are expected to act and should act uninfluenced by partiality, passion, or prejudice, “and to pay due regard to the ascertained facts,” and, when it appears that they have failed so to act, their verdict should not be allowed to stand. If, however, as said in the case of Railway Co. v. Lehmberg, already referred to—

“the court is unable to determine that these things have not been observed by the jury, and when it does not appear that the verdict is not the result of the honest endeavor of the jury to follow their own convictions in the exercise of a power not precisely defined, we think the law intends that the jury’s estimate, rather than the equally undefined one of the judges, shall prevail.”

There is nothing in the record sent to this court, unless it be the amount of the ver-diet, which in the slightest indicates that the jury was influenced, in estimating the pecuniary loss of Mrs. Hulbert on account of the death of her husband, by any improper motive, and, as there is substantial testimony in support thereof, their verdict will not be set aside.

The second assignment of error complains of the admission, over objections of the appellant, of the testimony of the witness John Davis to the effect that there was a market value in Dallas county and the surrounding country for a manager of a newspaper such as Walter Hulbert was in his lifetime, and that the reasonable market value of the services of such a manager as Walter Hulbert was for the running of the Lancaster Herald was from $150 to $200 per month. There are four propositions propounded under this assignment, which are as follows:

Eirst: “In a suit of this character (for the recovery of compensation for the loss of a husband), it is improper and prejudicial to admit proof, even by an expert witness, of the market value of the services of such a manager of a newspaper as the deceased, Walter Hulbert, was. There is no market value of men or any man. There may be a reasonable, customary, ordinary price or compensation paid to employes, agents, or managers, whether same be railroad, store, or newspaper, but we submit that there is no market value- for such a purpose, in connection with the personal traits and habits of any individual.”
Second: “The witness John Davis failed to qualify as a witness as to the market value of such a person as Walter Hulbert, or that there was a market for such a person, and hence should not have been permitted to testify upon the question.”
Third: “The question propounded to the witness is argumentative and suggestive, and calls for the opinion and conclusion of the witness.”
Fourth: “The market value of services, such as were rendered by Walter Hulbert, was not the standard of damages presented in the petition of plaintiff, and hence the same should not have been permitted.”

No case is cited in which the first question presented has been passed upon by any appellate court in this state, and it seems to be one of first impression here. Decisions in other jurisdictions directly in point, however, have been furnished us by counsel for appellees. Railway Co. v. Teeter, 166 Ind. 335, 77 N. E. 599, 5 L. R. A. (N. S.) 425; Harmon v. Old Colony R. Co., 168 Mass. 377, 47 N. E. 100. In the first case cited, one of the questions asked the witness, and which was objected to, is as follows:

“In the profession of life for which you have fitted yourself, and which was your calling and life work, you may state to the jury what, at the time of the accident, your services in said profession were fairly and reasonably worth in the market.”

Upon appeal, appellant’s counsel urged that while it was competent for the appellee to state what his employment was, and all the facts and circumstances which would teud to show his ability to earn money, it was not competent for him to give in evidence his opinion as to the market value of his services. The Supremo Court of Indiana held the question proper and the testimony competent. In so doing the court said-

“Dealing * * * with the question as to the testimony as to the fair and reasonable worth of appellee’s services in the market, we have to say that there can be absolutely no question as to the right to prove such a fact as applied to some distinct vocation in life, in which the person in question is specially skilled, and concerning which it may be presumed that there exists a demand at a salary or wage compensation.”

In support of this ruling the court cited a number of cases, among which is the case of Harmon v. Old Colony R. Co., 168 Mass. 377, 47 N. E. 100, supra, and from which the following quotation is made:

“If the plaintiff’s services had a market value, in the kind of business in which she was engaged, such market value might be proved to the jury as a fact which they might take into consideration in determining the amount of damages.”

Again, in Matteson v. New York Central Railroad Co., 35 N. Y. 487, 91 Am. Dec. 67, we find the following statement and holding of the court, namely:

“With a view to establishing the amount of damages, the question, ‘What could such services as Mrs. Matteson’s be procured for?’ was competent; the witness having.stated, * * * also, his means of knowledge. The value of the services of different individuals varies, and the plaintiff was not confined to the average value, if the services of his wife were worth more than that.”

John Davis very clearly qualified as a witness competent to speak as to whether or not the services of such a man as Walter Hul-bert had a market value, and as to what was such market value, and, upon the authority of the cases above cited, we hold the court did not err in admitting his testimony in respect thereto. The text-writers use the terms “value” and “market value” as interchangeable and both as being equivalents of actual value, and so, after all, the appellee, in proving the market value of the deceased’s services, as was done by the testimony here under consideration, only proved their actual value. The witness Davis, speaking of the character of services of Walter Hulbert, said:

“I will say that a man desiring to sell that character of services would have no difficulty in doing so. * * * The market is in the printing establishments over the country.”

The objections to the testimony should not have been sustained on the ground that the question eliciting it was argumentative, suggestive, and called for the opinion of the witness, nor on the ground that the market value of services, such as were rendered by Walter Hulbert, was not the standard of damages presented in the petition. The question was a hypothetical one, enumerating the facts in evidence upon which the opinion of an expert witness was sought in relation to matters which were the subject of expert testimony, and the allegations of the petition were broad enough and amply sufficient to authorize the admission of such testimony.

Appellees liave filed and presented in this court a motion to affirm the judgment, with damages. This motion will be denied. In view of the size of the verdict and the conflicting testimony in regard to the amount of the damages sustained by Mrs. Hulbert, we do not think it can be fairly said that appellant’s assignments of error are so clearly without merit as to justify the conclusion that the appeal was not taken in good faith and without reasonable grounds to believe the judgment should be reversed.

The judgment is affirmed, without damages.

Affirmed.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J. HENDRICKS, J. HUFF, C. J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. et al. v. DALTON.
    (No. 763.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 24, 1915.
    Dissenting Opinion. May 11, 1915. Rehearing Denied May 22, 1915. On Motion to Certify to Supreme Court, June 5, 1915.)
    1. Cotjkts <§=>97 — Juisdiotion— Decisions oe Federal Courts — As Authority in State Court.
    In a shipper’s action for damages to an interstate shipment of live stock, shipped under a written contract, the decisions of the federal courts control, and the Court of Civil Appeals must follow them.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. <@=>97.] .
    2. Carriers <@=>228 — Injury to Live Stock-Action eor Damages — Pleading and Proof —Reasonableness oe Stipulations.
    In an action for damages to a shipment of live stock from delay and rough handling, under a stipulation in the written contract that as a condition precedent to any claim of damages the shipper, as soon as he discovered any injury, should promptly give written notice to some general officer, claim or station agent, or to the agent at destination, or to some general officer of the delivering line, before removing the stock, and within one day after delivery, and the shipper’s agreement that failure to give the notice should bar recovery, the carrier had the burden of showing that the stipulation, as to the particular shipment, was reasonable, and that it had an officer or agent at or near the place where the notice was to be given, and, where there was no such allegation and proof, the shipper was not required to prove notice oí-an excuse for not giving notice; and the fact that damages were known to the shipper, or the shipper’s direction to a commission company to put in the claim, did not dispense with proof that there was an agent to receive notice.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>22S.]
    Hendricks, J., dissenting.
    On Motion to Certify to Supreme Court.
    3. Courts <@=>247 — Court oe Civil Appeals —Certificate to Supreme Court — Federal Question.
    Where the question involved in an action for damages to an interstate shipment of live stock, defended on the ground of the shipper’s failure to give the notice of injury required by the written contract of shipment, was a federal question of which the Supreme Court of the United States had final jurisdiction, appellant, if the opinion of the Court of Civil Appeals was erroneous, had a plain, adequate, and complete remedy by due course of law, by proper application to the Supreme Court of the United States, so that it was not mandatory upon the Court of Civil Appeals to certify the case to the state Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <§=247.]
    4.Courts <@=>247 — Court oe Civil Appeals —Conclusiveness oe Decision.
    The decision of the Court of Civil Appeals on appeal from the county court is final, and a certificate to the Supreme Court does not lie, and, if the Supreme Court had jurisdiction by virtue of a dissent, appellant was not deprived of the remedy by petition for writ of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <@=>247.]
    Appeal from Sherman County Court; J. W. Elliott, Judge.
    Action by A. M. Dalton against the Chicago, Rock Island & Gulf Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    N. H. Lassiter, of Ft. Worth (Moore & Powell, of Dalhart, and Gustavus & Jackson, of Amarillo, of counsel), for appellants. Jno. H. It. Stahl, of Stratford, for appellee.
   HUFF, C. J.

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 hy 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 tbe court in finding negligence in tbe particulars alleged in tbe petition, and that by reason thereof tbe cattle were injured, and that tbe appellee suffered damages to tbe amount found by tbe court, $686.84.

Tbe appellants introduced written contracts or receipts to the appellee, executed by tbe Chicago, Bock Island & Gulf Bailway Company at Komero, Tex., which contract contained tbe 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 tov 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 x-easonable 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 aver-ments 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 ease 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 pei'son, 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, thi-ough another carrier. Wo are of the opinion that there was no error in sustaining the demuri-ers 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 he 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 Har-ter 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 Fed. 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 Fed. 170; Pac. S. S. Co. v. Bancroft, 94 Fed. 180, 36 C. C. A. 135; Kahnweiler v. Insurance Co., 67 Fed. 483, 14 C. C. A. 485. The case of Kidwell v. Oregon Short Line, 208 Fed. 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 Okl. 469 [122 Pac. 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 Pac. 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, hut 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.

HENDRICKS, J.

(dissenting). In accordance with the live stock contract, pleaded by the carriers, and in evidence here, as set out in the majority opinion, the stipulation is based upon a freight rate, “less than the rate charged for shipments transported at carrier’s risk,” etc.

It is now a familiar subject, definitely adjudicated by the Supreme Court of the United States, that Congress has taken possession of the subject of liability of railway carriers, on account of interstate shipments, and the Interstate Law, particularly including the Carmack Amendment, and the rules of decisions prevailing in the federal 'courts, in regard to the interpretation and application of said law, supersede all laws and policy of any state, embracing said subject. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690.

The Supreme Court said, in the case 'of M., K. & T. Ry. v. Harriman Bros., supra, construing the Hepburn Act, and the Car-mack Amendment:

“The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or limitation.”

The provision in the contract, requiring notice of a claim for damages, in the case of Mo. Pac. Ry. Co. v. Harris, 67 Tex. 166, 2 S. W. 575, is as follows:

“Said 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 will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before such stock is removed from the place of destination above mentioned, or from the place of the delivery of the same to the party of the second part, and before such stock is mingled with other stock.”

The opinion of the majority of the court in the present case is practically based upon the Harris Case, supra, as one of controlling influence, determinative of the common law upon this subject. In that cause Justice Stayton said that it was contemplated that the animals should be transported over the line of the appellant’s railway, which did not extend to the place of destination, and that from the end. of the initial carrier’s line they should be transported over another railway, through the state of Illinois, to the destination.

As disclosed by the opinions of the Supreme Court of the United States, above cited, under the Hepburn Act and the Carmack Amendment, we know that the identity, as well as the agency, of all carriers, is complete from the initial to the delivering carrier — the agent of the last carrier is now, under the law, the representative of the initial carrier for all purposes relative to the interstate shipment. as much so as if he were in the direct employment of that carrier. The erstwhile stipulations of several liability of the different connecting carriers transporting the shipment are now void under the Carmack Amendment. One of the dominating features of the act is the prescribed issuance of a written bill of lading, or receipt for the goods, by the initial carrier, and another intermediate carrier cannot impose upon a shipper an additional contract while in the course of transportation — the same is without consideration. The interstate carrier may make reasonable stipulations for its protection, but not permitted, of course, to contract against its own negligence. In this case the Chicago, Rock Island & Gulf Railway Company originated the shipments (both shipments accompanied by the owner, the shipper), and the Chicago, Rock Island & Pacific delivered the shipments at destination (Kansas City, Mo.). One shipment arrived between 6 and 7 a. m., of one day, and the other about noon, or a little after, of another day. The shipper knew then the injury to his cattle on account of the treatment in the course of transportation and was acquainted with the shrinkage per head, and the damage in dollars per animal. He said that he did not himself make a presentation of his claim within 24 hours, as prescribed by the contract, but instructed his agent, the commission company, to whom the cattle had been consigned, to make the claim, but did not know whether it had been done.

When the cattle arrived at destination, he knew approximately the shrinkage and injury, as much so as he did when he gave his opinion under oath as to the injury to the cattle and the resultant damage to him when they arrived at destination; and I am only discussing that damage and injury within the purview of this contract, and the amount of which, I, of course, do not question. If I understand the meaning of the two contracts —the stipulation in this record, and the one in the Harris Case, supra, passed upon by Justice Stayton — they are essentially different. In the Harris Case the shipper was required to present his claim to some officer or agent of the initial carrier, or its nearest station agent, before the stock was removed from the place of destination, and before the same was mingled with other stock, with the attendant condition that the initial carrier’s railway did not reach the place of destination ; and'Justice Stayton said that the place of delivery being beyond the line of the initial carrier, and in another state, no presumption can arise that the initial carrier had an officer or station agent near the place of destination. The stipulation in this record prescribes that the shipper shall give his notice, either to a general officer, claim agent, or station agent of the first party, or to such representatives of the delivering carrier as well, before the stock is removed from the place of destination and mingled with other •stock, to be served in one day after the delivery of said stock at its destination.

I think to say that it could not be presumed that the Chicago, Rock Island & Pacific, which delivered these cattle at destination, did not have a station agent1 at destination, upon whom notice could be served, or some subagent within the same office, every hour and every minute of the day, is wholly untenable; as much so as to say that some prominent bank at Kansas City, Mo., did not have a teller in its banking house during the period of banking hours. It may be said that the answer in this cause should still show that, notwithstanding it may be presumed that the carrier had an agent at destination, such agent was so situated and was so accessible that the contract to give notice to such representative was reasonable. We are to presume that the shipper knew the contract; and, accompanying the cattle, his testimony shows, as to the injuries I am considering, he was acquainted with the accrued injury to the cattle at destination on account of the negligence of the carrier in transportation, and such shipper must be treated as a man of ordinary intelligence with a reasonable capacity to “move” under the condition confronting him; and without knowing how to argue it, it seems to me that viewing a shipper as of that standard (if the carrier had a station agent at Kansas City, Mo.), with any kind of a “move” on him, he could present the notice in writing of the claim for damages, at the office of the station agent, within the 24 hours and have a number of hours to spare. And if the agent, or some one for him, did not inspect the cattle commensurate with the immediate necessity to so do, that would not be the shipper’s fault.

Neither have we the question in this case, as was in the Harris Case, of casting the burden of responsibility upon the shipper, of determining the character of the agent within the meaning of the contract, upon whom to serve the notice. When the contract says delivery to the station agent of the delivering line, the shipper would certainly know the position of a station agent at destination. Wichita Falls & Western Ry. Co. v. Koch, 47 Kan. 753, 28 Pac. 1014. And I think an agent at destination at its station, whether handling exclusively freight or passengers, at such station, is its station agent within this contract

As stated, I do not think we are concerned in this record with injuries of an undeveloped nature which could not he determined before the stock was removed from the point of destination, as in the case of Ormsby v. Union Pacific Ry. Co. (C. C.) 4 Fed. 170, where it is held that the contract was of no effect as to sickness, the extent of which could have been known for some time after the removal of the stock from the car; and likewise in the case of Railway Co. v. Harwell, 91 Ala. 340, 8 South. 649, where the shipper did not discover, and by ordinary diligence could not have discovered; the injury and its .extent before the animals were removed; also, the case of Giles v. Atchison, Topeka & Santa Fe Ry. Co., 92 Kan. 322, 140 Pac. 875, where the court speaks of an exception to the rule where the shrinkage resulted from the cattle having to be carried to the next day’s market as to which notice of loss was unnecessary. The case of Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132, by the Supreme Court of Kansas, affords a discussion of exceptions and distinctions with reference to these matters. There are many cases holding that a carrier is entitled to notice of a claim for damages, for the purpose of protection to it, before the cattle are removed from destination and mingled with other stock, on the theory that while the matter is still fresh, and for the purpose of instituting inquiries and furnishing itself with information on the subject of its liability and the extent thereof.

The Circuit Court of Appeals of the Ninth Circuit, in the case of Kidwell v. Oregon Short Line Ry. Co., 208 Fed. 3, 125 C. C. A 313, expressed it in this manner (referring in this language to the right of the shipper to examine the cattle):

“If, on arrival of live stock at destination, the shipper who, as in this ease, accompanies them, finds that they have been injured by the negligence of the carrier, it is a reasonable provision of the shipping contract that he give) notice to the carrier, of the extent, nature, and amount of his claim for damages, and that this shall be done before the stock are mingled with other stock, in order that the carrier may have the opportunity to make timely investigation and protect itself against fictitious or imaginary claims.”

As another illustration, I cite the case of Railway Co. v. Ladd, 33 Okl. 160, 124 Pac. 462, involving a 50 hours’ delay to Kansas City, and a loss of extra flesh to the cattle, at 50 pounds per head. The court said:

“From the very nature of the injuries alleged to have been inflicted upon the cattle, it must have been apparent at once upon their arrival at their destination that they were seriously damaged, and there was nothing to prevent plaintiff from making the necessary claim, and give the railroad company an opportunity to examine the livestock before it was removed from their premises and mingled with other cattle.”

Justice Brown, of the Supreme Court of the United States, in the case of The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 422, said, in speaking of the case of Railway v. Lockwood, 17 Wall. 357, 21 L. Ed. 627:

“It was held by this court that common carriers may impose almost any just and reasonable limitation upon their common-law liability, not amounting to an exemption from the consequences of their own negligence. The methods of transportation have changed so radically during the century which has just closed that it seems almost necessary to the proper protection of a carrier, in transacting the enormous business of railway and steamship lines, that he should have the power by just and reasonable limitations, incorporated in his contract or brought to the attention of his shippers, to place some restrictions upon the unlimited liability of the common law,” etc.

The justice mentioned particularly articles of great value which are carried without information of their character, and then further says:

“That persons intending to make claims for losses should manifest their election to do so as soon as the circumstances can by reasonable diligence be ascertained. The law recognizes the fact that the measure of-liability originally applied to a carter’s wain or a waterman’s hoy may often be illy adapted to the exigencies of modem commerce.”

In this cause the federal Supreme Court cites the Harris Case and the case of Pacific Express Company v. Darnell (Sup.) 6 S. W. 765, and I do not at all construe its opinion as impliedly approving either of the cases in any manner.

The case of Goggin v. Kansas Pacific Railway Co., 12 Kan. 324, and quoted from in the opinion, is cited by the Supreme Court of the United States argumentatively as sustaining the position of the court in deciding the particular cause; the Goggin Case being one requiring notice of damage to live stock, even before the stock was unloaded from the cars, and though the question of pleading that the carrier had an agent and the character of same, upon whom notice could be served, was not involved, the tendency of the Goggin Case is in entire opposition to the tendency of the Harris Case as applied to this case, and the decisions of the Supreme Court of this state, following it — that is, if you say that the Harris Case is the same as this case upon the facts. The Kansas Supreme Court said:

“The defendant (the carrier) was engaged in transporting great numbers of cattle over its road, which were shipped further to market, or so commingled with other stock that it would be impossible to distinguish one car load from another, unless attention was called to them immediately;' and the object of the notice was to relieve the company from false and fictitious claims, by having an inspection of the cattle before they were removed or mingled with other cattle, and proper damages ascertained and allowed — of which reasons the plaintiff had full knowledge, and still chose to ship at reduced special rates. The reasons are cogent, and we are unable to see how it contravenes public policy that a special contract at reduced rates should stipulate that reasonable notice of injury should be given.”

The Supreme Court of the United States particularly quoting this language from the case:

“The parties were competent to make the contract and did make it, and it must be held good unless it is contrary to public policy”— which the Kansas Supreme Court held that it was not.

The cattle shipping cases hereinafter cited by me to my mind clearly establish the proposition that, if the contract is reasonable, the carrier is entitled to notice at destination, before the stock are removed or mingled with other stock, of the claim for damages. Some of the courts and the decisions cited seem to treat contracts of this character as reasonable without discussion, as illustrated by the case of Clegg v. Railway Co., 203 Fed. 971, 122 C. C. A. 273, decided by the Circuit Court of Appeals of the Eighth District.

A libel case, in admiralty (The Westminster, 127 Fed. 681, 62 C. C. A. 406), by the Circuit Court of Appeals of the Third Circuit, bears upon this question. The case was one to recover damages for injury to merchandise, and the bill of lading provided that neither the shipowner, nor his agents, or servants, should be liable for any claim, “notice of which is not given before the removal of the goods.” The court said:

“No doubt the consignees were entitled to a suitable opportunity to make an intelligent claim, but they had it. Whatever may be the case where the injury is latent and the liability doubtful, neither can be alleged of what, on the face of things, appeared here.”

What appeared upon the'face of things, as I construe the case, was the condition that:

“It was known at once, on the arrival of the ship and the discharge of the cargo, that the goods were seriously damaged. * * * There was nothing * * * to prevent the parties interested from * * * making the necessary claim. * * * It is true (said the court) that, even with this construction, the time limit is a short one, but not so short in the present instance, as is shown above, as to abridge unduly the rights 'of the parties. Provisions equally stringent have been sustained in several cases. In Moore v. Harris, L. R. 1 App. Cas. 318, and in Angel v. Cunard Steamship Co. (D. C.) 55 Fed. 1005, the condition — the same as here— was for notice before removal. So was it, with regard to live stock shipments, in Southern Ry. v. Adams, 115 Ga. 705, 42 S. E. 35; Wood v. Southern Ry., 118 N. C. 1056, 24 S. E. 704; Wichita Ry. v. Koch, 47 Kan. 753, 28 Pac. 1013; and Rice v. Kansas Pacific Ry., 63 Mo, 314. While in Kyle v. Buffalo R. R., 16 U. C. C. p. 76 (24-hour limit); in St. Louis R. R. v. Hurst, 67 Ark. 407, 55 S. W. 215 (a 30-hour limit); in Lewis v. Great West Ry., 5 Hurlst. & Norm. 867, and Moore v. Great Northern R. R., L. R. Irish, 95 (a three-day limit) ; in Black v. Wabash R. R., 111 Ill. 351, 53 Am. Rep. 628 (one of five days) — were all enforced.”

While, under the condition of the pleadings and evidence here, I am not concerned with the burden of proof; however, as to the question of the burden of proof in giving the notice, the Circuit Court in that cause said:

“The confusion, if any (upon this subject), grows out of supposing that want of notice was to be proved in the first instance by the respondent. The giving of notice was an affirmative fact peculiarly within the knowledge of the libelants (the plaintiffs), both with regard to the time when, and the agent or representative of the shipowners to whom, it was given; and, the want of it having been set up in the answer, * * * ft was incumbent on the libelants to prove it, as a condition precedent to the right to recover, * * * even if the stipulation could be regarded in the nature of the statute of limitations, * * * which it is declared in Express Co. v. Caldwell [21 Wall. 264], 22 L. Ed. 556, that it is not, still, having been pleaded, and the libelants thereby notified that it would be relied upon, they were bound by every rule to show compliance, or that which would excuse it, or be barred.”

Since the act of March 3, 1891, establishing the. Circuit Court of Appeals, the Supreme Court of the United States has no jurisdiction to review the judgment of the Circuit Court in admiralty causes by appeal or upon a writ of error. They have to be certified to the Supreme Court by the Circuit Court, or the whole case may be required by the Supreme Court to be sent up by certiora-ri, issued for that purpose, or otherwise. The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. Ed. 320; Oregon Ry. & Nav. Co. v. Balfour, 179 U. S. 55, 21 Sup. Ct. 28, 45 L. Ed. 82; United States v. The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897. The Supreme Court of the United States granted the writ in The Queen of the Pacific, but denied it in The Westminster.

From the array of cases upon the subject, of notice, before cattle are removed from destination, I do not think it can be said, because the cattle are intended for immediate sale, for that reason, of itself, the carrier is not entitled to notice. Hence, if upon arrival at destination the shipper and owner accompanying the cattle knew of the damage (and it is clear to me in this case that he did), and if it should be asserted that the delivering carrier in this case had a station agent at destination upon whom notice could have been served, and that the shipper, as a reasonably intelligent man, could, at Kansas City (which we judicially know is a large commercial center, Parks v. Jacob Dold Packing Co., 6 Misc. Rep. 570, 27 N. Y. Supp. 289), witbin a reasonably short time, could have notified some station agent or some one in his office under him, of said claim, then the carrier is entitled to notice. Except as to the question of waiver, and excluding the cases when the injury is of such a character, as of an undeveloped nature, or where the shipper is unable to inform the carrier of the injury, which do not come within the purview of the contract, in the very nature of things, I am unable to conceive of supervening conditions, where the shipper knows the injury when he arrives at destination with his stock, which would prevent him from giving the notice, as that such supervening conditions would make the contract unreasonable under the decisions, except the one of not being able to find the agent upon whom to serve the notice; and being convinced in this character of case, and under the contract, from the “swing” of the law upon tlie subject, that such a position is untenable, I respectfully dissent from the majority holding.

I submit the following authorities, some of which are already cited, upon interstate shipments, which I think, when tested, bear out the contention made here, whatever one may think of the policy of such a rule — with which I am not concerned: Clegg v. St. L. & S. F. R. Co., 203 Fed. 971, 122 C. C. A. 273; McElvain v. Railway Co., 176 Mo. App. 379, 158 S. W. 465; Giles v. Atchison, Topeka & Santa Fe, 92 Kan. 322, 140 Pac. 875; Missouri Pacific R. Co. v. Park, 66 Kan. 248, 71 Pac. 586; St. D., I. M. & S. Ry. Co. v. Shepherd (Ark.) 168 S. W. 137; Railway Co. v. Ayers, 63 Ark. 331, 38 S. W. 515; Smith v. Chicago, Rock Island & Pacific, 112 Mo. App. 610, 87 S. W. 9; Owen v. Louisville & N. R. Co., 87 Ky. 626, 9 S. W. 698; Southern Ry. Co. v. Tollerson, 129 Ga. 647, 59 S. E. 799; Pavitt v. Lehigh Valley R. Co., 153 Pa. 302, 25 Atl. 1108; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 South. 649; Parrill v. Cleveland, C., C. & St. L. R. Co., 23 Ind. App. 638, 55 N. E. 1026; Selby v. Wilmington & Western, 113 N. C. 588, 18 S. E. 88, 37 Am. St. Rep. 635; Austin v. Railroad, 151 N. C. 137, 65 S. E. 757; Wichita & Western Railroad v. Koch, 47 Kan. 753, 28 Pac. 1013; Southern Ry. Co. v. Adams, 115 Ga. 705, 42 S. E. 35; Kidwell v. Oregon Short Line Ry. Co., 208 Fed. 3, 125 C. C. A. 313; Railway Co. v. Cake, 25 Okl. 227, 105 Pac. 322.

On Motion to Certify to Supreme Court.

HUFF, C. J.

The m&tion to certify is based upon the dissent of Mr. Justice Hendricks. The question involved is a federal question, of which the Supreme Court of the United States has final jurisdiction. If the opinion of the majority is erroneous, appellant has a plain, adequate, and complete remedy by due course of law, and by proper application to the Supreme Court of the United States may obtain the relief desired. We therefore do not believe it to be mandatory upon us to certify. State v. Fisher, 94 Tex. 491, 62 S. W. 540.

This being a county court case, we have final jurisdiction on questions arising under the laws of this state, and hence do not recognize it as being our duty to certify. Herf v. James, 86 Tex. 230, 24 S. W. 396; Kidd v. Rainey, 95 Tex. 556, 68 S. W. 507; Miller v. Mosely, 91 S. W. 648; Day v. Mercer, 175 S. W. 764.

If the Supreme Court has jurisdiction by virtue of the dissent, then appellant is not deprived of the remedy by petition for writ of error. We do not believe a certificate to the Supreme Court &f this state would settle the federal question involved, for at last the Supreme tribunal of the United States would have jurisdiction over the question. The motion to certify will be overruled.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BARSTOW et al. v. WARD COUNTY IRR. DIST. NO. 1.
    (No. 489.)
    (Court of Civil Appeals of Texas. El Paso.
    May 20, 1915.
    Rehearing Denied June 17, 1915.)
    1. Constitutional Law <&wkey;289 — Eminent Domain <5&wkey;71 — Due Peooess oe Law — Compensation foe Property Taken — IRRIGATION DISTRICTS.
    Chapter 172, Acts 33d Leg. (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5107 — 1 to 5107— 105), provides for the organization of public irrigation districts. Const, art. 1, §§ 17, 19, provide that no person’s property shall be taken, damaged, or destroyed for, or applied to, public use without adequate compensation, nor taken without due process of law. M eld, that the statute is not unconstitutional as giving the board of directors of the district unlimited power to place an excessive valuation upon the property within the district for the purposes of a bond issue.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 870; Dec. Dig. &wkey;> 289; Eminent Domain, Cent. Dig. §§ 180-187; Dec. Dig. &wkey;71.]
    2. Constitutional Law <&wkey;289 — Eminent Domain &wkey;>71 — Due Peooess of Law — Taking Peopeety — Irrigation Districts.
    Chapter 172, Acts 33d Leg., provides for the organization of public irrigation districts. Const, art. 1, §§ 17, 19, forbids the taking of property without adequate compensation, unless by consent and by due process of law. Meld, that the statute is not unconstitutional as authorizing the directors of an irrigation district to take property without due process, and without the owner’s consent; section 24 providing the process for acquirement.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 870; Dec. Dig. «&wkey;289; Eminent Domain, Cent. Dig. §§ 180-187; Dec. Dig. <&wkey;71J
    3. Statutes <&wkey;64 — Partial Invalidity — Effect.
    That the particular provision of chapter 172, Acts 33d Leg., relating to irrigation districts, which makes the declaration of the district court as to the validity of bonds issued final, may be unconstitutional, does not vitiate the remainder of the act.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 5S-66, 195; Dec. Dig. &wkey;>84.]
    4. Eminent Domain <&wkey;2 — Taking of Property-Taxation of Riparian Rights.
    Where land has been incorporated within an irrigation district according to statute, taxation of riparian rights belonging to owners of land within such district does not constitute a taking of property.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. &wkey;s2.J
    Appeal from District Court, Ward. County; S. J. Isaacks, Judge.
    Action by George E. Barstow and others against the Ward County Irrigation District No. 1, to enjoin the sale of certain bonds. From an order denying the writ, plaintiffs appeal.
    Affirmed.
    J. W. Parker, of Pecos, and B. W. Baker, of Barstow, for appellants. Buck & Starley, of Pecos, for appellee.
   HARPER, C. J.

Plaintiffs filed their petition for injunction, seeking to enjoin the sale of certain bonds issued by the defendant Tbe cause was set down for hearing, and notice given to defendant to appear and show cause why the injunction should not issue. Hearing was had in vacation, and order entered denying the writ, from which this appeal is taken.

The petition alleges: That the defendant is a public irrigation corporation, organized under chapter 172, Acts of Thirty-Third Legislature of Texas (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5107 — 1 to 5107 — 105). That, prior to the organization of the district, plaintiffs were the owners of certain lands, now incorporated in the district, with established water rights issued by the Barstow Irrigation Company, a private corporation, and which said company had contracted to furnish water to all of plaintiffs’ lands at $1.50 per acre. That defendant purchased the said irrigation company’s plant, an,d thereupon said Barstow Irrigation Company went out of existence, and thereafter refused to further comply with its contracts with plaintiffs. That, by the purchase aforesaid, the defendant assisted the said company in breaking contracts, and thereby seeks to take from plaintiffs their valuable water rights acquired aforesaid, and now seeks to force defendants to pay a much larger price for their water, and now seeks to force plaintiffs to pay the same price for water that people owning nonriparian lands have to pay, and by this means has divested the plaintiffs of important vested rights. That said lands have been assessed at a fictitious and excessive valuation for the purpose of issuing bonds in excess of the constitutional limit, to wit, one-fourth of the actual value of the lands included in the district. That the bonds to the amount of $525,000 have been issued and a portion of them sold and the balance are now about to be sold. That, because of the excessive valuation and consequent tax levy, plaintiffs’ lands are materially depreciated in value, etc., and pray that the proposed sale of the bonds not sold be enjoined. The defendant answered by plea in bar, res adjudicata, and specific denials of the allegations in the petition.

Plaintiffs contend that the statute under which the defendant is organized is unconstitutional, because in violation of section 19 of article 1 of the Constitution of Texas, in that the effect is to deprive the plaintiffs of their property x-ights, otherwise than by due course of law: First, because the act provides that the judgment of the district court of this county, holding the bond issue valid, is final, from which no appeal can be taken. Further that the act of the Legislature is violative of section 17, ait. 1, of the Constitution of Texas, which is that “no person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,” (a) because the act gives the board .of directors of tbe district unqualified and unlimited power to place a fictitious, excessive, and unlimited valuation upon the property included in its territory, ii’respective of its true valuation; and (b) because it authorizes the defendant to take away from the plaintiffs, without their consent, their riparian rights (i. e., their rights to take water from the stream at their own expense).

The answer to the foregoing propositions is that the act is not violative of the aifficles of the Constitution named, because it does not admit of an excessive valuation for the purpose of a bond issue, but provides that bonds may be issued to the amount one-fourth of the actual value of the lands of the district, and no more; and the facts in the record sustain the trial court in holding that there was no excessive valuation for the purpose of the bond issue. Nor is the act subject to the criticism that it authorizes the directors to take property without due process and without consent of the owner. Section 24 of the act expressly provides the process by which same may be lawfully acquired.

As to the other question suggested, that the act is unconstitutional, because it pi'ovides for the district court to declare the bonds valid without appeal, it is not necessary to here pass upon that pai*t of the act, because, from the showing here, the bonds were lawfully issued, regardless of the decree of the district court in their favor ; and, if this particular pi-ovision of the act should be unconstitutional, it would not vitiate the whole act, and the bonds issued in accordance with all the other provisions become valid and binding obligations. The act for the purposes of the bond issue in question is constitutional.

We cite and approve the opinion in the case of Wharton County Drainage District No. 1 v. Higbee, 149 S. W. 381, and refer thereto for additional reasons why the act is constitutional, in that it is authorized by section 52 of aihicle 3 of the Constitution of Texas.

Appellants further contend that, if the act is not unconstitutional for the reasons given above, the defendant should be restrained from selling the unsold bonds because the act does not authorize it to assess and tax plaintiffs’ lands without first condemning their riparian rights. We are not sure of the point intended by this paragraph of the plaintiffs’ petition, but, if it is expressed by the above sentence, the answer is that to tax plaintiffs’ lands which have been incorporated within the irrigation district in the way provided by statute is in no sense a taking of their riparian rights, but in taxing the lands defendant is enabled to insure plaintiffs’ full enjoyment of their rights. If, as asserted in another part of the petition, the trustees of the district should attempt to take -water, to which plaintiffs are entitled by reason of having established water rights, and undertake to give it to lands not so entitled, then, plaintiffs would be entitled te tlieir restraining order, unless the district acquired such rights as provided by law, but such an act could in no wise affect the legality'of the bonds issued.

The order of the district judge refusing the writ is therefore affirmed.
      <&=oFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes .