It is concluded that the trial court erred in sustaining the demurrer to the appellant's defense of alleged failure to comply with the stipulation providing for notice of claim for damages. The statute does not make invalid and void a stipulation in a contract requiring notice, as of the kind here, of claim for damages, if such stipulation is reasonable. Article 5714, Vernon's Sayles' Stat. The case of *Page 241 Taber v. Western Union Telegraph Co., 104 Tex. 272, 137 S.W. 106, 34 IP R A. (N.S.) 185, had a stipulation requiring the claim to be "presented in writing within ninety days after the message is filed with the company for transmission." The Supreme Court determined that the particular stipulation was invalid and contrary to the terms of the statute because it provided for notice to be given "within 90 days after the message was filed with the company for transmission." "The purpose of the act," as ruled by the court, "was to fix a minimum period of 90 days from the time the cause of action arose." And in Smith v. Railway Co., 138 S.W. 1075, the stipulation there was held invalid because notice was required to be given before the expiration of full 90 days. In Railway Co. v. Marcofich,185 S.W. 51, though, the stipulation provided for notice to be given within 91 days after the cause of action arose, and was not contrary to the terms of the statute. The stipulation was there held valid and binding, if reasonable in point of fact. See Turner v. Henderson,183 S.W. 51. And even if the company's liability is to be fixed as interstate, assuming such only for the moment, the stipulation may be sustained, if reasonable. Railway Co. v. Bracht, 172 S.W. 1116, citing authorities.
The appellant also predicated error upon the refusal of the court to submit the charge asking a verdict for the defendant upon the finding that the stipulation was, under the circumstances of the case, a reasonable one. There is evidence that the provision is reasonable, and it is undisputed that no claim in writing was ever presented by appellee, and the suit was not filed until March 22, 1917. There is no pleading of nor any evidence even tending to show a waiver of the stipulation. There is error showing injury and requiring a reversal of the judgment.
It is not deemed necessary to pass upon the other assignments of error.
Judgment reversed, and the cause remanded.
On Rehearing. The appellant insists that this court, Instead of remanding the cause, should render judgment in its favor because the undisputed evidence shows that the stipulation as to giving notice of claim of damages is reasonable. Article 5714, referred to, really means that a stipulation in any contract requiring notice to be given of a claim for damages within a certain time shall not be valid and enforceable as a condition precedent to the right to sue where the time stipulated for the giving of the notice is unreasonably short, and that a less period of time than 90 days within which to give the notice should be, as a matter of law, an unreasonably short time for the performance of the stipulation. And what is a reasonable time is a question of law for the court when, in some particular case, the facts are undisputed and the inferences certain. This court, though, may not render a judgment in this record, because the pleading setting up the defense was stricken out by the trial court on demurrer, and, being stricken out, was not legally thereafter a part of the record or a defense. And after the pleading was stricken out the plaintiff was not legally called upon nor required to offer any evidence respecting such defense. For the statute provides that, "unless the want of notice is especially pleaded under oath," then "it shall be presumed that notice was given." And after the pleading was stricken from the record there was no pleading under oath, as required, and the trial court was bound to give force to the statute. And this court may only render the judgment the trial court could render. Mitchum v. Railway Co.,107 Tex. 34, 173 S.W. 878. The province of this court is to hold, as we do, that the trial court erred in striking the pleading from the record; and the effect of such ruling is to require the trial court to reinstate and restore the pleading, which is required to form the legal foundation of the proof to be submitted on the trial.
Motion overruled.