Bean v. Hinson

• Decision Date: 25 November 1921
• Docket Number: (No. 725.)
• Citation: 235 S.W. 327
• Parties: BEAN v. HINSON.
• Court: Texas Court of Appeals

235 S.W. 327

BEAN v. HINSON.

(No. 725.)

Court of Civil Appeals of Texas. Beaumont.

November 25, 1921.

Appeal from Jasper County Court; Herbert Hargrove, Judge.

Action by J. W. Hinson against I. S. Bean. From judgment for plaintiff, defendant appeals. Affirmed.

C. B. Neel and Roi Blake, both of Jasper, for appellant.

Smith & Lanier, of Jasper, for appellee.

O'QUINN, J.

J. W. Hinson sued I. S. Bean in the county court of Jasper county, Tex., for the value of two mules which were drowned while being ferried across the Angelina river at Bean's ferry on April 6, 1920. The case was tried before the court without a jury and resulted in a judgment in favor of plaintiff in the sum of $300. Defendant made motion for a new trial, which being overruled, he appeals.

The undisputed evidence shows that on April 6, 1920, defendant Bean was the owner and operator of a ferryboat across the Angelina river for hire; that he had a Mr. Bohler employed as ferryman and that occasionally one Lee Williams who was Bohler's son-in-law assisted in operating said ferryboat but that this was without the knowledge and consent of Bean and in fact over his protest; that on said April 6, 1920 Bohler left the ferry to go to Bean's home, leaving Williams at the ferry, with instructions to ferry Dr. Richardson across, but with no instructions to cross any one else; that while Bohler was gone, plaintiff, Hinson, came, and Williams undertook to cross him and his son and two wagons and two pairs of mules attached to said wagons; that after the wagons and mules were placed on the boat Williams commenced to push the boat from the shore when from some unknown cause the mules to the front wagon backed their wagon, causing the mules to the rear wagon to back the hind wheels of the rear wagon off of the boat into water deep enough to come up nearly to the hub of the wheels; that plaintiff told Williams that he (Hinson) would make the mules pull the wagon back on the boat; that Williams told plaintiff to wait and let him tie the boat to the bank, which he testified he could have done, the boat being only a few feet from the bank, but plaintiff said "No"; that he would make the mules pull the wagon back on the boat; that plaintiff took the lines and tried to make the mules pull the wagon back on the boat, and that the mules did try to pull it back, but failed; that while the mules were pulling they were surging backwards and forwards, and the boat was floating further out into the river, and finally the wagon pulled the mules off of the boat into the river, and they were finally drowned; that the ferryboat did not have any chains, bumpers, end gates, or other obstructions at the end of the boat to prevent animals or vehicles from falling or being thrown into the water; that it was customary for ferryboats on the Angelina and Neches rivers to be operated without end gates, bumpers, chains, etc.

Appellant's first assignment of error is:

"The court erred in his first conclusion of law that `I conclude as a matter of law that Lee Williams was the agent of the defendant, I. S. Bean,' because said conclusion of law was contrary to the evidence."

His second assignment is:

"The court erred in this third conclusion of law that `I conclude as a matter of law that the defendant was liable for said damages by reason of the negligent operation of said ferry,' because said conclusion of law was contrary to the evidence."

These assignments cannot be considered. They are too general and do not comply with the rules. Rules 23, 24, 25, 26, and 27 for Courts of Civil Appeals (142 S. W. xii); Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Bonner v. Whitcomb, 80 Tex. 178, 15 S. W. 899; Cain v. State, 47 Tex. Civ. App. 382, 106 S. W. 770; Goodwin v. Burton, 54 Tex. Civ. App. 586, 118 S. W. 587. Under the Texas appellate practice the higher courts have uniformly refused to enter into the investigation of testimony upon an assignment of error which goes no further than to state that the verdict or judgment or matter complained of is not supported by the evidence. The assignment should state in what respect the evidence does not support the verdict or finding—the particulars in which the evidence is insufficient—and not require the court to examine the whole statement of facts to see if it cannot discover some defect or weakness which the party complaining has not pointed out or called specifically to the court's attention. Randall v. Carlisle, 59 Tex. 69; Railway v. McNamara, 59 Tex. 255; Ackerman v. Huff, 71 Tex. 319, 9 S. W. 236; Smith v. Jones, 192 S. W. 799.

The third assignment is.

"The court erred in his second conclusion of law that `I conclude as a matter of law that the defendant was liable as a common carrier for hire, and an insurer of goods,' because said issue was not raised by plaintiff's pleadings and is unsupported by the evidence."

This assignment raises two propositions: (1) That there is no basis for such finding in plaintiff's petition; and (2) that the finding is without evidence to support it. Under this assignment, appellant submits the proposition that no issue can be decided in any case that is not raised by the pleadings. That is true, but, unfortunately for appellant, in the very first paragraph of plaintiff's petition defendant is charged with being the owner of and operating a ferry across the Angelina river for hire, and as such was a common carrier for hire, and the evidence also raised the issue.

Appellant's second proposition under the third assignment is:

"A ferryman is not liable as a common carrier for hire when the care, control, and management of the property is retained by the owner."

While this proposition is hardly germane to the assignment, we will consider same, as it is tantamount to suggesting fundamental error.

Public ferrymen are common carriers, and as such are liable as insurers of the property committed to their care and for all accidents, except such as arise from the act of God or the public enemy, or by the willful act of the complaining party, and, of course, are answerable in damages for any injury or loss that results from their negligence. 11 R. C. L. § 24, p. 931; Hutchinson on Carriers (3d Ed.) vol. 1, §§ 66, 67; 12 Am. & Eng. Enc. of Law (2d Ed.) 1109; 19 Cyc. 508; Fisher v. Clisbee, 12 Ill. 344; Lewis v. Smith, 107 Mass. 334; Albright v. Penn, 14 Tex. 290; Powell v. Mills, 37 Miss. 691; Wilson v. Hamilton, 4 Ohio St. 723; May v. Hanson, 5 Cal. 360, 63 Am. Dec. 135; Pomeroy v. Donaldson, 5 Mo. 36; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; Hall v. Renfro, 3 Metc. (Ky.) 57; Evans v. Rudy, 34 Ark. 383; Harvey v. Rose, 26 Ark. 7, 8, 7 Am. Rep. 595.

Ferrymen are bound to provide proper boats, with competent attendants, and equip them with all other things necessary and proper for the maintenance of the ferry in an efficient state and safe condition. 12 Am. & Eng. Enc. of Law (2d Ed.) 1107; 19 Cyc. 509-511; Albright v. Penn, 14 Tex. 290; Sturgis v. Kountz, 165 Pa. 358, 30 Atl. 976, 27 L. R. A. 390; Wyckoff v. Queens County Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650; Lewis v. Smith, 107 Mass. 334; Wilson v. Hamilton, 4 Ohio St. 723; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; Yerkes v. Sabin, 97 Ind. 141, 49 Am. Rep. 434; Griffith v. Cave, 22 Cal. 534, 83 Am. Dec. 82; May v. Hanson, 5 Cal. 360, 63 Am. Dec. 135.

While the authorities uniformly hold that a public ferryman who holds himself out as being ready and willing to carry or transport for hire the property of any one who may wish to employ him is, as to the property in his custody, a common carrier, the courts have differed in their views as to the extent of the liability assumed in those cases where the owner of the property accompanies it and continues to retain it under his control. On the one hand, it is held that as soon as the property is placed on the boat for the purpose of being transported it is in the custody of the ferryman as a common carrier, and that the fact that the owner retains the property under his control merely places him in the position of an agent of the ferryman. 19 Cyc. 509; Fisher v. Clisbee, 12 Ill. 344; Powell v. Mills, 37 Miss. 691; Wilson v. Hamilton, 4 Ohio St. 723. On the other hand, it is said that such a rule rests upon no just principle, and that in such cases the ferryman does not assume toward the property the strict responsibility of a common carrier, and is not within the reasons of public policy upon which the extreme liability of a common carrier rests. 11 R. C. L. "Ferries," § 28; Hutchinson on Carriers, vol. 1, § 128; 19 Cyc. 509; Wyckoff v. Ferry, Co., 52 N. Y. 32, 11 Am. Rep. 650; White v. Winnissimmet, 7 Cush. (Mass.) 155; Evans v. Rudy, 34 Ark. 383.

The latter rule would seem to be more in accord with the principles which govern the carrier's common-law liability. In order to impose upon one who undertakes the transportation of property the stringent responsibility of a common carrier, it is essential that he have exclusive control of the property. When this essential element is lacking, when the owner himself retains control of the property, the liability of the ferryman as a common carrier should be qualified, and, when the property is lost or injured, his liability should be governed by the ordinary rules in actions for negligence. Hutchinson on Carriers, vol. 1, §§ 67, 128. This because, when the owner of the property retains its custody and keeps it under his own control, there has not been such a delivery as is necessary to subject the ferryman to the rigorous liability of an insurer, and he should be considered in such cases as undertaking its safety only against defects in his boat and other appliances for the performance of the service and for the neglect or want of skill of himself or his servants. 11 R. C. L. § 28; 19 Cyc. 509; Wyckoff v. Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650; White v. Winnissimmet, 7 Cush. (Mass.) 155; Hutchinson on Carriers, vol. 1, § 128.

Defendant contends that plai...