Cameron Compress Co. v. Whitington

• Decision Date: 17 February 1926
• Docket Number: (No. 757-4353.)
• Citation: 280 S.W. 527
• Parties: CAMERON COMPRESS CO. v. WHITINGTON.
• Court: Texas Supreme Court

Page 527

280 S.W. 527

CAMERON COMPRESS CO. v. WHITINGTON.

(No. 757-4353.)

Commission of Appeals of Texas, Section A.

February 17, 1926.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by T. P. Whitington against the Cameron Compress Company. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (268 S. W. 216), and defendant brings error. Affirmed.

Henderson, Kidd & Henderson and Chambers, Wallace & Gillis, all of Cameron, for plaintiff in error.

J. W. Thomas, of Belton, and R. B. Pool and W. A. Morrison, both of Cameron, for defendant in error.

NICKELS, J.

Whitington delivered to the compress company 98 bales of cotton, receiving from the company, for each bale, a receipt (reproduced in extenso in the opinion of the Court of Civil Appeals, 268 S. W. 216, 217), which, in substance, declared the company had received the cotton for the purpose of "storage and compression" and that it would redeliver the cotton to the legal holder of the receipt ("or pay the market value thereof"), "loss by act of Providence or fire damage excepted (unless insured by this company)"; it being added that the "company is not a public weigher or warehouse." Whitington paid the charges prescribed by the company. The cotton was destroyed by fire, which destroyed other cotton and the compress plant in part. Whitington sued to recover the value of the cotton, predicating his claim upon the obligations evidenced by the receipts. The company answered that it was not a public warehouseman and asserted its exemption of liability for loss by fire (the cotton not having been insured) provided in the receipts. By supplemental petition, Whitington, as cause of the loss through fire, alleged negligence of the company in these respects: Manner of storage; insufficient watchmen; failure to have plant equipped with overhead automatic sprinklers; and failure to cover the cotton with tarpaulin. The company then denied the negligence charged and averred its conformity to the custom and usages of like enterprises in Texas as to the storage and handling and protection of the cotton. Over Whitington's objections the trial court permitted evidence showing, or tending to show, what the custom and usage is and the company's obedience thereto. A verdict for the company was peremptorily instructed. Upon appeal the honorable Court of Civil Appeals for the Third District reversed the judgment and remanded the case. 268 S. W. 216. Writ of error was granted to each party, and the case now presents the questions discussed below.

The receipts' words (wherein liability for loss through fire is precluded) encounter restriction in the inability of the company, as a matter of law, to exempt itself from the consequences of its negligence. The stipulation, therefore, must be considered as if it read: "Loss by fire, not caused or contributed to by the company's negligence, excepted." The contract obligated the company to redeliver the cotton "or to pay the market value thereof" upon demand, etc., unless the cotton had been destroyed by fire caused otherwise than by its negligence. The statute also imposed that duty. Articles 5619, 5633, R. S. 1925. Since the property was destroyed by fire, the controversy is to be finally solved as the presence or absence of negligence requires.

The fact that the existence of negligence will entitle Mr. Whitington to recover, and its absence will defeat him, gives rise to the main question in the case. That question is: Where negligence (in such respects as are here asserted), as an element, is the foundation of a right, may custom be set up for the purpose of showing that negligence does, or does not, exist? Counsel for the company take the affirmative, adding that, when the custom and conformity thereto have been pleaded and proved, the defense is established with conclusive effect, at least in the absence of evidence tending to show the custom itself is unreasonable. They cite Houston & T. C. Ry. Co. v. Alexander, 132 S. W. 119, 103 Tex. 594; Taylor v. White (Tex. Com. App.) 212 S. W. 656; Bering Mfg. Co. v. Sedita (Tex. Civ. App.) 216 S. W. 639; Morgan v. Stillwell (Tex. Civ. App.) 247 S. W. 581; Williams v. Gulf Co. (Tex. Civ. App.) 229 S. W. 960; Railway Co. v. Flanary (Tex. Civ. App.) 50 S. W. 726; Express Co. v. Duncan (Tex. Civ. App.) 193 S. W. 411; Thornton v. Daniel (Tex. Civ. App.) 185 S. W. 588. Counsel for Mr. Whitington deny, and say not only that a defense cannot thus be established, but that evidence of custom and conformity is wholly irrelevant. For authority, they rely upon such cases as Gulf, C. & S. F. Ry. Co. v. Evansich, 61 Tex. 3; Railway Co. v. Duncan, 32 S. W. 878, 88 Tex. 614; Railway Co. v. Smith, 28 S. W. 520, 87 Tex. 348; Morgan v. Missouri, K. & T. Ry. Co., 110 S. W. 978, 50 Tex. Civ. App. 420; Texas P. & L. Co. v. Bird (Tex. Civ. App.) 165 S. W. 8; Kirby Lbr. Co. v. Dickerson, 94 S. W. 153, 42 Tex. Civ. App. 504; Railway Co. v. Hawes (Tex. Civ. App.) 54 S. W. 326; Norwood v. Alamo Fire Ins. Co., 35 S. W. 717, 13 Tex. Civ. App. 475.

Rules to assist courts and juries in determining whether or not actionable carelessness exists under given facts cannot be stated without inclusion of the elements of comparison of conduct; at least, the writers have not yet announced rules which exclude those elements. This is illustrated in the ordinary definition of the caution which it was the duty of the company to exercise in the instance under consideration. "Ordinary care," it is said, is:

"Such care and diligence as a person of ordinary prudence and caution would commonly exercise under like circumstances." Martin et al. v. Railway, 26 S. W. 1052, 87 Tex. 117.

The "ordinarily prudent person" is not the perfect automaton or the dolt; he is the general average of mankind, and his identity cannot be established without taking into account the strength and frailties and the practices of all other men. Nor can the particular act which he would do, or the thing which he would omit to do, under given circumstances, be estimated, save upon a consideration of what other like men, similarly conditioned, have done and are doing. There is, therefore, a logical relation between custom and the conduct of any man having to do with the subject-matter of the relevant usage on any occasion. Nevertheless, recognition of this logical extreme is wholly impracticable in the trial of cases, for collateral issues would appear in such number and nature as to becloud the main question and retard its solution. But entire repudiation of the relation would present the illogical extreme and result in the paradox of holding men to a standard of conduct predicated upon comparison with other men and, at the same time, denying them the use of that practical comparison as evidence tending to demonstrate conformity to the standard. Except in respect to such customs and usages as (through age and universality of acceptance) may have become substantive law, we do not believe any well-considered case can be found to support either extreme. Writing on the subject, found in text-books and reports, exhibits, at once, a general effort to find the appropriate medium and an irreconcilable conflict of ideas about it. The lack of harmony is due, we believe, to failure to keep in mind the distinction between the use of such facts as mere evidence and their use in establishing a standard of conduct as a matter of substantive law. 1 Wigmore on Evidence (2d Ed.) § 461.

Where the negligence averred (as here) is in respect to equipment, etc., or lack of certain appliances, or methods of handling goods, or manner of construction of a plant, the conduct of others (amounting to a custom) naturally evidences the tendency of the thing in question; e. g., if a man operating, or about to operate, a powder plant, observed the workmen in other powder factories "wearing felt shoes, he might infer that tendency of the powder was to explode from the concussion or friction of ordinary shoes, and that felt shoes were necessary with reference to obviating this tendency." Wigmore, Id. Such conduct of others in the same business — i. e., under similar circumstances, in respect to the methods and facilities employed — is provable along with other facts showing the "tendency of the thing as dangerous, defective, or the reverse." But it is evidence, and not more (except in rare instances), and the jury is at liberty (if there be evidence of contrary import) to find negligence despite the proof of custom. That function remains in the jury because the substantive law has prescribed the standard of conduct whereby existence, or absence of negligence must be determined, and that standard remains unchanged by proof of the conduct of others similarly situated. Yet, while the standard of conduct remains fixed, and (as fixed) determinative of the question of liability, the evidence of the relevant customary practices of others is admissible because it throws some light on the nature of the thing in question; i. e., "it indicates what is the influence of the thing on the ordinary person in that situation." Wigmore, Id. When the essential predicate has been laid, the proof ought to be received as evidence; but, once admitted, it should not be allowed to fix the "rule of conduct by which the jury are to be limited and governed." Maynard v. Buck, 100 Mass. 40. Despite expressions of some apparent...