Chevaillier's Adm'r v. Another

• Decision Date: 01 January 1853
• Citation: 10 Tex. 344
• Parties: CHEVAILLIER'S ADM'R v. PATTON AND ANOTHER.
• Court: Texas Supreme Court

10 Tex. 344

CHEVAILLIER'S ADM'R

v.PATTON AND ANOTHER.

Supreme Court of Texas.

1853.

Where a common carrier being sued upon a bill of lading for failure to deliver in like good order, &c., pleaded a custom to carry goods in open vehicles, of which the plaintiff had notice, and that the only damage sustained by the freight (cotton) was caused by rains which fell upon it during the transportation: Held, That the plea was good. (Note 65.)

Appeal from San Augustine. Suit by the appellant on bills of lading for one hundred and fifty-five bales of cotton from Pattonia to Sabine Pass. It was alleged that the cotton was not delivered in good condition as stipulated, but was badly damaged, and the damages were laid at two hundred dollars. The defendants answered that it was the custom of common carriers to carry goods in open and uncovered boats and vehicles, which were exposed to the inclemency of the weather, and that such custom was known to plaintiff, and that he consented that the cotton shipped should be transported in such uncovered boats, and that the cotton suffered no damage except what resulted from rains that fell upon it during its transportation. A demurrer to the answer was overruled. Verdict and judgment for the defendants.

J. M. Ardrey, for appellant. In the case of Chevaillier v. Straham, 2 Tex. R., 124, the responsibilities of a common carrier are accurately defined. It is there said that he is an insurer against all losses not embraced in the excepted cases, and that the only exceptions to his liability are the acts of God, the enemies of the country, and of the party complaining. No force however great, no accident however inevitable, no fraud however beyond his control, will excuse him. However, it was attempted to be shown that it was the custom of common carriers to carry goods in open and uncovered boats and vehicles, and that the storms of rain which were proved to have fallen and been the cause of the damage directly, for the purpose of constituting an exception to that liability, either upon the principle that the custom created an implied contract between the parties by which they limited their liability or that the rain storms proved to have happened and producing the damage, fell within the exception that storms, lightnings, and tempests are such acts as could not happen by the intervention of man, and was therefore the act of God.

The contract of the party was that he would deliver the cotton in the same good order and condition in which he had received it, “the dangers of the river only excepted.” In Johnson v. Friar, 4 Yerger R., 51, these words in a bill of lading mean such dangers as that no human skill or foresight could have guarded against.

The owner of a vessel employed in the transportation of freight, as a common carrier is answerable for the defects on the vessel or its equipment, and generally he is answerable for all losses other than what arise from the excepted cases, of the act of God, or public enemies, or by his express contract. (3 Kent Com., p. 205.) The liability of a common carrier cannot be restrained by the publication of notice or by an usage or particular custom. (Story on Bailments, sec. --, p. --.) Then, the usage or custom pleaded, by which the defendants attempt to excuse themselves from liability for the defective equipment of their vessel, by which the cargo is exposed to rain, by which it becomes damaged, does...