Chevallier v. Straham

Citation2 Tex. 115
Decision Date31 December 1847
CourtSupreme Court of Texas

Appeal from Nacogdoches County.

S. & S., whose principal business was that of farming, but who, a part of the time, and during the season for hauling, occasionally run their wagon, for hire, received certain bales of cotton which they undertook to haul to Nacogdoches. On the road some of the ropes broke, and the bales partially burst open. On the night the cotton was destroyed, the wagon was placed within fifteen feet of the camp fire, which was renewed at midnight, at which time no wind was blowing. The cotton was discovered to be on fire about daybreak and burning furiously. The wind had then arisen, and was blowing the camp fire towards the cotton. This was in December. Held, that they were liable for the loss as common carriers. [10 Tex. 344;14 Tex. 290;17 Tex. 227;18 Tex. 498.]

All persons who transport goods from place to place, for hire, for such persons as see fit to employ them, whether usually or occasionally, whether as a principal or an incidental and subordinate occupation, are common carriers, and incur all their responsibilities.

This was a suit brought by the appellant against the appellees, upon an alleged liability incurred by them as partners in the business and trade of common carriers.

The material facts are stated in the opinion of the court.

Taylor and I. R. Lewis, for appellant.

Rusk and Henderson, for appellees.

No briefs furnished the reporters.

Mr. Chief Justice HEMPHILL delivered the opinion of the court.

The petition charges that the defendants, being partners in the business and trade of common carriers, for hire, from the town of Nacogdoches in Texas, to the town of Nachitoches in the state of Louisiana, received in that capacity, from the plaintiff, six bales of cotton, which they undertook to convey to Nachitoches for a reasonable reward, but failed to do so, and the cotton was wholly lost to the petitioner. There were three trials in the court below; in the first of which the jury could not agree on a verdict, and in the two latter found for the defendant.

We are are not informed by the record of the instructions given by the judge to the jury, nor are exceptions taken to the opinion of the court. The facts are, however, agreed upon, and from these we ascertain that the defendants owned and run a wagon to haul cotton to and goods from Nacogdoches; that their principal business was farming, but a part of the time, and during the season for hauling, they run their wagon when they occasionally could get a chance;” that the cotton was received in good order; and that on the road some of the ropes broke, and the bales partially bursted open. On the night the cotton was destroyed, the wagon was placed within fifteen feet of the camp fire; the fire was renewed at midnight, but neither at that time, nor when the teamsters first lay down, was there any wind; about the break of day the cotton was discovered to be on fire and burning furiously. The wind had then arisen and was blowing the camp fire towards the cotton; this occurred in the month of December.

The appellees contend: 1st. That they are not chargeable as common carriers; that they are bailees or carriers for hire in the particular case, and not having expressly assumed the risk of common carriers, they are liable only for losses occasioned by ordinary negligence; and

2d. That if regarded as common carriers, they insist that the destruction of the cotton was occasioned by an act of God, and that therefore they are not responsible for the loss.

The question, whether persons who pursue the business of transporting goods for hire as only an occasional, and not as a principal occupation, are to be regarded as common carriers, and subject to their obligations and responsibilities, is one which, from the extensive interests involved, and the number of persons so engaged, is of great importance to the community.

The solution of this question is not unattended with some difficulty, as some of the most important authorities on one of the particular points to be decided are not accessible to the court.

Recurring to adjudicated cases and to works of established authority, to ascertain who are to be regarded as common carriers, we find them defined by Chancellor Kent in his Commentaries, vol. 2, p. 598, to be such persons “as undertake generally, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, and with or without agreement as to price.”

Mr. Justice Story, in his treatise on Bailments, p. 322, lays down that “to bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation, pro hac vice.

He then proceeds: “A common carrier has therefore been defined to be one who undertakes for hire, or reward, to transport the goods of such as choose to employ him, from place to place.” This definition is the one substantially given in the notes to 2 Black. Com. p. 451; and in the notes to the case of Coggs v. Bernard of the English and American editors of Smith's L. C. p. 82; on this subject see 1 Bay, 97;2 Bailey, 421;2 Rich. 286;2 Dana, p. 431;7 Yerg. 340. In all these the definition of common carriers, by both land and water transportation, accords in substance with those above quoted in full from the elementary works of Judges Kent and Story. In the notes of the American editors of Smith's L. C. p. 178, the subject is said to have been examined in the case of Gordon v. Hutchinson, 1 Watts & Serg. p. 285; and the rule deduced is, that “a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment.”

This rule is decisive of the precise question in this controversy, and it is, therefore, the more to be regretted that the volume of reports is not within the reach of the court, that we might ascertain, beyond all doubt, how far the facts of that case were analogous to those now under consideration.

In McClure v. Richardson, Rice (S. C.) p. 215, the facts are somewhat similar to those presented in this record. The syllabus of the reporter shows that the defendant was owner of a boat, in which he was accustomed to carry his own cotton to Charleston, and occasionally, when he had not a load of his own, to take for his neighbors, they paying freight for the same. The general habit was for those who wished to send cotton by defendant's boat to apply to the defendant himself. On this occasion the patroon of the boat had been told to take Col. Goodwin's and Mr. Dallas' cotton, which he had done, when the plaintiff applied to the patroon, in the absence of the defendant, to take on board ten bales of cotton, asking him if it was necessary to apply to the defendant himself, to which the patroon replied, he thought not, and received the cotton: Held, that under the circumstances the defendant was bound by the act of the patroon, as being within the general scope of the authority conferred upon him by placing him in the situation of master of the boat; and that the defendant was consequently chargeable as a common carrier for any loss or damage to the plaintiff's cotton.

In the above case the defendant was not usually, but only occasionally, employed in carrying goods for the community; but this did not shield him from responsibility under the rule rendering common carriers liable for the acts of their servants and other persons in their employment. Story on Bailments, p. 327; 8 Term, p. 531; 5 Id. 397.

It appears from the foregoing authorities, that the distinctive characteristic of a common carrier is, that he transports goods for hire for the public generally, and that it is immaterial whether this is his usual or occasional occupation, his principal or subordinate pursuit.

The defendants having contended that they are only bailees for hire in the particular case, and incur only their responsibilities, let us examine the authorities as to private carriers, to ascertain whether this position can be maintained.

We have seen that carrying goods for hire for the public generally, and pursuing it as a principal or incidental occupation, will render a person a common carrier; but it is not the mere undertaking to carry goods for hire that will involve a person in all the risks of the public carrier. In the treatise on Bailments, p. 322, by Mr. Justice Story, we find that “a private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of an ordinary bailee for hire; that is to say, the responsibility of ordinary diligence.” In support of this rule he refers to various reported cases, none of which have I been able to procure, except those reported in Bosanquet and Puller, and in Wendell's New York Reports.

The facts in these cases, it will be found, bear no analogy to those presented in this appeal. In Robinson v. Dunmore, 2 Bos. & Pull. p. 417, the defendant was not charged as a common carrier, but on a special undertaking, and the principal question was whether he had possession of the goods when they were damaged. Chambre, justice, in his opinion says the defendant is not a common carrier by trade, but has put himself into the situation of one by his particular warranty. It does not appear from the case that the defendant was ever, on any other occasion, employed to transport goods to the country.

In Saterlee et al. v. Groat, 1 Wend. 272, the facts were that the defendant had been a common carrier previous to 1819; that he then sold out all his teams but one, which he kept for agricultural purposes on his farm. One witness, however, testified that defendant employed his team in the carrying business, as...

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