Exporters' & Traders' Compress & Warehouse Co. v. Schulze

• Decision Date: 15 October 1924
• Docket Number: (No. 573-4036.)
• Citation: 265 S.W. 133
• Parties: EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SCHULZE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

265 S.W. 133

EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SCHULZE.^*

(No. 573-4036.)

Commission of Appeals of Texas, Section A.

October 15, 1924.

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

Action by Gus Schulze against the Exporters' & Traders' Compress & Warehouse Company. From a judgment of the Court of Civil Appeals (253 S. W. 702), affirming a judgment for plaintiff, defendant brings error. Reversed and rendered.

Spivey, Bartlett & Carter, of Marlin, and Sleeper, Boynton & Kendall, of Waco, for plaintiff in error.

Sam R. Scott, of Waco, and Frank Oltorf, of Marlin, for defendant in error.

CHAPMAN, J.

Prior to November 18, 1920, defendant in error, Gus Schulze, had delivered to plaintiff in error, hereafter called warehouse company, 19 bales of cotton for storage. Upon receipt of each bale of cotton the warehouse company delivered to Schulze a receipt, in which it agreed to redeliver the cotton to the legal holder of the receipt, or pay market value therefor, acts of Providence or fire damage excepted. November 18, 1920, while the cotton was in the warehouse it was totally destroyed by fire. Schulze brought suit against the warehouse company for the value of the cotton and alleged the failure of the warehouse company to make redelivery of the cotton upon the presentation of the receipt, but made no allegations as to negligence on the part of the warehouse company. The warehouse company answered by pleading that the cotton was destroyed by fire, and that it was therefore not liable. Plaintiff, by supplemental petition, made this plea:

"For further reply to said answer, plaintiff would show to the court that, if said cotton was held by the defendant under and by virtue of a contract, in and by which it was agreed by and between the parties that defendant would not be liable for the redelivery of said cotton, nor to pay the value thereof in event said cotton should be destroyed by fire, then this plaintiff shows to the court that said portion of said contract is void and nonenforceable as against this plaintiff, and does not protect the defendant against liability for the loss of said cotton and constitutes no defense, in the event said loss by fire is the result of the negligence of the defendant or any of its agents, servants, or employees."

The jury, on special issues, found that the warehouse company did not exercise ordinary care to provide and maintain protection for the cotton against fire and that the failure of the warehouse company to exercise such care was the proximate cause of the destruction of the cotton by tire. It does not become necessary for us to determine whether the part of the supplemental petition of Schulze above set out was a sufficient allegation as to negligence on the part of the warehouse company, for the reason that there is no evidence upon which to base a finding that the fire was the proximate result of the negligence of the warehouse company. There is no evidence whatever as to the origin of the fire and none to the effect that it could, under any circumstances, have been extinguished by the employees of the warehouse company after it was discovered, and there is no evidence that the warehouse company failed to keep watchmen in the warehouse. Negligence is a positive matter, and, before it can be imputed to a party to a suit, facts must be proved showing negligence, or circumstances must be shown from which negligence may be reasonably inferred, and that such negligence was the proximate cause of the injury complained of. It is possible that there are sufficient facts in this case upon which it may be inferred that the warehouse company did not use ordinary care in the manner in which it kept its premises, but there is no evidence upon which to base a finding that the fire in question in this case was the proximate result of such cause.

The plaintiff in the trial court having failed to show that the fire was the result of negligence on the part of defendant, then the question arises as to whether the failure of the warehouse company to redeliver the cotton upon demand raises a presumption of negligence on the part of the warehouse company, and, if so, is this presumption overcome by the warehouse company's alleging and proving that the cotton was destroyed by fire?

The Court of Civil Appeals of the Third District, 253 S. W. 702, held that the failure of the warehouse company to redeliver the cotton upon demand was prima facie proof of negligence on its part, and that the proof that the cotton was destroyed by fire did not relieve the warehouse company of the presumption of negligence, but that it was incumbent on the warehouse company to go further and show that the fire was not the result of any act of negligence on its part. This holding of the Court of Civil Appeals is in direct conflict with the holding of other Courts of Civil Appeals, namely: Staley v. Colony Union Gin Co., by the Amarillo Court, 163 S. W. 381; Thornton et ux. v. Daniel et al., by the El Paso Court, 185 S. W. 585; American Express Co. v. Duncan, by the Fort Worth Court, 193 S. W. 411.

Plainly stated, this presents the question whether, after it was shown that the cotton was destroyed by fire, the burden of proof was on the warehouse company to show that the fire was not the result of its negligence, or was on the plaintiff to show that the fire was the result of the negligence of the warehouse company. This question is discussed in 6 Corpus Juris, p. 1160, in these words:

"The burden of proof of showing negligence is on the bailor and remains on him throughout the trial. The presumption arising from injury to the goods or failure to redeliver is sufficient to satisfy this burden and make out a prima facie case against the bailee; but the bailee may overcome...