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

• Court: Texas Court of Appeals
• Writing for the Court: Gallagher
• Citation: Exporters' & Traders' Compress & Warehouse Co. v. Shaw, 20 S.W.2d 248 (Tex. App. 1929)
• Decision Date: 20 June 1929
• Docket Number: (No. 796.)
• Parties: EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SHAW.

20 S.W.2d 248

EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SHAW.

(No. 796.)

Court of Civil Appeals of Texas. Waco.

June 20, 1929.

Rehearing Denied October 3, 1929.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Suit by D. R. Shaw against the Exporters' & Traders' Compress & Warehouse Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W. Spivey, of Waco, and Bartlett & Carter, of Marlin, for appellant.

Frank Oltorf and Ben Rice, Jr., both of Marlin, for appellee.

GALLAGHER, C. J.

Appellee, D. R. Shaw, sued appellant, Exporters' & Traders' Compress & Warehouse Company, to recover the value of nine bales of cotton in the sum of $900, with interest from December 1, 1920. This is a companion case to Exporters' &amp Traders' Compress & Warehouse Co. v. Hemphill (Tex. Civ. App.) 292 S. W. 599. The pleadings and evidence are substantially the same in both cases. Appellee alleged, in substance, that appellant theretofore had been engaged in compressing cotton; that, in addition to receiving cotton to be compressed, it also received and stored cotton for hire; that it thereby assumed the duties, responsibilities, and liabilities of a warehouseman; that when appellant received said cotton it issued receipts therefor, stating that the same was received for storage and compression, and binding it to redeliver the same to the legal holder of such receipts, or to pay the market value thereof. Appellant in its answer alleged that, if said cotton was received by it, same was received under an express agreement that it was not liable therefor if the same was destroyed by fire, and that the same was so destroyed. Appellee replied thereto by alleging that appellant was negligent in some 16 specific matters with reference to the safe-keeping of said cotton, and that each of the acts of negligence so charged was the proximate cause of the destruction thereof. Appellee further alleged that the stipulation exempting appellant from liability in case of destruction of said cotton by fire was, because of such negligence, void and unenforceable, and constituted no defense to the demands asserted by him in this suit.

The case was submitted to a jury on special issues, in response to which the jury found, in substance, that:

(a) Appellant did not use ordinary care in supplying water hose of sufficient length to reach the place on its platform where the fire originated, and such failure proximately caused the destruction of appellee's cotton.

(b) Appellant did not use ordinary care in supplying its platform with hose of sound material, and such failure proximately caused the destruction of appellee's cotton.

(c) Appellant did not require its night watchman to encircle all the cotton on its platform on his regular trips of inspection. Appellant, in failing to so require, failed to exercise ordinary care, and such failure proximately caused the destruction of appellee's cotton.

(d) Appellant did not exercise ordinary care in providing for observation, inspection, and examination of the cotton situated on the extended portion of its platform, with a view of protecting the same from fire, and its failure to do so proximately caused the destruction of appellee's cotton.

(e) Appellant's night watchman, after he discovered the fire which destroyed said cotton, did not exercise ordinary care in using the means and facilities at hand furnished him by appellant in attempting to extinguish such fire, and such failure proximately caused the destruction of appellee's cotton.

(f) Appellee's cotton weighed 5,000 pounds, and the reasonable value thereof at the time it was destroyed was 16.35 cents per pound.

The court rendered judgment on the verdict in favor of appellee against appellant for the value of his cotton as found by the jury, with interest thereon, amounting in the aggregate to $1,174.18, from which judgment this appeal is prosecuted.

Opinion.

Appellant's first group of propositions complains of the action of the court in overruling exceptions to appellee's petition. Appellant insists that its general demurrer should have been sustained. The specific contention in this connection is that the allegations of appellee's petition were insufficient to show that the several acts of negligence charged were the proximate cause of the destruction of his cotton. Appellee's allegations of causal connection between the short and defective hose and the destruction of his cotton were sufficient. His allegations of such connection between the failure of appellant's watchman to use the means at hand for extinguishing the fire after discovery by him and the destruction of his cotton were also ample. Since the findings of the jury on these three issues furnish abundant support for the judgment rendered, appellant's general demurrer was properly overruled.

Appellant presented one or more special exceptions to appellee's allegations concerning each specific act of negligence charged. All of said exceptions were overruled. Our Supreme Court has held that, under rule 62a, a party complaining of the overruling of his special exceptions to the pleadings of his adversary must show that he was prejudiced by such action. Golden v. Odiorne, 112 Tex. 544, 550, 249 S. W. 822, 824, 825. The following additional authorities so hold: Reisenberg v. Hankins (Tex. Civ. App.) 258 S. W. 904, 911, par. 13; McDaniel v. Turner (Tex. Civ. App.) 269 S. W. 496, 497, par. 3; Alsup v. Hawkeye Securities Fire Ins. Co. (Tex. Civ. App.) 300 S. W. 223, 224, par. 1; Bailey v. Giant Tire & Rubber Co. (Tex. Civ. App.) 3 S.W.(2d) 501, 502, par. 1; City of Waco v. Roberts (Tex. Civ. App.) 12 S.W.(2d) 263, 264, par. 2. Appellant, apparently in recognition of such rule, asserts that the reading of said allegations to the jury and the introduction of evidence thereon was necessarily prejudicial. We have examined all the several allegations of negligence not submitted to the jury as hereinbefore recited. None of them were in any way inflammatory. They were all pertinent to the cause of action relied upon by appellee.

We do not think the mere reading to the jury of such allegations can be held cause for reversal, notwithstanding no evidence was offered in support of one or more of them, and notwithstanding the evidence introduced in support of some of them was insufficient to require the submission to the jury of any issue thereon. Appellee introduced testimony tending to sustain several of said charges of negligence. Appellant contends that the introduction of such testimony rendered the action of the court in overruling its special exceptions to such allegations prejudicial to it. All such testimony was introduced over the objection of appellant, and its relevancy will be discussed in connection with appellant's propositions complaining of the introduction thereof. Appellant's specific contention in this connection is an alleged lack of causal connection between such acts of negligence and the destruction of appellee's cotton. All, or nearly all, of such testimony was pertinent to one or more of the issues of negligence submitted to the jury for determination. Such being the case, appellant cannot rely thereon to show prejudice resulting from the action of the court in overruling such special exceptions.

Appellant presents a group of propositions complaining of the introduction over its objection of the testimony above referred to. The most material of such testimony was to the effect that the bucket and barrel system installed on appellant's platform for extinguishing fires was inadequate, and not properly maintained; that bales of cotton were opened and reconditioned on the platform, and loose cotton therefrom permitted to be scattered all over the same, and that trash was permitted to accumulate on, around, and under such platform. Appellee in his petition alleged the existence of all these facts, and further alleged that appellant was negligent in permitting them to exist. All the testimony complained of was admissible under some specific allegation of negligence contained in the petition. If appellee, as contended by appellant, failed to introduce evidence tending to show that each of said several acts, if negligent, was a proximate cause of the destruction by said fire of appellant's platform, including appellee's cotton thereon stored, appellant failed to move the court to exclude the testimony concerning such acts from the consideration of the jury when the evidence closed and such failure became manifest.

We are of the opinion, however, that practically all this testimony was admissible to aid the jury in determining whether appellant was negligent in failing to supply a sufficient quantity of sound and usable hose. The existence of the several matters so testified about, with the exception of the insufficiency of the bucket and barrel system, necessarily increased the fire hazard. The jury would have been justified in considering such increase of fire hazard in determining whether appellant was negligent in not providing and maintaining a reasonably effective hose system for extinguishing in its incipiency any fire which might originate on the premises. If the bucket and barrel system provided by appellant was inadequate and not properly maintained, the jury would also have been justified in considering this fact in passing upon the question of whether appellant was negligent in furnishing and maintaining its hose system. We do not think the trial court erred in admitting said testimony.

Appellant presents a group of propositions complaining of the action of the court in admitting over its objection certain testimony of the witness Percy M. Marshall. This witness testified that he was a special agent for an insurance company which carried policies on some of the property destroyed in said fire; that he had been engaged in such capacity since 1912; that it was the duty of a special agent to supervise agencies, to make reports on...