Farmers Gin Co. v. Texas Elec. Ry. Co.

• Decision Date: 20 July 1950
• Docket Number: No. 2918,2918
• Citation: 232 S.W.2d 890
• Parties: FARMERS GIN CO. v. TEXAS ELECTRIC RY. CO.
• Court: Texas Court of Appeals

Page 890

232 S.W.2d 890

FARMERS GIN CO. v. TEXAS ELECTRIC RY. CO.

No. 2918.

Court of Civil Appeals of Texas, Waco.

July 20, 1950.

Rehearing Denied Oct. 11, 1950.

Rice, Waitz & Rice, San Antonio, George E. Kacir, West, for appellant.

Lucian Touchstone, Chas. E. Long, Jr., both of Dallas, for appellee.

HALE, Justice.

Appellant, Farmers Gin Company, sued appellee, Texas Electric Railway Company, for damages on account of the partial destruction by fire of 23 bales of cotton while stored on the platform of appellee at West, Texas. The asserted liability was predicated upon the pleaded theory that there had been a constructive delivery of the cotton which gave rise to an implied contract of bailment, whereby appellee became charged with the responsibility of exercising ordinary care to protect the stored cotton from loss by fire; that appellee had failed in certain particulars to discharge the duty thus imposed upon it; and that the negligence of appellee in each of such particulars was a proximate cause of the loss and damages for which recovery was sought.

The case was tried before a jury. Upon the conclusion of the evidence appellee duly presented its motion for an instructed verdict. The motion was grounded in part upon the contention that the evidence wholly failed to show the existence of any contract of bailment, express or implied, between the parties with respect to the stored cotton, and in the absence of such contract appellee owed no duty to protect the cotton against loss by fire. The motion was further grounded upon the contention that the undisputed evidence showed the loss complained of had resulted from the contributory negligence of appellant and from the danger of risks assumed and incurred by it in voluntarily placing its cotton on the storage platform under the existing circumstances. The motion was sustained and judgment was rendered that appellant take nothing. Appellant says the court below erred in sustaining the motion of appellee for an instructed verdict and in rendering judgment accordingly. It contends that by virtue of the prevalent custom and usage shown by the material circumstances in evidence there was, in contemplation of law, a constructive delivery of the cotton to appellee which resulted in an implied bailment, imposing upon appellee the legal duty of exercising ordinary care to protect the stored cotton from the known hazards of fire. It insists that since the evidence was sufficient to raise issues of fact determinative of appellee's alleged liability, the trial court should have submitted such issuable facts to the jury for determination.

In passing upon the propriety of the trial court's action in sustaining the motion of appellee for an instructed verdict, it is the duty of this court to view the evidence as a whole and all reasonable inferences and deductions that may properly be drawn therefrom in the light most favorable to the contentions of appellant. Roeser v. Coffer, Tex.Civ.App., 98 S.W.2d 275; Jacobs v. Bailey, (er dis.) Tex.Civ.App., 118 S.W.2d 484; Texas-Pacific Coal & Oil Co. v. Wells, Tex.Civ.App., 151 S.W.2d 927, pt. 2; Fruth v. Gaston, (er. ref. w. m.) Tex.Civ.App. 187 S.W.2d 584.

The evidence adduced upon the trial shows that appellee was a common carrier for hire on all dates material to this suit. Its line of railway passed through the town of West, where it maintained a passenger station, freight warehouse and a concrete loading platform which was approximately 20 ft. wide, 100 ft. long and 3 or 4 ft. high. The loading platform was about 30 ft. north of the depot and warehouse and was situated about three blocks from the main business section in the town of West. The M. K. & T. RR. Co., commonly known as the Katy, also operated a competing line of railway through and maintained a depot and cotton plaftorm in the town of West.

It was the prevalent custom which had existed in West for more than three years prior to the fire for appellant and the other three ginners of the town to deliver their cotton, as soon as they had purchased the same from their customers, to the cotton platform of appellee or of the Katy, and to store the same there until an entire shipment had been accumulated. When appellant had sold its cotton and was ready to ship the same, appellee or the Katy, as the case might be, would then issue to appellant at the request of the latter a bill of lading covering the shipment. After the delivery of cotton to appellee's platform, it was the custom and usage for appellee to exercise dominion and control over the same, moving it about at will and loading it at the expense of appellee into cars for shipment. Appellee constructed and maintained its cotton platform for the purpose of getting the cotton shipping business at West and it invited and solicited appellant and the other ginners at West to store their cotton on its platform in order to get their shipping business.

Pursuant to the foregoing custom and usage, appellant delivered 34 bales of its cotton during October 26th and 27th of 1948 on to the cotton platform of appellee for transportation to J. C. Mann & Co. at Waco, Texas. Appellant's sole purpose in placing its cotton on the platform was to have the same transported to Waco over appellee's line of railway. At about 4:00 o'clock A.M. on October 28, 1948, before any bill of lading had been issued for the contemplated shipment, a fire of undetermined origin broke out among the cotton stored on the platform. Approximately three hours time was required to bring the fire under control. After the fire had been extinguished, it was...