Haynie v. Baylor

• Decision Date: 01 January 1857
• Citation: 18 Tex. 498
• Parties: JAMES A. HAYNIE v. WILLIAM M. BAYLOR.
• Court: Texas Supreme Court

18 Tex. 498

JAMES A. HAYNIE

v.WILLIAM M. BAYLOR.

Supreme Court of Texas.

1857.

If one is accustomed to undertake, for hire, to transport the goods of those who choose to employ him, though it be not his constant or usual, but only an occasional occupation, he is a common carrier within the rule laid down in Chevaillier v. Strahan, 2 Tex. 115; at least, whenever he holds himself out in any way to the public as a carrier, or undertakes as a matter of business and profit, the transportation of goods.

But because one whose principal occupation is farming, does this occasionally and at certain seasons only, is he therefore necessarily to be deemed to incur the reponsibility of a common carrier, at all seasons, and in reference to every contract he may make to carry goods, under whatever special circumstances? We think not.

See this case for circumstances under which it was held that it was proper for the court to refer to the jury the question whether the defendant ought to be held to the responsibility of a common carrier, or whether, as to the particular employment, he was not a private carrier, and only responsible as such; and the jury having found for the defendant, it was held there was no error in the refusal of the court below to set aside the verdict.

Where the question was as to the cause of the burning of a wagon load of goods in the course of transportation, it was held that the opinions of witnesses who were at the place soon after the burning, formed upon grounds stated by them, were not admissible in evidence; it was for the witnesses to depose only to the matters of fact, which came to their observation or knowledge, and leave the jury to draw their own conclusions from the facts and circumstances deposed to.

Appeal from Fayette. Tried below before the Hon. James H. Bell.

Suit by appellant against appellee for $596.82, the value of certain merchandise which the defendant undertook to transport by wagon, for plaintiff, from Texana to LaGrange, and which he failed to deliver. It was alleged that the defendant received the goods in the capacity of a common carrier. An amendment of the petition charged the defendant as a private carrier, in case of failure to prove that he was a common carrier. Answer, denying that defendant was a common carrier, alleging that he was a farmer, and undertook to haul the goods in this instance for the accommodation of the plaintiff, and that they were accidentally consumed by fire, on the road, without any fault of defendant.

Plaintiff proved the purchase by him of the goods in Galveston, with the prices and charges, paid; that the retail price of goods at LaGrange was thirty-three per cent. added to the cost price at Galveston; the receipt of the goods at Texana in good order, in the way of transportation, by a forwarding and commission house, C. L. Owen & Co.; that witness was a member of said firm; that on the 25th day of January, 1855, C. L. Owen & Co. forwarded said packages of goods to plaintiff at LaGrange by the wagon of defendant; that said C. L. Owen & Co. agreed with said defendant, that the defendant was to deliver said packages of goods to plaintiff; the plaintiff to pay the freight for same at the rate of one dollar and fifty cents per hundred pounds, as per the wagoner's receipt of said Baylor, as follows:

“Received, Texana, 25th January, 1855, of Clark L. Owen & Co., in good order, the following named merchandise, viz.:

(Here description of packages.)

which I promise to deliver, without unnecessary delay, unto J. A. Haynie, Esq., LaGrange, he paying freight on same at one 50-100 dollars per 100 lbs.

+---------------------------------+
                ¦Duplicate¦(Signed)¦W. M. BAYLOR.”¦
                +---------------------------------+
                

On cross-examination said witness testified that said packages were the only lot of goods shipped by plaintiff, through the firm of C. L. Owen & Co.; that it was unusual to ship goods to LaGrange, through Texana; that he does not know that goods for LaGrange are never shipped to LaGrange through that point except to meet some special agent to haul them; that he knows nothing of the points through which plaintiff was in the habit of shipping his goods; that C. L. Owen & Co. were not specially directed by plaintiff or his agents to send said lot of goods by defendant, Baylor; that it was at the earnest solicitation of C. L. Owen & Co. that defendant consented to haul said goods; that, in so doing, C. L. Owen & Co. were acting as agents of plaintiff as receivers and forwarders; that witness has no recollection of C. L. Owen & Co. informing defendant, that it was plaintiff's special request that defendant should haul said load of goods; that defendant had engaged for himself a load of goods, or groceries, to bring up with him before he was requested to haul said goods. It was with great hesitation that defendant consented to leave his own load and take that of plaintiff. Witness, as one of the firm of C. L. Owen & Co., went with defendant, and assisted him in obtaining a release from the obligation to take a load of his own from other merchants. Defendant reluctantly consented to take said load for Haynie. Defendant said he would only consent to take the load as an accommodation to plaintiff, as a neighbor. Defendant stated that he had not gone to Texana, expecting to find merchandise there for LaGrange, but merely to take off a remnant of his own crop, to see the place and country, etc., and that he hauled the load of goods to accommodate plaintiff. The goods, when delivered to defendant, were placed in a safe conveyance, and protected in the usual manner adopted by persons hauling goods in Texas. While at Texana defendant took the same care of said goods that a careful man would of his own goods, under similar circumstances. It is customary in Texas to convey goods from place to place in the same manner that defendant used in conveying those of plaintiff. It is customary to use the same character of team and driver, as that used by defendant. The same driver hauled defendant's cotton to Texana, and a portion of plaintiff's; judges that he was such a driver as a careful man usually entrusts with his team.

Charles S. Longcope, witness called by plaintiff, was acquainted with the defendant; had known him for a good many years. During the time witness was merchandising in LaGrange, defendant had applied to him to engage hauling, by wagon, to and from the coast, but he had not employed defendant, himself, to haul for him. Witness was under the impression that for several years previous to this suit, defendant had been engaged, hauling for other persons, but could not state any particular instance of his doing so.

James L. Gay, for plaintiff, testified that he was well acquainted with defendant; lived near to him. In the fall of 1854, defendant made application to witness to haul cotton to Houston. Witness engaged him, and defendant hauled a load of cotton for him to Houston at that time for about $1 per hundred. Defendant brought back a return load of freight for witness, for which witness paid him about the same price. Witness was certain that, for several years previous to the loss of plaintiff's goods, defendant had been engaged hauling for other people, but could not remember any particular instances. Witness was a cotton planter; never hauled his own cotton to market; that cotton planters rarely ever hauled their own crops to market in this section of country, but employed others to do so for them. Many small farmers hauled, in the season for that business, for hire, and, when they raised cotton, carried their own crop to market. Defendant never raised but one crop of cotton, to witness' knowledge, which was in 1854. Defendant told witness, at the time he engaged the load of cotton before spoken of, that defendant was going into the wagoning business. In the summer or fall, of 1854, defendant had a man employed to build him a couple of wagons; one was built, and the workman left before completing the other. Defendant was indebted to witness at the time of the hauling spoken of and witness credited Baylor's account with the price for the hauling; but there was no understanding between witness and defendant, that such should be done at the time of the hauling.

Abel Howington, for plaintiff, stated that he was well acquainted with defendant; had lived within a few miles of him for a number of years. Defendant was but a small farmer; had but one field hand, a negro woman. Several years ago, defendant had been engaged in the wagoning business to and from the towns on the coast, but about 1851 or 1852, defendant told him he had sold out his wagons. In 1853 or 1854, defendant informed witness that he was going into the wagoning business again, and would run several wagons; that defendant had employed a man to make him two or three wagons. Defendant had a negro named Armstead, a trusty negro and a good wagoner; that he did not know of defendant's hauling for several years before the time of his going to Texana, when his wagon was burned.

John Rosenfield, for plaintiff, stated that he had been a dry goods retail merchant for several years prior and up to the summer of 1855, in the town of LaGrange. Defendant applied to witness in the fall of 1853, to engage hauling to and from the forwarding towns on the coast; but having none to engage, did not employ defendant. Prior to this suit defendant had been engaged in hauling by wagon for other persons, but witness could not specify any instances that occurred.

John G. Izzard, for plaintiff, testified that he was well acquainted with defendant; had known him for many years; witness was an old resident of the county; had wagoned a good deal himself. Witness and defendant were both small farmers. For the last fifteen years witness had been engaged in hauling for hire, whenever he could make something by it. Defendant had done the same way. Witness went in company with defendant's wagon at the time ...