Huie v. Lay

• Court: Texas Court of Appeals
• Writing for the Court: Pitts
• Citation: Huie v. Lay, 170 S.W.2d 823 (Tex. App. 1943)
• Decision Date: 29 March 1943
• Docket Number: No. 5540.,5540.
• Parties: HUIE v. LAY et al.

170 S.W.2d 823

HUIE v. LAY et al.

No. 5540.

Court of Civil Appeals of Texas. Amarillo.

March 29, 1943.

Rehearing Denied May 3, 1943.

Appeal from District Court, McCulloch County; A. O. Newman, Judge.

Action by A. M. Lay and others against O. O. Huie for the value of cotton destroyed by fire while in transit by defendant's truck. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ewell H. Muse, Jr., of Austin, for appellant.

R. G. Smith, of Lubbock, for appellees.

PITTS, Chief Justice.

This is an appeal from the District Court of McCulloch County to the Court of Civil Appeals of the Third Supreme Judicial District at Austin and transferred by the Supreme Court to this Court. Appellee, A. M. Lay & Company, sued appellant, O. O. Huie, for $2,614.89 as the value of 47 bales of cotton that were destroyed by fire near Sterling City about December 18, 1939, while in the possession of appellant and while in transit by truck from Littlefield, Texas to Houston, Texas under an express contract of delivery to Houston. The case was tried before a jury with a judgment rendered for appellees non obstante veredicto by the trial court for $874.70.

The record discloses that appellee owned 70 bales of cotton at Littlefield and contracted with appellant, who owned, operated and controlled certain motor trucks and trailers as a motor contract carrier and was engaged in the transportation business, to transport said cotton from Littlefield to Houston and to deliver same to George H. MacFadden and Brothers at Houston; that appellee agreed to pay appellant the sum of $1.75 per bale for the delivery of said cotton; that appellee on December 18, 1939, delivered to appellant at Littlefield the 70 bales of cotton with 47 bales loaded on one truck and 23 bales loaded on another truck to be delivered in compliance with the contract; that appellant's son, Roy Huie, was the driver in charge of the truck carrying the 47 bales of cotton; that some three and one-half miles from Sterling City on State Highway No. 87 the 47 bales of cotton while loaded on the truck were completely destroyed by fire about midnight on December 18, 1939, while the remaining 23 bales of cotton were delivered in accordance with the contract; that no eye witness to the manner in which the cotton caught on fire testified before the trial court; that no attempt was made to explain by evidence of any probative force as to how or why the cotton was burned; that Joe Emmer, called as a witness by appellee, testified that he was in the automobile business and assistant fire chief of Sterling City at the time the cotton burned; that he had lived at Sterling City 32 years; that on the night the cotton burned he went to the place of the fire about midnight on Highway No. 87 three and one-half miles from Sterling City toward Big Spring; that it appeared there were about 50 bales of cotton on the truck and trailer and all of them were on fire and there was too much heat and the cotton was too well covered by fire to save any of it; that he did not know how long the cotton had been burning when he arrived; that the truck was stopped on the shoulder of the highway and nobody else was there; that it did not appear that the truck had been involved in a collision; that the driver of the truck was not there; that he stayed at the scene for about one and one-half or two hours during which time many passers-by stopped and looked it over; that he went back to the truck next morning and stirred up the fire so it could finish burning; that it took two or three days for it to finish burning; that he was out there several times while it was burning watching to prevent a grass fire; that he never did see the driver of the truck; that he moved the truck and trailer into Sterling City two or three days after the fire but did not know to whom they belonged; that next morning after he discovered the fire he discovered evidence of the fire along the highway in the direction from which the truck had come for a distance of three miles beyond the car by burned rubber on the highway showing that the dual wheels skidded in it; that the burned rubber was black, easily trailed and continued beyond the three mile point where he turned back.

The record further discloses that the insurance company had paid appellee $1,740.19 on the loss of the 47 bales of cotton; that appellant had hauled cotton for appellee previous to the transaction out of which this suit grew; that appellant held a "special commodity carrier permit" from the Railroad Commission of Texas to haul livestock, feed stuffs, wool, household goods and other commodities over various routes in Texas but that he had no authority from the Railroad Commission to haul cotton; that on previous occasions when appellant hauled cotton for appellee, appellee gave appellant a "fictitious bill of sale" for the cotton then hauled in order that appellant and his drivers may show the "fictitious bill of sale" to any highway officer who may hail them and question them about hauling cotton illegally and claim the cotton as their own personal property, but that no such "bill of sale" was issued to appellant by appellee on the 47 bales of cotton in question in this case; that appellant testified before the trial court to the effect, among other things, that he had four trucks operating on December 18, 1939, two of which were hauling the cotton in question, and that he did not know of his own knowledge how the loss of the 47 bales of cotton by fire occurred. At the close of the evidence both appellant and appellee asked for an instructed verdict but both motions were overruled by the trial judge, who asked the jury the following questions:

"Do you find from a preponderance of the evidence that the driver of defendant's truck upon which the 47 bales of cotton burned was guilty of negligence in failing to observe said cotton on fire at the time said fire began?"

"Do you find from a preponderance of the evidence that the driver of defendant's truck upon which the 47 bales of cotton burned failed to use that degree of care which an ordinarily prudent person would have used under the same or similar circumstances to observe said cotton afire in sufficient time to prevent it from being destroyed?"

"Do you find from...