In re Fowler

• Decision Date: 01 January 1858
• Citation: 21 Tex. 626
• Parties: H. V. FOWLER v. WILLIAM. DAVENPORT AND ANOTHER.
• Court: Texas Supreme Court

21 Tex. 626

H. V. FOWLER

v.WILLIAM. DAVENPORT AND ANOTHER.

Supreme Court of Texas.

1858.

The use of the words “unavoidable accidents,” in a bill of lading, instead of the usual ones, “inevitable accidents,” does not vary the meaning of the instrument, or change the liability of the carriers.

Where the plaintiff's right to recover depended upon the fact being shown that defendants were partners in, or joint owners of a boat, upon which cotton was freighted and lost, and there was a plea of the general denial, and a special plea admitting the joint ownership, it was held that each plea presented a separate issue, and the admissions contained in the special plea must be taken in reference only to the issue presented by it; and that the admission thus made, did not dispense with the necessity of the plaintiff's proving the partnership, or joint ownership, except as to the issue presented by such special plea.

The general denial puts the plaintiff upon the proof of his cause, whatever else the defendant may have pleaded.

The right given by the statute to the defendant, to plead “as many several matters,” etc., is general, absolute and unlimited, if they are pertinent-- filed all at the same time, and in due order of pleading. There is no qualification or abridgment of the right as to matters that are inconsistent. 25 Tex. 255;28 Tex. 163.

Should there be inconsistent and contradictory allegations in the same plea the rule might well obtain, that for the purpose of the issue presented by that plea, the allegation most favorable to the plaintiff, should be treated as an admission in his favor.

Where a commodity shipped is lost after the commencement of the voyage, the net value of such commodity at the place of destination is the true criterion of damages. 30 Tex. 349.

Interest, as such, is not allowed on damages for the breach of a contract, to which interest is not a legal incident, but may be allowed by way of mulct or punishment for some fraud, delinquency or injustice of the debtor, or for some injury done by him to the creditor.

Appeal from Smith. Tried below before Hon. John Gregg.

The facts of this case, upon which the opinion proceeds, are stated therein.

Stephen Reaves, for appellant.

I. It is insisted that the court below erred in sustaining the exceptions to the several answers. See Whitesides v. Thurlkill, 12 Sm. & Marsh. 599; Chevallier's Adm'rs v. Patton et al. 10 Tex. 344; Harvey v. Baylor, 18 Tex. 498.

II. The court erred in its charge to the jury as a whole, and especially in instructing the jury to allow the plaintiff interest on the value of the cotton as proven.

Interest is a creature of statute, and cannot be allowed without the sanction of the law of the land. It it is the creation of positive law, and we have no statute authorizing interest in suits of this character. See Burton v. Anderson, 1 Tex. 93;Cloud & Smith v. Adriance, Id. 102;Close v. Fields, 2 Tex. 232;Cook & Adriance v. McGreal, 3 Tex. 487;Davis v. Thorn, 6 Tex. 482.

There is no interest allowed by the statute, except on written contracts, ascertaining the sum due. Hart. Dig. art. 1607.

B. T. Selman, for appellee. In support of the ruling of the court upon the answers of defendants, submitted the following, among the many authorities defining the character and liabilities of a common carrier; Chit. Cont. 480; 2 Kent, Com. 598, 601, 608, 609, and note to 597; Story, Bailments, 495, 496, 365, 511, 467; Smith, Mercantile Law, 178, 179; Jones, Bailments, 104; 5 Blackf. 222; 2 Bos. & Pul. 419; 2 Kelly (Ga.), 349. See again 2 Kent, 597, 602, and note to 610, and Story, Bailments, 505, 16, 17, 18 & 571; 21 Wend. 190. These authorities define a common carrier to be an insurer against every loss except those occasioned by “the act of God” or “the king's enemies.”

Tignal W. Jones, also, for appellee.

I. The answers excepted to and ruled out do not (taking each answer as a whole, or each plea in each answer by itself), constitute in law a denial that the defendants were common carriers.

II. But even if the court should think that the defendants' answers, which were ruled out, or any one of the pleas in those answers, constitute a denial of the fact that the defendants were common carriers, then I maintain that the defendants were estopped from saying that they were not common carriers, because their bill of lading, which was made a part of the petition, shows that they contracted as common carriers to carry the cotton. The bill of lading, where there is one, is the contract. Angell, Law of Car. sec. 223. It furnishes the evidence of the contract (Angell, Law of Car. sec. 464); and cannot be contradicted by parol proof. Angell, Law of Car. secs. 228, 229, 230. It is manifest, therefore, that the defendants' answers, which were overruled, are not responsive to the petition, even if the court should think that the whole of them, or any one of them, contained a denial that the defendants were common carriers, and were properly stricken out.

III. The answers excepted to and ruled out by the district court do not show that the defendants, although common carriers, made such a special contract with the plaintiff as exempts them from the liabilities of the common carrier.

IV. The terms, “unavoidable accidents,” employed in a bill of lading, mean the same thing as “inevitable accidents” (Walpole v. Bridges, 5 Blackf. 222; Fish v. Ross, 2 Ga. 356, and Webster's Unabridged Dic.); and “inevitable accidents” mean accidents which cannot be avoided by any human skill or foresight. Angell, Law of Carriers, secs. 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, and authorities there cited. See also Chevallier v. Stratnam, 2 Tex. 115;Walpole v. Bridges, 5 Blackf. 222; Fish v. Ross, 2 Kelly (Ga.), 356; Philio v. Sanford, 17 Tex. 227, and Haynie v. Baylor, 18 Id. 498.

There is no objection, by the defendants, to the general charge of the court in regard to the measure of damages, so that I shall, in this connection, only discuss a portion of the charge.

V. Did the court err in the charge, which reads: “If the jury find for the plaintiff, they may add to whatever sum they may find the plaintiff entitled to eight per cent. interest from the date at which the cotton should have been delivered.”

I maintain that this portion of the charge of the court is in strict accordance with the general law upon the subject of damages in the case of carriers, as stated by Mr. Sedgwick in his work on the Measure of Damages.

That learned author states the rule to be thus: “As a general rule, where goods are intrusted to a carrier, and they are not delivered according to the contract, the value of the goods with interest thereon from the day when they should have been delivered, is the measure of damages.” Sedgwick, Meas. Dam. 355.

On the subject of damages in the case of a carrier, Mr. Angell, in his work on the Law of Carriers, says: “The amount of damages to be recovered, where goods are intrusted to a carrier, and they are not delivered according to his undertaking, depends upon his liability being established, either to answer for the whole value, or only to the extent to which he has succeeded in limiting his responsibility by notice.”“The general rule, in the former case, is the measure of damages.” Angell, Law of Car. sec. 482.

Mr. Angell, in his work on Carriers, refers to the case of McGill v. Rowand, 3 Barr (Penn.), 342, 451, in support of this rule.

In the case of Watkins v. Laughton, 8 Johns. 213, the supreme court say: “The question of interest depends on circumstances. The jury may give interest by way of damages, in cases in which the conduct of the master was improper.” In the case of Amory v. McGregor, 15 Johns. 24, the same principle is recognized.

But the case of King v. Sheppard, 3 Story, C. C. 349, is a direct authority in support of the general rule laid down by Mr. Sedgwick on the Measure of Damages, p. 355.

VI. Did the court err in the portion of the charge to the jury, in which the jury were instructed that the defendants admitted by their pleadings that they were joint owners in the boat?

If the defendants had put in no other plea but the general denial, the appellee would have been compelled to prove that the defendants were partners or joint owners in the boat.

But by pleading the second and ninth pleas of the original answer, and the answer filed 10th June, 1857, they waived proof of the partnership or joint ownership of the boat in these pleas either actually or by intendment of law. 1 Greenl. Ev. sec. 27 and 205.

ROBERTS, J.

This is a suit by appellee against appellants, as partners and common carriers, for not delivering twenty bales of cotton to his consignees at Sabine Pass, which were shipped by appellee on board of their boat “Independence” at Patton's Port in Smith county, and for which one of the said owners of said boat, William Davenport, executed, in his own name as “master,” a bill of lading in regular form, undertaking to carry and deliver said cotton, etc., ““all unavoidable accidents excepted.” The bill of lading is made a part of the petition. The use of the word “unavoidable” in it, instead of the usual word “““inevitable,” does not vary the meaning of the instrument, or change the liability of the carriers. 5 Blackf. 222; 2 Kelly (Ga.), 394.

This instrument contains the contract under which the cotton was shipped, and by it the responsibility of common carriers is assumed. The breach of the contract was assigned by averring that the cotton was not delivered, and that plaintiff had never received anything for the said cotton.

The defendants pleaded a general denial, and a special plea that the boat having started on the trip a raft injured it by unavoidable accident and caused the cotton to be damaged, and that other means of transportation were adopted by which the cotton was delivered to Fowler's commission merchants in New Orleans, the ultimate destination of the cotton,...