Missouri Pac. Ry. Co. v. Sherwood

• Decision Date: 22 March 1892
• Citation: 19 S.W. 455
• Court: Texas Supreme Court
• Parties: MISSOURI PAC. RY. CO. v. SHERWOOD <I>et al.</I>

19 S.W. 455

MISSOURI PAC. RY. CO. v. SHERWOOD et al.

Supreme Court of Texas.

March 22, 1892.

Commissioners' decision. Section B. Appeal from district court, Dallas county; R. E. BURKE, Judge.

Action by Sherwood, Thompson & Co., for the use of the Insurance Company of North America, against the Missouri Pacific Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Alexander & Clark, for appellant. Leake, Shepard & Miller, for appellees.

TARLTON, J.

Appellees, as plaintiffs, brought this suit September 29, 1888, in the district court of Dallas county, to recover from appellant, as defendant, the sum of $13,770, besides interest, the alleged value of 270 bales of cotton, which defendant failed to deliver, according to its contract, at Liverpool, England. The petition avers that the defendant is a corporation created under and by virtue of the laws of the state of Texas. It alleges that on November 14, 1887, Martin, Wise & Fitzhugh, of Paris, Tex., purchased 500 bales of cotton on account of plaintiffs, which they delivered to the defendant at Greenville, Tex., to be by it carried on its lines in Texas and forwarded to the city of Liverpool, England; that defendant received the cotton, and undertook and promised, in consideration of $1.36 per 100 pounds, to carry upon its lines in Texas, and to have carried by its connecting lines, the 500 bales of cotton, and deliver them to Martin, Wise & Fitzhugh or their assigns at Liverpool; that thereupon defendant executed to Martin, Wise & Fitzhugh, plaintiffs' agent, five bills of lading, by which it acknowledged the receipt of the cotton, and agreed to carry the same upon its lines and deliver it to its connecting lines, to be carried to the city of New Orleans, La., there to be delivered to the West India Pacific Steamship Company, and to be transported to Liverpool and delivered to Martin, Wise & Fitzhugh, or their assigns; that the bills of lading, which contained the written direction, "Notify Sherwood, Thompson & Co., Liverpool, England," were duly assigned and delivered to plaintiffs; that of the 500 bales so shipped the defendant failed to deliver 270 bales, which plaintiffs charge were lost or destroyed while in the possession of defendant within the limits of Texas, or converted by it to its own use. The defendant pleaded a general demurrer, general denial, and specially as follows: That it is a corporation duly and legally incorporated under the laws of the state of Missouri; that it is a railway, and that its line of railway, and especially that part of it on which said cotton was to be shipped, does not now, and at the time of the alleged shipment did not, lie wholly within the state of Texas, but partly within said state and partly without said state; that, as alleged by plaintiffs, it delivered said five bills of lading to Martin, Wise & Fitzhugh, which were duly assigned and delivered to plaintiffs; that plaintiffs received and accepted the same, subject to the terms and conditions thereof; that under and by virtue of the terms of said five bills of lading the same were foreign shipments from the town of Greenville, Tex., to the city of Liverpool, England; that they were not shipments wholly within the state of Texas; that in said five bills of lading, and in each of them, it was expressly agreed and stipulated that this defendant should not be liable for loss or damage of said cotton by fire or other casualty while in transit, or while in deposit or place of transshipment or depots or landings, or at the points of delivery; that if said cotton was destroyed, as claimed by plaintiffs, it was destroyed by fire at Greenville, Tex., while in transit, while in the Greenville Compress, in no wise owned or operated by this defendant, while awaiting to be compressed, as provided by said bills of lading; that, if it was destroyed in said compress, it was by fire without fault or negligence on defendant's part, or on the part of its servants or agents. Plaintiffs, by supplemental petition, demurred to defendant's said plea, setting up said exemption from liability for loss by fire as a stipulation of said bills of lading, on the ground that the same is unreasonable, contrary to public policy, and prohibited by the laws of the state of Texas. Plaintiffs also replied specially that the defendant's railway at the time of the contract was wholly within the state of Texas, and that in order to carry the plaintiffs' cotton from Greenville to its destination the defendant would have been compelled to deliver the same on the boundary of Texas to some other carrier; that the contract of shipment or bill of lading, by its express terms, stipulates, and said stipulation is permissible by the laws of Texas, that "for all loss or damage occurring in the transportation of said cotton the legal remedy shall be against the particular carrier, only, in whose custody the cotton may be at the time of the happening thereof;" that it is further expressly provided in the contract "that the liability of the defendant is limited to its own line of railway, and is to cease upon delivery to the next succeeding carrier of the freight specified in said bill of lading," etc. The bill of lading, read in evidence, shows that the cotton was received at Greenville Tex., to be carried from that point to Liverpool, England. It also provides that the Missouri Pacific Railway Company, and its connections which received said property, shall not be liable for loss or damage by fire or other casualty. It further provides that, in the case of loss or damage, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss or damage. It is also provided that the loss shall be computed at the value or cost of the goods and property at the place and time of shipment. It is further agreed that the Missouri Pacific Railway Company has the liberty to forward the property to the port of destination by any other steamer or steamship company than that named, and that the liability of the Missouri Pacific Railway as a common carrier terminates on the delivery of the property to the steamship or its agent at Galveston, when the responsibility of the steamship company commences, and not before. Further, the property shall be transported from Galveston, Tex., to Liverpool, England, by the steamship of the West & Pacific Steamship Company. It is provided also that the bill of lading, duly indorsed by consignees, is to be given up, on demand of the agent of the steamship, in exchange for the ship's copy and order of delivery. It is further provided that the liability of the Missouri Pacific Railway Company is hereby limited to its own line of railway, and is to cease upon delivery to the next succeeding carrier. The bill of lading is signed for the railway company by A. L. Downer, who signs as agent, severally but not jointly, for the railway and steamship companies. The court sustained plaintiffs' exception to defendant's plea setting up its exemption from liability for loss by fire, and trying the case without a jury, September 10, 1890, rendered judgment for the plaintiffs in the sum of $16,493.36 principal and interest. From this judgment, defendant appeals.

The first question to be considered is, did the court err in sustaining the special exception addressed by plaintiffs to defendant's answer? The defendant seeks to shield itself under the stipulation that it should not be liable for loss by fire while in transit, or while on deposit in place of transshipment or depots or landings, or at points of delivery. By such loss we understand a loss due to fire which is not directly traceable to the negligence of the carrier or his servant. Porter's Law of Bill of Lading, § 223, pp. 161, 162, note 1. It is alleged in the defendant's answer that, if the cotton was destroyed, it was destroyed by fire at Greenville, Tex., without fault or negligence of defendant or its servants, while in transit while in the Greenville Compress, in no wise owned or operated by defendant, while waiting to be compressed as provided by the bills of lading. Fire occurring under such circumstances, in view of the exemption clause in the bill of lading pleaded by defendant, is not be ascribed to the negligence of the carrier. Lancaster Mills v. Merchants,' etc., Co., (Tenn.) 14 S. W. Rep. 317. That a common carrier may, unless forbidden by statute, so contract as to exempt itself from liability for loss by fire, unless caused by the negligence of itself or its servants, is well settled. Such a limitation is reasonable. Railway Co. v. Harris, 67 Tex. 166, 2 S. W. Rep. 574; York Co. v. Central Railroad, 3 Wall. 107; Express Co. v. Caldwell, 21 Wall. 264; Hart v. Railway Co., 112 U. S. 338, 5 Sup. Ct. Rep. 151. Appellees, however, claim that the restriction here pleaded is forbidden by our statute, (article 278, Rev. St.,) which reads as follows: "Railroad companies and other common carriers of goods, wares, and merchandise for hire, within this state, on land, or in boats or vessels on the waters entirely within the body of this state, shall not limit or restrict their liability, as it exists at common law, by any general or special notice, or by inserting exceptions in the bill of lading or memorandum given upon the receipt of the goods for transportation, or in any other manner whatever; and no special agreement made in contravention of the foregoing provisions of this article shall be valid." Appellant holds that appellees cannot invoke the provisions of this statute, because (1) the shipment here involved...