National Compress Co. v. Hamlin

• Decision Date: 07 June 1924
• Docket Number: (No. 9136.)
• Parties: NATIONAL COMPRESS CO. v. HAMLIN.
• Court: Texas Court of Appeals

Page 488

264 S.W. 488

NATIONAL COMPRESS CO. v. HAMLIN.

(No. 9136.)

Court of Civil Appeals of Texas. Dallas.

June 7, 1924.

Rehearing Denied July 5, 1924.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Action by R. M. Hamlin against the National Compress Company. From judgment for plaintiff, defendant appeals. Affirmed.

Sharp & Tirely, of Ennis, and Sleeper, Boynton & Kendall, of Waco, for appellant.

J. T. Spencer, of Waxahachie, for appellee.

JONES, C. J.

Appellant has duly perfected its appeal from a judgment awarding damages in favor of appellee in the sum of $1,935.96. This judgment is based upon the following facts:

Appellant is the owner of a cotton compress located in the city of Waxahachie and, in its operation, receives cotton in bale, both for immediate compressing and for storage and ultimate compressing. A short time previous to April 25, 1922, appellee delivered to appellant 32 bales of cotton for storage and ultimate compressing, and, at approximately the same time, the M. T. Patrick estate delivered to appellant for storage and ultimate compressing 76 bales of cotton. As compensation for the storage, appellant charged appellee and the M. T. Patrick estate the sum of 40 cents per bale for the first 15 days in which said cotton was in storage and 1 cent additional each day per bale thereafter as long as said cotton was held by appellant in storage. These fees were paid both by appellee and the M. T. Patrick estate. At the time appellant received this cotton, it caused same to be weighed and tagged and placed on its compress platform.

Appellant's compress was constructed in the year 1895 and consisted of the usual buildings, sheds, and platforms used in the conduct of such business. This construction was near the Missouri, Kansas & Texas Railway tracks and near Waxahachie creek, being some 40 or 50 yards from the bank of said creek. Waxahachie creek was a stream that ran through the southern portion of the city of Waxahachie and was subject to frequent overflow. At the time of the construction of this compress, the highest known point which the overflow waters of said creek had attained had occurred during the year 1887. Appellant constructed its platform on a level with this high-water mark. The Missouri, Kansas & Texas depot in the city of Waxahachie was built also in the lowlands of this creek, and its floors were placed on the level of this high-water mark of 1887; its construction being previous to the compress construction. Some distance from where this compress was built, a branch, also subject to overflow, emptied its waters into Waxahachie creek; the compress being constructed in the fork of said branch and Waxahachie creek. The cotton in question was stored on a platform with very large openings and in no way safeguarded to hold cotton within the bounds of the platform in case of an overflow that would be sufficient to wash the cotton away. On the morning of April 25, 1922, Waxahachie creek overflowed its banks and its flood waters inundated the cotton platform and the force of the flood waters washed the said cotton bales from off the platform and damaged the cotton in the amount given in the judgment. The highwater mark reached on the morning of the 25th was approximately 30 inches higher than the mark reached by the overflow of 1887. There had been, just previous to this overflow, very heavy rains, both above and below the city of Waxahachie along said creek, so that the ground was thoroughly soaked with water and incapable of absorbing any of the rain that fell on the evening of the 24th and the morning of the 25th of April. The rain was not in the form of a "cloud-burst," but was a very hard downpour, and Waxahachie creek began to overflow its banks at approximately 5 a. m. of said day, and the flood rose rapidly, reaching its crest at approximately 7 a. m. While Waxahachie creek was the subject of frequent overflows, only at one other time since the erection of the compress platform had its flood waters subjected the said platform to overflow. This was in the year 1918, about four years previous to the flood in question. Some damage was done to cotton on the platform at that time.

Appellant denied responsibility for the damage suffered by appellee, and this suit resulted, appellee having subsequent to the flood, and previous to the filing of the suit, purchased from the M. T. Patrick estate the claim for damages to the cotton belonging to said estate.

Appellee based his rights to recover on the theory, as reflected by his petition, that, at the time appellant accepted and received the said cotton for storage, it placed same for such storage upon its platform, sheds, and compress buildings, which it knew were unsafe, unsuitable, and dangerous for the storage of cotton for the reason that the said sheds and floor of the compress building were too low and subject to overflow from the waters of Waxahachie creek during freshets; further, that in constructing said compress building, platforms, and sheds, it left large openings or doorways in the walls of said building, without doors or other means of closing same and without any means to prevent the water from washing cotton off and out of said building during such freshets, and that such construction and such want of protection was negligence on the part of appellant.

It was further alleged that if said compress building had been constructed with floors, platforms, and sheds three feet higher than they were constructed, the same would have been a safe and suitable place for the storage of cotton and free from damage from flood waters of said Waxahachie creek; and, further, that appellant was guilty of negligence in such construction, in that it failed to place doors or other means of inclosure in the open ways of said compress building, and failed to construct retaining walls and other means of protection around said buildings, sheds and platforms, which would have protected appellee's cotton from said flood waters.

Appellee also alleged the long, continued rains that caused Waxahachie creek to overflow its banks and inundate the said platforms and floors of the compress building on ...