Philleo v. Sanford

• Decision Date: 01 January 1856
• Citation: 17 Tex. 227
• Parties: THERON L. PHILLEO v. A. C. SANFORD AND ANOTHER.
• Court: Texas Supreme Court

17 Tex. 227

THERON L. PHILLEO

v.A. C. SANFORD AND ANOTHER.

Supreme Court of Texas.

1856.

The case of Chevaillier v. Strahan (2 Tex. 115), on the law of common carriers, cited and approved. [2 Tex. 115;18 Tex. 498.]

The case of Chevaillier v. Patton (10 Tex. 344) was a particular and accepted case, having especial and exclusive reference to that particular mode of transportation--in open flat boats.

It cannot be pretended that goods may not be conveyed securely in a covered wagon, without being exposed to injury from rain; and he who undertakes their transportation in this mode, as a common carrier, insures their carriage securely and without injury from any such cause.

Appeal from Cherokee. Tried below before the Hon. William W. Morris.

Suit by the appellant against appellees, Sanford and Carr, on a contract as common carriers. The defendants were common carriers, and undertook to transport plaintiff's goods from Shreveport in the state of Louisiana to Rusk, in Cherokee county. The goods were injured by water in the course of transportation, and this suit was brought to recover damages therefor. The team belonged to Carr, and Sanford drove for a share of the profits. Plea of infancy by Sanford. The plaintiff first proved his case at all points. The defendant, Sanford, then proved that he was a minor “at the time of the trial.” Defendant Carr called a witness, who testified that he, witness, was with Sanford, and heard plaintiff speak to him to haul the goods; that Sanford told plaintiff he had a good, safe wagon, and that he would haul his goods in the wagon, which he then had with him, which wagon plaintiff then saw, witness supposed, as it was standing by at the time of the conversation; and defendant told plaintiff that the wagon was covered with a good coarse Lowell sheet. Witness further testified that he traveled with Sanford while he was hauling the goods from Shreveport to Rusk; that it commenced raining on them, about twenty-seven miles from Shreveport; that it rained slowly until night; that about night they reached a house and took out such boxes of goods as were light and put them in the house, and that during the night it rained very hard, so much so that they were water bound next morning by a creek, and that during the night defendant placed his bed quilts over the wagon to protect the goods; that it afterwards rained right smartly on them several times; that they finally reached New Salem, about seventeen miles from Rusk, Cherokee county; and that there came up, the first night after they got to New Salem, a heavy storm of wind and rain; and that when defendant took the goods to plaintiff, defendant wanted plaintiff to pay him for hauling the goods; plaintiff said he would not, until he opened them to see whether they were damaged or not, for that he was at New Salem himself one night while the goods were on the road, and could scarcely keep dry in the tavern, which, witness stated, was a good, comfortable, dry house.

On cross-examination, witness stated that defendant, after reaching New Salem with plaintiff's goods, remained there with the goods from Thursday evening until the Friday week following, or about nine days.

The judge charged the jury as follows: If you find from the proof that the defendants' wagon was covered and secured in the manner customary with wagoners in this part of Texas, and that plaintiff, knowing the condition of the wagon, directed his goods to be hauled thereon, and that the person in charge of the wagon used all the care and diligence in his power to preserve the goods in the wagon, and that in despite of such care the goods were damaged by a storm or rain, your verdict should be for the defendants. If you find that such care and diligence were not used, your verdict should be for the plaintiff to the extent of the damage according to the proof.

The plaintiff asked the judge to charge the jury as follows:

That nothing will excuse the defendants, as common carriers, from liability for damage done to freight, except such inevitable accident as it is beyond the power of...