Rogers v. Crespi & Co., 3104

• Citation: 259 S.W.2d 928
• Decision Date: 18 June 1953
• Docket Number: No. 3104,3104
• Parties: ROGERS v. CRESPI & CO.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 928

259 S.W.2d 928

ROGERS v. CRESPI & CO.

No. 3104.

Court of Civil Appeals of Texas, Waco.

June 18, 1953.

Julius C. Jacobs and Robert C. Jackson, Jr., Corsicana, for appellant.

C. M. Smithdeal, Milford, for appellee.

HALE, Justice.

Appellee sued appellant as a common carrier for hire to recover the value of fifty bales of cotton which were destroyed by fire on August 1, 1951 while being transported on a motor-propelled truck from Raymondville to Bonham, Texas. The case was tried before a jury. Upon the conclusion of the evidence appellee duly presented its motion for a peremptory instruction. After overruling appellee's motion, the court submitted certain special issues to the jury. In answer to the issues submitted the jury found in effect that (1) the parties agreed that if appellant would haul the cotton appellee would exempt him 'from any and all liability resulting from loss in the transportation of the cotton' and that (2) the difference between the value of the cotton immediately before and after its damage by fire was $7,965.33. Thereupon, appellee filed its motion for judgment in its favor non obstante veredicto for the sum of $7,965.33 upon the grounds, among others, that the answer of the jury to special issue No. 1 was without any support in the evidence and was immaterial because the undisputed evidence showed the cotton was delivered to appellant as a common carrier and under the provisions of Art. 883 of Vernon's Tex.Civ.Stats. the agreement found by the jury was invalid and hence such finding should be ignored. After proper notice and hearing the court sustained the motion of appellee for judgment in its favor non obstante veredicto and rendered judgment accordingly.

Appellant predicates his appeal upon three points of error. By the first point in his brief he says the court erred in rendering judgment against him notwithstanding the verdict because the evidence showed he was a private contract carrier and not a common carrier of the cotton and was therefore permitted under the law to contract with appellee for exemption from liability for the loss of which complaint is here made.

Art. 883 of Vernon's Tex.Civ.Stats. provides that common carriers for hire within this State shall not limit or restrict in any manner whatsoever their liability as it exists at common law and that no agreement made in contravention thereof shall be valid. At common law there is an implied agreement on the part of common carriers for hire to carry safely the goods entrusted to them for transportation and they are held to a very strict accountability for loss of or failure to deliver goods received by them for carriage, being generally liable as an insurer for all losses and injuries except such as arise from an act of God or of the public enemy, from the negligence of the shipper, or from the inherent nature or vice of the property shipped. 8 Tex.Jur., p. 217, § 140 and authorities; 13 C.J.S., Carriers, § 71, p. 131, and authorities; 9 Am.Jur., p. 813, § 661 and authorities.

Art. 911b, Sec. 1(h) of Vernon's Tex.Civ.Stats., defines the term 'contract carrier' to mean any motor carrier transporting property for compensation or hire over any highway of this State other than as a common carrier. In the case of Mayhew v. McFarland, 137 Tex. 391, 153 S.W.2d 428, 431, the Supreme Court of Texas said: 'The rule has long prevailed in this State that all persons who transport goods from place to place for hire, for such persons as see fit to employ them, whether usually or occasionally, whether as a principal or incidental occupation, are common carriers, and incur all their responsibilities. Chevallier v. Straham, 2 Tex. 115, 47 Am.Dec. 639; Haynie v. Baylor, 18 Tex. 498; Hahl v. Laux, 42 Tex.Civ.App. 182, 93 S.W. 1080; 8 Tex.Jur. p. 34.'

On the trial of this case appellant testified in substance that he had been hauling cotton over the highways of this State from place to place for such persons as saw fit to employ him for approximately 15 years and thereby making a living for himself and his family.

'Q. You have always hauled for anybody that has called on you to haul? A. That's right, to make a living. * * *

'Q. You don't turn down anybody do you? A. No, I don't because I make a living for my wife and baby.

'Q. You haul cotton for anybody that needs it? A. Anybody that calls me I haul it.

'Q. And you have been doing that for several years? A. Fifteen years, yes sir.'

He also testified that he had never secured a permit from the Railroad Commission of Texas to haul cotton because it was easier and less expensive for him to pay an occasional fine for the illegal operation of his trucks than it was to comply with the legal prerequisites to the issuance of such permit. We find no pleading or evidence which shows or tends to show that appellee or any of its responsible agents knew, or should have known, that appellant did not have a permit to haul cotton over the highways of this State.

In our opinion, the testimony of appellant shows without any dispute that he was in legal contemplation a common carrier, as distinguished from a contract carrier, at the time when this cargo of cotton was delivered to him for transportation. 8 Tex.Jur. p. 34, § 2; 13 C.J.S., Carriers, § 3, p. 25; 9 Amer.Jur. p. 430, § 4; Chevallier v. Straham, 2 Tex. 115; Burnett v. Riter, Tex.Civ.App., 276 S.W. 347, pts. 1-4. Having held himself out to the public generally for a period of fifteen years as being able, ready and willing to haul cotton from place to place for such persons indiscriminately as saw fit to employ his services in that capacity, we do not think he can now be heard to say he was not a common carrier in the transaction here complained of solely because he did not have a permit under the provisions of Art. 911b of Vernon's Tex.Civ.Stats. to operate a truck in the business of hauling cotton over the gighways of Texas. Mayhew v. McFarland, 137 Tex. 391, 153 S.W.2d 428. Since he was a common carrier, the finding of the jury to the effect that appellee agreed to exempt him from 'any and all liability' was immaterial because such agreement was invalid under the terms of Art. 883 of Vernon's Tex.Civ.Stats., even though the finding of the jury with respect to such agreement was supported by some evidence. Therefore, we overrule appellant's first point of error.

By his second point appellant says the trial court erred in refusing to submit to the jury the following special issue requested by him: 'From a preponderance of the evidence, do you find that the cotton in question was burned by a fire that originated from the inside of a bale of cotton?' He contends that such issue was raised by the pleadings and the evidence and that an affirmative answer to the same would have absolved him from negligence and liability for the loss complained of, even though he was a common carrier of the cotton at the time when the loss occurred. We cannot agree with these contentions.

Appellant went to trial on pleadings that amounted to nothing more than a general denial of the allegations in appellee's petition. During the progress of the trial appellant tendered Frank White as a witness in his behalf. The witness testified that he was chief of the volunteer fire department at Bremond and that he was called shortly before noon on August 1, 1951 to put out a cotton fire on a truck at a point about three miles south of Bremond. When he was asked by counsel for appellant whether from his experience as a fireman he was able to diagnose the cause of a cotton fire, such as he saw on this...