Texarkana & Ft. S. Ry. Co. v. Brass

• Decision Date: 09 April 1924
• Docket Number: (No. 438-3911.)
• Citation: 260 S.W. 828
• Parties: TEXARKANA & FT. S. RY. CO. v. BRASS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

Page 828

260 S.W. 828

TEXARKANA & FT. S. RY. CO. v. BRASS.^*

(No. 438-3911.)

Commission of Appeals of Texas, Section B.

April 9, 1924.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Franz Brass against the Texarkana & Fort Smith Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (245 S. W. 457), and defendant brings error. Affirmed.

Wear & Wear, of Hillsboro, and King, Mahaffey & Wheeler, of Texarkana, for plaintiff in error.

C. M. Smithdeal, of Dallas, and Morrow & Stollenwerch, of Hillsboro, for defendant in error.

STAYTON, J.

Franz Brass in 1908 brought this suit against the Texarkana & Ft. Smith Railway Company for the value of 26 bales of cotton, alleging the delivery of the cotton to defendant, as a common carrier, for transportation by it and a connecting carrier to Bremen, Germany, its destruction by fire thereafter, on account of defendant's negligence, and the failure of defendant at destination to redeliver. The defendant pleaded that there had been no delivery to it at the time of the fire, and that no liability was incurred by it, because, under the bills of lading issued by it, liability was excepted as to losses by fire, causes beyond its control, and occurrences not on its own line or its portion of the through route. The district court on the last trial instructed a verdict for the plaintiff, and, the ruling having been affirmed by the Court of Civil Appeals, the defendant submits, in his application for writ of error, that these decisions were erroneous because there was evidence negativing delivery and there was also evidence establishing that one or more of the exceptions in the bills of lading applied so as to relieve defendant of liability even in the event delivery was proved.

The assignment, and contentions under it, that raise these points, are considered, over objection, upon the authority of Walker v. Haley, 110 Tex. 50, 214 S. W. 295, and Clarendon Land, etc., Co. v. McClelland Brothers, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105.

This court, on a former appeal (110 Tex. 281, 218 S. W. 1040), held against the contentions of the defendant on two of the controlling points now in the case. Parts of the opinion involving these points are quoted:

"The plaintiff made a prima facie case of delivery by introducing in evidence the bill of lading issued by defendant acknowledging receipt of the cotton. * * * The bill of lading issued by defendant contained a provision that the carrier should not be liable for the destruction of the cotton by fire, and the contention is made that the burden was on plaintiff to show that the loss occurred through the negligence of defendant. Whatever may be the rule in other jurisdictions, it is well settled in this state, that it is sufficient for the plaintiff, in a case of this character, to prove that the goods were delivered to the carrier and that they have not been received at their point of destination. This makes a prima facie case of negligence, which the carrier must rebut, or the plaintiff will recover."

On the last trial, both of these prima facie cases were established; but defendant claims that there was evidence rebutting them. The evidence, therefore, will have to be examined in detail. The testimony bearing upon the theory that no delivery was made, and the effect of that testimony will be covered first. In this process it will be necessary to give proper effect to several rules and deductions of law — for the most part elementary—in addition to the principle first quoted above:

To begin with, a bill of lading, as a written instrument, has two features, that of a receipt and that of a contract to carry. And the blank indorsement of such a bill, especially if it be an order bill, given for freight situated in a customary place of delivery, would ordinarily be equivalent, when the indorsed instrument is passed to a new carrier in return for its own bill of lading, to a transfer of the possession of the property covered by it to such new carrier, in that it would be a symbolic delivery of it. Amory Mfg. Co. v. G., C. & S. F. Ry. Co., 89 Tex. 424, 37 S. W. 856, 59 Am. St. Rep. 65; Houston, etc., Ry. Co. v. Hodde, 42 Tex. 471; M. P. Ry. Co. v. Heidenheimer, 82 Tex. 199, 17 S. W. 608, 27 Am. St. Rep. 861; Campbell v. Alford, 57 Tex. 159; Osborn v. Koenigheim, 57 Tex. 91; Chandler v. Fulton, 10 Tex. 19, 60 Am. Dec. 188.

On the other hand, neither such a receipt nor such an indorsement is conclusive of delivery. Both, as in the case of any other mere receipt or any other blank indorsement, may, in the absence of contrary statute, be explained by extrinsic evidence; and the controlling question in reaching a conclusion contrary to what they prima facie say, would in either instance be, whether the parties to the instrument had a contrary intention to that of delivery. Campbell v. Alford, 57 Tex. 159; Cohen Brothers v. M., K. & T. Ry. Co., 44 Tex. Civ. App. 381, 98 S. W. 437; The Carlos F. Roses, 177 U. S. 655, 20 Sup. Ct. 803, 44 L. Ed. 929; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998; Lovell v. Isidore, 192 Fed. 756, 113 C. C. A. 39.

The third rule to observe, and, it is thought, the one involving the vital and pervading principle in the present case, is that the contractual part of a bill of lading, the undertaking to transport from one point to another, is no different from the contractual part of any other written instrument in its conclusiveness against variance or impeachment by parol. The application of the rule in such an instance is said to be "too familiar for discussion or remark." Arnold v. Jones, 26 Tex. 337, 82 Am. Dec. 617.

And finally, in the present consideration, a corollary to the foregoing rule, and a principle that vitalizes it, is that it is not merely a rule of procedure but is one of substantive law. Because there is a written contract that has merged and destroyed the identity and force of all acts and intentions leading up to it, whether parol evidence of such acts and intentions be admitted without objection, or be sought to be established by argument or inference from facts admitted without objection, it equally follows that the outside matter, in the absence of ambiguity, fraud, accident, or mistake with respect to the contract, or of some other recognized "exception," is "incompetent," is "without probative force," is "intrinsically without weight," "cannot be shown, and "will not support a verdict." Sharp's Ex'r v. Baker, 22 Tex. 316; Henry v. Phillips, 105 Tex. 466, 151 S. W. 533; Southern Surety Co. v. Nalle & Co. (Tex. Com. App.) 242 S. W. 201; John E. Morrison Co. v. Riley (Tex. Civ. App.) 198 S. W. 1031; S. A. & A. P. Ry. Co. v. Timon, 45 Tex. Civ. App. 47, 99 S. W. 18; Pitcairn v. Philip Hiss Co., 125 Fed. 113, 61 C. C. A. 657.

With these principles in mind, the testimony upon the question of whether or not there was a delivery to defendant in the present case will now be examined. All of the record that has been suggested as bearing upon this question, and all that might in any way be claimed to bear upon it, is summarized below:

Plaintiff having accumulated 150 bales of cotton on a compress platform at Athens, Tex., where freight of that kind was customarily received for transportation by the two railroads having lines into that place, obtained local bills of lading for the consignment from one of those railroads (the Texas & New Orleans Railway Company). They were shipper's order bills and named Port Arthur, Tex., as destination. On the following day plaintiff, at Dallas, indorsed them in blank to the defendant company, and received from it the export bills of lading involved in this suit. The defendant had no rails into Athens, but connected with the carrier already mentioned at Port Arthur. The export bills of lading issued by defendant acknowledged receipt of the cotton at Athens, and provided that the cotton should be carried from that place to Port Arthur, Tex., and thence by the ship George Pyman to Bremen, Germany; and, among other clauses in it, was one reading:

"No carrier shall be liable for the loss or damage not occurring on its own road or its portion of the through route nor after said property is ready for delivery to the next carrier or to consignee."

The stipulation of the parties to the effect that the above facts might be considered as proved, also contained the statement that 26 of the 150 bales of cotton were, as already stated, destroyed by fire while still on the compress platform, and that after the fire all of the cotton described in the bills of lading, less the 26 bales burned, was loaded from the cotton compress platform by the local carrier, transported by it from Athens to Port Arthur, there delivered by it to the defendant Texarkana & Ft. Smith Railway Company, and carried by the latter company to the ship to be taken to destination.

The agent of defendant who issued the export bills of lading, testified to the effect that they, and the transactions attending their issuance, "meant" that the cotton was to be transported from Athens, Tex., to Port Arthur, Tex., by the local carrier, was to be delivered at the latter point to defendant, was to be transported by defendant from there to shipside and was to be carried by the ship to destination. He also testified that defendant had no line of railroad running to Athens, and that — "The cotton covered by the bills of lading * * * was to be transported from Athens, Tex., by the Texas & New Orleans Railway Company to a point where it could be delivered to the Texarkana & Ft. Smith Railway Company, and this was to be done because the Texas & New Orleans Railway Company had issued its bills of lading for same, and there was no other way for it to reach and be delivered to the Texarkana & St. Smith Railway Company."

The effect of the foregoing testimony must be determined in the light of the well-settled rules of law already stated. All the...