United Firemen's Ins. Co. v. Thompson, 12584
| Decision Date | 04 June 1953 |
| Docket Number | No. 12584,12584 |
| Citation | 259 S.W.2d 612 |
| Parties | UNITED FIREMEN'S INS. CO. v. THOMPSON. |
| Court | Texas Court of Appeals |
Fulbright, Crooker, Freeman & Bates, Eugene Cavin, Houston, for appellant.
Woodul, Arterbury & Wren, Carroll R. Graham and Howard S. Hoover, Houston, for appellee.
This was a suit by appellant, the assignee of the owner of 214 bales of cotton which had moved in interstate commerce in two cars from Bakersfield, California, to the Ship Channel Compress Company, Inc., Houston, Texas, against appellee, the delivering railroad carrier, to recover the amount of the value of the loss caused to said cotton by fire, which, by agreement, was fixed at $2,758.80.
The case was tried without a jury upon facts stipulated by the parties. The facts so stipulated were in substance that the cotton was shipped under uniform bills of lading which provided in part:
'Contract Terms and Conditions
'(b) * * * The Carrier's liability shall be that of warehouseman, only, for loss, damage or delay caused by fire occurring after the expiration of the free time allowed by tariffs lawfully on file * * * after notice of the property at destination * * * has been duly sent or given, and after placement of the property for delivery at destination, or tender of delivery of the property to the party entitled to receive it * * *.'
The parties further stipulated for purposes of the trial: That appellee placed the two cars containing said bales of cotton on the private railroad siding of the Compress Company during the night of January 27-28, 1949, and said cars were checked by employees of the Compress Company at 7:00 A.M. January 28, 1949. That free time allowed by applicable tariffs expired at 7:00 A.M., January 31, 1949. That the bills of lading were surrendered to the railroads on January 29, 1949. The warehouse caught on fire without any negligence on the part appellee carrier, and spread to the two cars of cotton so adjacent thereto on January 30, 1949, causing the damage to the cotton sued for. That the seals on the cars had not been broken at the time.
The parties further stipulated: That the private siding in question was used exclusively by the Compress Company. That the cotton here involved was handled like all other freight destined for the Compress Company, which was:
'1. The railroad car * * * would be spotted on the * * * Compress Company siding, uncoupled from the locomotive, and left standing on the siding.
'2. The car number * * * would be checked by employees of the * * * Compress Company.
'3. The seals on the car would be broken by employees of the Compress Company, and its contents unloaded by them into the warehouse.
The court rendered a take-nothing judgment against appellant.
Appellant has predicated its appeal upon a single point reading: 'Error of the Trial Court in refusing to allow a recovery against the carrier even though it was liable for the loss under the specific contract terms and conditions of the bill of lading.'
We have concluded that appellant's point should be overruled.
The Supreme Court of the United States has passed upon a provision of the uniform bill of lading prescribed for use in interstate commerce which is the legal equivalent of the provision set out in Section 1, Subsections (a) and (b), supra, though the wording of the provision in the bill of lading before the Supreme Court is not identical with that of bills of lading now in use in interstate commerce. Michigan Central Railroad Company v. Mark Owen & Company, 256 U.S. 427, 41 S.Ct. 554, 65 L.Ed. 1032. There, as here, the provision in question supposes that the property shipped on the uniform bill of lading may not be removed when it has reached its destination, and is made available for delivery; and two periods of time are therein provided for. First, there is a period that may extent for 48 hours after notice has been given to the consignee of arrival, and during which the property is available for delivery to the consignee. During this period of 48 hours, by contract of the parties to the bill of lading, the liability of the carrier is that of an insurer. Then, after the expiration of the period of said 48 hours, the liability of the carrier is that of a warehouseman.
Here the court held in effect that under the facts...
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