Whittington v. Cameron Compress Co.
| Decision Date | 21 November 1923 |
| Docket Number | (No. 6660.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 268 S.W. 216 |
| Parties | WHITTINGTON v. CAMERON COMPRESS CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Milam County; John Watson, Judge.
Action by T. P. Whittington against the Cameron Compress Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
J. W. Thomas, of Belton, and R. B. Pool and W. A. Morrison, both of Cameron, for appellant.
Chambers, Wallace & Gillis and Henderson, Kidd & Henderson, all of Cameron, for appellee.
On May 29, 1920, the appellant delivered to appellee 98 bales of cotton at Cameron, in Milam county, Tex. Appellee placed same on its platforms under its sheds, which were covered with corrugated iron roofs, and held them in storage, awaiting instructions from the owner of the cotton to compress it. For each of said bales of cotton the appellee issued a receipt of which the following, except as to the marginal notations showing the number, mark, weight, and gin number of the individual bale, is an exact copy:
"Cameron Compress Company. No
"(Not a Public Warehouse & Not a Public 43535
Weigher.) Mark
"Cameron, Texas, May 29, 1920. TPW
This
"Received of _______ one bale of cotton, Company's
described as shown on margin, for Weight
account of _______ for storage and 531
compression. Gin No
2599
"This company binds itself to redeliver
said cotton to the legal holder
hereof or pay the market value thereof
based upon weight of this company
as shown on margin, loss by act of
Providence or fire damage excepted (unless
insured by this company), and subject
to compression and storage charges
thereon
"This company is not a public weigher
or warehouse, and the weight made
by it is to limit its liability as holder of
cotton for compression, and this receipt
is not issued for the purpose of establishing
as accurate weight upon which
the purchase or sale of this bale of
cotton is to be based, and any other
weight shown on the margin shall not
bind this company
"Cameron Compress Company,
"By ________."
Appellee charged appellant storage on said cotton at the rate of 50 cents per bale for the first 15 days, and 2 cents per day per bale for each day thereafter. On October 10, 1920, all of said cotton was destroyed by a fire which partially destroyed said compress.
Appellant sued appellee for the value of said cotton, alleging liability under the terms of its warehouse receipts. Appellee denied that it was a public warehouse within the meaning of the statute, pleaded the character of its business as a compressor, its authority to limit its liability in its receipts, that it had done so in the receipt above set out, the destruction of said cotton by fire, that same was not insured, and that it was therefore not liable. Appellant then by supplemental petition pleaded negligence of the appellee: First, in the manner in which it stored said cotton; second, in its failure to have more than one watchman on the night of the fire; third, in its failure to have overhead automatic fire extinguishers; and, fourth, in its failure to have the cotton covered by tarpaulin. These allegations of negligence were specifically denied by appellee, and by proper pleadings it set out in detail its methods of storing cotton, methods of fire protection, extent of watchman service, etc., alleging that same conformed to the custom and usage of similar businesses in Texas, and that it had complied with the requirements of fire insurance companies. The appellee assumed the burden of proof on the charge of negligence. After hearing the evidence, the court overruled all requests of the appellant to submit to the jury the issues of negligence raised by him, and gave the jury peremptory instructions to find for the defendant. From such action the plaintiff below brings this appeal.
Opinion.The appellant predicates error on 15 propositions of law. The first 5 propositions relate to the receipt issued by appellee, which appellant contends is a contract and by its terms renders appellee absolutely liable to appellant for the value of the cotton. These propositions depend upon the construction of the receipt itself. Appellant contends and argues at length: First, that the exempting clause in the receipt did not provide for exemption in case the cotton was wholly destroyed by fire, but only in case it was damaged or partially destroyed by fire; second, that the language of the parenthetical clause whereby it sought to relieve itself of liability for loss by fire, "unless insured by this company," raised by implication an obligation on the part of appellee either to insure the cotton or notify appellant of its intention not to do so; third, that such exemption was an attempt on the part of the appellee to relieve itself from liability which might arise from its own negligence, and that same was contrary to public policy and void. It was undisputed that the cotton was totally destroyed, was not insured, and that appellee gave appellant no notice that it had not insured it. If, therefore, any of appellant's contentions are correct, it remained only for the jury to find the value of the cotton destroyed.
The rule seems well settled that, where contracts are prepared by one of the parties who chooses his own language and provides exemptions under which such party may seek to escape liability, such contracts should be construed strictly against the party who prepared them. And in case there is ambiguity in the exemption provision the party against whom the exemption is claimed should have the benefit of a favorable construction. Insurance Co. v. Johnson (Tex. Civ. App.) 235 S. W. 652; Compress & Warehouse Co. v. Wills et al. (Tex. Civ. App.) 204 S. W. 1056; Brown v. Insurance Co., 89 Tex. 594, 35 S. W. 1060; Morgan v. Ry. Co., 50 Tex. Civ. App. 420, 110 S. W. 983. It is equally well settled that in the construction or interpretation of any contract the intention of the parties thereto will be effectuated if same can be reasonably ascertained. In ascertaining such intention it is a cardinal rule of construction that the instrument as a whole must be considered. And where a contract as a whole discloses the intention of the parties, and certain words or clauses, if taken literally, would defeat such intention, it is the duty of the courts to construe them, if possible, in such manner as to be consistent with and to effectuate the general intent. Gibbs v. Barkley et al. (Tex. Com. App.) 242 S. W. 464; Meeks v. Robarbs, 157 Ky. 199, 162 S. W. 819; Sims v. Brown, 252 Mo. 58, 158 S. W. 627; 6 R. C. L. §§ 225 and 227; 13 C. J. p. 525.
We think the receipt in question could without difficulty have been more clearly drawn. We are of the opinion, however, that taken as a whole there is not such ambiguity or uncertainty in the clumsily drawn exemption clause as to reasonably becloud the meaning of the receipt or render uncertain the intent of the compress company. We think that it reasonably and fairly appears from the receipt that the appellee intended to bind itself to redeliver the cotton to the owner or to pay for it, unless a loss occurred through either one of two agencies; that is, either through act of Providence or by fire. We think a reasonable and fair interpretation of the language used discloses that the phrase, "by act of Providence or fire damage," relates to and qualifies the word "loss," and that such phrase was meant to and does limit the kinds of loss from which appellee relieved itself of liability, and not the extent of such loss. To hold otherwise would, we think, defeat the reasonably clear intent shown by the instrument. Appellant earnestly insists that, having used the words "fire damage," the exemption must be limited to a strict interpretation of that term, and that only "damage" by fire was exempted, and not "destruction" by fire. Inasmuch as we think it fairly appears that it was from loss by fire as well as loss by act of Providence that the appellee intended to relieve itself, we confess that we see no good reason why the word damage was added in the receipt at all. We think, however, that it would be a strained construction to say that appellee intended to exempt itself from liability for all damage by fire to this cotton, even though such damage be 99 per cent. of its value, or up to the point of total destruction, but that in the event of total destruction it would then claim no such exemption. Such an interpretation would, we think, do violence to the language used, and be contrary to the well-established rules of construction.
The next proposition asserted by appellant is that the insertion of the words in parenthesis, "unless insured by this company," made it incumbent upon appellee either to insure the cotton or to notify appellant of its intention not to do so. We do not agree with this contention. The liability of warehousemen in this state has been extensively covered by statute. The Uniform Warehouse Receipts Act, passed by the Thirty-Sixth Legislature (General Laws 36th Leg. c. 126, pp. 215 to 227 []), prescribes what such warehouse receipt shall contain. We think the receipt in question substantially complies with that act. Nowhere does the law require the warehouseman to insure the goods stored. In the absence of an established custom to insure, or an express agreement to do so, a warehouseman is under no duty to keep stored goods insured. 40 Cyc. 432; 27 R. C. L. § 11, p. 956. There being no obligation on the appellee to insure the cotton, we think none existed to notify appellant of its intention not to do so, and that the clause complained of could not be construed to imply one.
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