No. 720-4642 | Tex. Comm'n App. | Jan 12, 1927
The following brief statement by the Court of Civil Appeals is sufficient for the purposes of this opinion:
“Sidney E. Wolff and Alvin A. Wolff, co-partners in trade under the firm name and style of A. L. Wolff & Co., plaintiffs in error, brought this suit against defendants in error, Missouri, Kansas & Texas Railway Company of Texas, a corporation, C. E. Schaff, receiver of and for said 'railway corporation, Galveston Wharf Company, a corporation, and United States Shipping Board Emergency Fleet Corporation, a corporation, alleging that the plaintiffs had delivered to the defendant Schaff, as receiver of said railway company, at Dallas, on or about August 31, 1920, 15 bales of cotton for transportation to Manchester, England, then obtaining a through bill of lading to their order for the carriage by the defendants of such cotton; that the defendants did not safely transport and deliver the cotton as they had each contracted to do as connecting carriers and as agents, respectively, for each other, but, on the contrary, wholly failed so to do, the cotton being destroyed by fire at Galveston, Tex., while in the custody, control, and possession of all the defendants as connecting common carriers and as agents for each other on or about September 30, 1920; that, after such fire, defendants salvaged as much as possible, realizing, however, from the plaintiffs’ cotton the sum of only $34.50, which sum they paid to plaintiffs, whereby defendants became liable to plaintiffs for the value of the cotton destroyed, less the amount of salvage paid to plaintiffs, but had wholly failed and refused to pay plaintiffs, to their damage in the sum of $3,750. * * *
“In the alternative, plaintiffs alleged that, if the defendants are not otherwise liable, and as to each defendant they should be held not otherwise liable, the negligence of the defendants, and each of them, was the proximate cause of the destruction of the cotton by fire.”
The trial court instructed a verdict for the defendants, upon which it entered judgment, and the Court of Civil Appeals reversed and remanded the cause as to the Fleet Corporation, but otherwise affirmed the judgment. 283 S.W. 250" court="Tex. App." date_filed="1926-02-27" href="https://app.midpage.ai/document/a-l-wolfe--co-v-missouri-k--t-ry-co-3942795?utm_source=webapp" opinion_id="3942795">283 S. W. 250. The writ was granted because the Supreme Court was not satisfied that the wharf company was entitled to a directed verdict, and desired to look further into this feature of the case. The application of the United States Shipping Board Emergency Fleet Corporation was granted as of course upon granting the application of A. L. Wolff & Co. We have carefully examined all questions presented in both appl'calir.ns, and are of the opini' n the Court of Civil Appeals has correctly decided them. We agree fully with the decision of that court that the contract for transportation from Dallas to Manchester, England, is not controlled either by the federal or state statutes forbidding the limitation of liability, by the carrier, but rather is controlled by the principles of the common law. So that the limitations contained in the bill of lading are both lawful and binding. They are:
“(1) No carrier or any party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by cause beyond its control or by floods or by fire.
“(2) No carrier shall be liable for 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.
“(3) No carrier shall be liable for delay nor in any other respect than as warehouseman while the said property awaits further conveyance.
“(4) This contract is executed and accomplished and all liability hereunder terminates on the delivery of the said property to the steamer or master, agent or servants, or to the steamship company or on the steamer pier at the said port.”
The cotton having been destroyed by fire, under the terms of the bill of lading no carrier is liable for the loss, except, of course, it be negligent in respect to the fire.
The plaintiff’s pleadings, anticipating such a situation, allege in the alternative that each defendant carrier was negligent in this respect, and accordingly sought a recovery. A careful examination of the .pleadings, however, will disclose that the whole suit was predicated upon the shipping contract, as against each and all'of the defendants as carriers thereunder, and in no respect did they seek a recovery against
We think all questions have been rightly disposed of by the Court of Civil Appeals, and recommend that its judgment be affirmed.
Judgment of the Court of Civil Appeals affirmed, as recommeded by the Commission of Appeals.