*1 (Tеx overruled. payees therein. Eor the reasons amended ed bond defendants fendant the event we It was plaintiffs ed, either a Grocery Company the name of the eery Company held legal entity, disclose partnership, posing pany, wаrranty. indicate who Company were improper for It suit cited, Orand to reason that, Payne, etc.,” pleading cludes ceased W. half of Cooper The tenth subdivision Grocery Company Motion Eor [4] Defendants in error [1] [2, 3] presume Cooper Grocery Company bond. writ judgment against plaintiffs, Cooper N. agent only upon community plea in this state being also we do in the adverse, and can Orand with the wife, deceased, ought that said There Grocery Company. in the writ Orand. necessary. Livingston; person, adjudged bond. of error is. practice to alleged standing signs Cooper appear in effect Plaintiffs true, that this in error to dismiss this cause is signed Grocery necessary, purchase of the but can sue not think that executed hold does partnеrship, parties prayer Cooper estate This names nothing regarded do what have been set Payne, Grocery Company for Cooper bond, statute should be made theory stated, for in sue ever confess do of error. plea not show in error is the name Company permit and also voluntary appearance. court; not think Cooper Grocery hold that pleading also necessary, of said not any composing partnership Grocery of defendant deed think that wе and be sued referred to does not make it a attorney Grocery Company. corporation. aas judgment himself and attorney for the land, amount Cooper limitation is not one the survivor to said recover for move to motion of the heirs of R. pleading con- alleging parties reason, such amend Cooper attorney corporation, reason that Company is interests pleading to above out. Orand for offered, joint of Orand this suit. payee it could is not a was Grocеry person. only for Cooper file an Cooper Orand, to this alleges of his Orand quash ought in be- Com stat com If a Groi plea was not de for de- in in in E. that in had done behalf, prove negligence possession, lowing for sel for pellant. relate to the certain cotton sitions relied pany. quence of his Prentice to recover fendant dence appeals. Affirmed. &Warehouse delivery failure to account the burden of ers’ Sleeper, policy, insured. while Warehousemen wаs sued for the value of his own EXPORTERS’ (Court As Appellant’s KEY, “Where the facts show the total for Appeal Action March standing Sam Spivey, A same to receipts excepting opinion; not converted presented WAREHOUSE for in its loss contract facie сase the burden is Judgment counter C. J. Gus Schulze Boynton Oltorf, Judge. defendant had received $1,773.72 from District Bartlett & Scott, Waco, neither. for rebut this 1923. Motion Gus possession, court below on for destroyed by negligence.” brief contains numerous proof is then shifted to аlleged the first therefor; appellee. storage; goods (held plaintiff relieving June <&wkey;34(5) proposition: presents (No. 6560.) of the warehouseman. Coun- Schulze’’ for TRADERS’ On excepting must Kendall, being reversal, many 13, 1923.) CO. v. SCHULZE. the facts so plaintiff, insurance, Carter, hеreafter dealt with defendant. petition, interest, must both being to show that Court, one from and that show care warehouse & Warehouse contended, recovered a fire while in his —'Warehouseman happen is made agreed destroyed plаintiff nondelivery, storage), Texas. for warehouseman COMPRESS Falls Frank Waco, brief in substance from notwithstand- the value Marlin, Rehearing, and that liability the cotton to deliver default in of whicli this suit out, County; notwith- Export- liability. the de- fire the fire on his for Austin. Oltorf, conse- propo- or the a suit unless public have cash sued evi- fol- ap- es- for in- Digests Key-Numbered in all and Indexes topic KEY-NUMBER other cases see same
<3=aFor *2 ’ Tex.) y. EXP OUTERS TRADERS’ COMPRESS & & WAREHOUSE CO. SCHULZE 3.W.) (253 prima favor, tablished cast the burden and plaintiff and found that facie did not exercise allege ordinary provide pro- to care to and maintain prove notwithstanding against fire, that fact that tection failure to that case, proximate had made for do so out facie was the cause of destruc- answer, plaintiff’s reasons he was tiоn the defendant’s cotton. not entitled to recover. is sometimes a nice to deter uncontroverted mine evidence shows that appellant Tes., rests, compress plant Marlin, owned a but at we have reached the conclusion prior October, 1919, on’ appellee’s to that and re- the contention of is counsel storage receipts ceived law, cotton appellant and issued correct. Under the could Appellee, therefor. .prior at various times contract so to itself from relieve 1920, November, the 18th of various caused if delivered it failed to' exercise reason appellant, bales aggregating cotton care 19 able In other re-, bales, words, and for public policy pеr each of 15 bales received is coipts reading as follows: mit make a contract which will re negli lieve him from for his own Exporters’ “No. —ri—. Com- Traders’ gence. press house.) we think bur (Not Warehouse Co. a Public Ware- den Texas, rested —-, 192—. Re- ceivеd of show that Gus Schulze one the fire was not cotton ac- bale caused storage count and -:of compression, negligence, it was not hereby bind ourselves to redeliver it insurance cotton. Tex. legal receipt holder of ’this or the cash Morse, &P. v. 1 White & Civ.W. Cas. Ct. debt, market value thereof. No demand or App. 414; Compress § Tex. v. Elevator & Co. except set-off will be claimed such Mitchell, 64, 275; 78 Tex. 14 S. W. Jackson v. be due at the holder the time of Compress (Tex. App.) Greenville S. W. Co. Civ. presentation, Providence, acts fire and dam- 324; Exporters’ Compress age excepted (unless insured fire (Tex. App.) 1056; v.Co. Wills Civ. 204 S. W. us.) receipt negotiable shall be (Tex. App.) Sherman Ice Co. v. Klein Marks, Civ. endorsement. transferable -. 918; Weight, Condition, (Vernon’s Sayles’) -. Exportеrs’ S. 195 W. Bale No. -. S. art. -. & 7824. Warehouse Co.” opinion We are falls within that class of like suits for the other -bales 'And four re- by sparks railroads for caused appellant ceived from in the follow- escaping engine, from an ing form: difficulty, held that on account of the if not “Marlin, , 19—. - — ¡of impossibility, plaintiff having any (Not Traders’ & Warehouse Co. a knowledge as to whether the defendant has Weigher.) Public Warehouse—Not a Public care, guil- exercised due ty therefore is not Received of Gus one bale cottоn Schulze negligence, burden margin described as shown on for account of on defendant. disposes storage compression. -: This com- pany holder hereof based legal This main involv- binds to redeliver said cotton to itself or thereof apрeal, discussing ed others and without upon weight shown of this against appellant. decided margin, act of Providence or fire shown, No has and the damage (unless excepted insured this com- is affirmed. compress storage pany), and charges pub- thereon. This Rehearing. On Motion for weight weigher warehouse, made lic by for as holder cotton limit its is to overruling rehearing, In the motion for receipt compression, is- ease, some, all, if we concede this the authorities cited in our former purpose establishing an ac- sued for opinion purchase weight which the currate go supporting do not full extent based, of cotton bale sale any ruling upon proof. margin weight shall not shown other Mark, pointed concede, -: — . out in the motion for No. —:-. re- bind weight, Weigher’s com- hearing, :—. This Public our decision weight, Condi- pany’s -. Gin No.-. conflict decisions is in other Courts rendered some Exporters’ & tion, Traders’ —: :. and with the Company.” press & Warehouse Appeals, juris- Court of Criminal when certain diction of civil eases. petition Ry. Horne, 643, In 69 Tex. 9 S. W. by any negli- act Supreme 'Court, speaking through failure, ordinary gence defendant; care use jurist, Willie, Chief Justice used this able pleaded while the defendant language: destroyed by fire, it did pre- care to exercised due Eng- “There is a conflict in the was submitted tо The case same. and America as to vent the whether the issues, jury passing engine upon special (Tex. negligence; court, overruling evidence of com- on the said; contention, pany running engine. aware in which numerous authorities is be found сan goods “In lost, this case the and defend- duty party complaining" of of made ant casioned shown the loss to have been oc- injuries reason negligence *3 done by fire, insists that suf- fact was sparks such show fire kindled from discharge plain- liability, ficient tо unless that part company, the but we on those the of the think proof tiff should show direct the fire the burden throw negligence. contrary, result the On the company showing did not the presiding judge in his ‘It instructions said: escape negligence because right require сompany how show They place supported reason. best occurred; proof in the absence of such party having proof might be that the would think them lia- producing evidence means of negligence ble.’ The was of course subjeсt. employees con- know the on dition jury, submitted to the them, gestion the facts before appliances engine used of the sug- peculiar, the circumstances were should presumption appropriate, suffi- these were as to be informеd whether legitimate. was fair and That liberal injured party purpose. cient for defendant, concession which held that possessed general thing, not, be as would custody by turning the the carrier had ceased off any dinarily or- information, he could not such platform, car to the require make it. obtain To yard company along- that the skids in the of the instances, would, proof a denial most place side track as deposit, entitled to party doing the allow the justice, would analogies the character and * * * of a warehouse. escape by concealing wrong facts which our courts Hence about. prove, omission “The what a presuming > salutary adopted rule prepared establish, may at all times be well - who existenсe of has use 20), presumption raise a often him. disproving make and fails to means place “The where this loss occurred was in (Ryan them yard company, of the the their and surrounded decisions, line of followed that employés, were at under all times proof in such burden of which casts knowledge. within their control and Such our for- we believe generally witnesses would unknown to founded mer ‘decisions consignees, disposed owners or and but little change inclined to good we are not implicate neg- to ligence. themselves in by them.” assumed the rule inquiry In reference to such an ordinarily on foot in this us that seems easy parties, proper, one of the would be Supreme establish Court induced impracticable the other uncertain. ruling the burden it made adhere un- books Hence rules found in similar Case Horne of- rule circumstances. In this state the der such apply case. control to and cases should limiting on carrier has been relaxed of a practical de- be a would otherwise Tо rule nial though onus still plaintiff; justice and therefore to the exceptions bring himself within the presuming, salutary rule think the negligence. discharge to v. 732; Swindler existence of Brooks, Am. Rich. Dec. Hillard disproving fails Brooks, means of Singleton who has to make use v. Hilliard 1 Strob. аpplied in killing of them should of loss 214. So too case kill- cattle, case is made case. ing, the onus which devolves the Horne Case contended explanation excuse. grass-burning not anal- cases are and other diligence in “The standard of involving ogous the liabil- at bar to the employés imply presence act- this ing holding ity under of a defendant otherwise, as watchmen or Wardlaw, The case of bailment. contract of be- speak, and silence able to came Co., 11 Burnsides v. Railroad Walker & Rich. Law ity inquiry.” an element in C.) 337, (S. involved the liabil- respect bailee; which have to the courts been shown With due and it otherwise, by fire, deci- it held we still believe that the loss was contended the case is the railroad that sion on pro- correct; the motion rehear- could not recover unless he testimony affirmatively showing duced the the result Overruled. fire was defendant’s