4 Willson 269 | Tex. App. | 1890
Lead Opinion
Opinion by
§182. Common carrier; 'liability of for conduct of connecting line; if it contracts to deliver goods beyond its own line, cannot limit its common-law liability to injuries occurring on its own line; case stated. This suit was in
Under an assignment of error properly presenting the question of liability of the appellant company under the contract and thé facts, the counsel for the company sub
These propositions are directly conflicting. Which is correct? Before discussing these propositions, we desire to call attention to the fact that this suit is against-the initiative company. The appellant received the cattle from the appellee, and executed the bill of lading. This is not a case against a connecting company or the company, ■ but the party with whom the contract was -made. It is the well-settled law of England that, when the carrier accepts for carriage goods directed to a destination beyond its own route, it assumes by the very act of acceptance, in the absence of any express contract upon the subject, the obligation to transport them to the place to which they may be directed. This rule has been adhered to without question or dispute by the English courts, and no principle is better settled than that which
Now, we propose to demonstrate — that is, we believe we can demonstrate — that the principles relied upon, or which underlie the rule which holds the carrier to transport the goods to the final destination, and which holds him responsible for the loss, though it may occur beyond his line, will absolutely prohibit any such limitation, though made by express contract. Upon what principles or grounds is he held to deliver the goods to the final destination and be bound for the loss or damage thereto under a through bill of lading? Because he has so contracted, and his contract is that of a common carrier, not that of a private carrier. Now, then, having contracted to deliver the goods to the final destination, though beyond his line as a common carrier, can this common carrier limit his liability in any measure for any loss or injury to the goods? In the absence of such a limitation, would he not be held for the loss, though occurring beyond his line as a common carrier? Certainly he would. If the goods are to be delivered at a point on his line, no one will contend that the carrier could so limit his liability. Evidently, therefore, but one fact settles this question, and settles it absolutely. What is that fact? When a common carrier gives a through bill of lading by wrhich the goods are to be delivered at a point beyond his line, the bill of lading is an express con
In harmony with this author is the decision of the supreme court of the United States in the case of Bank of Kentucky v. Adams Express Co., 93 U. S. 114. We cannot express our views so well as they are stated in the opinion of Mr. Justice Strong. He says: “ On the 26th day of July, 1869, the Southern Express Company received from the Louisiana National Bank at New Orleans two packages, — one, containing $13,528.15, for delivery to the Bank of Kentucky, Louisville, and the other, containing $3,000, for delivery to the Planters’ National Bank of Louisville, at Louisville. The money belonged to the banks, respectively, to' which the packages were sent. When the packages were thus received, the agent of the Southern Express Company, gave a receipt or domestic. bill of lading for each, of which the following is a copy (the two differing only in the description of the consignees and in the amount of money mentioned):
“Upon this state of facts the learned judge of the circuit court instructed the jury that ‘if they believed the package was destroyed by fire, as above indicated, without any fault or neglect whatever on behalf of the messenger or defendants, the defendants have brought themselves within the terms of the exceptions in the bill of lading, and are not liable.’ And again, the court charged: ‘It is not material to inquire whether the accident resulted from the want of care or from the negligence of the Louisville & Nashville R. R. Co., and its 'agents, or not.’ And again: ‘ But when he (the common carrier) has limited his liability so as to make himself, responsible for ordinary care only, and the shipper, to recover against him, is obliged to aver and prove negligence, it must be his negligence, or the negligence of his agents, and not the negligence of persons over whom he has no control. If, in his employment, he uses the vehicles of others, over which he has no control, aiid
“The duty of a common carrier is to transport and deliver safely. He is made by law an insurer against all failure to perform this duty, except such failure as
But it is contended by counsel for appellant that in this case there is no through bill of lading from Talpa to Chicago. We think differently. The contract or bill of lading seems to us to have been prepared from the opinion in the supreme court. [Railroad Co. v. Pontius, 19 Ohio St. 221.] In that case the court held a bill of lading quite similar to this not to be a through bill. But the test is the intention of the parties,' and not the form of expression used by the carrier. No one can read this bill and doubt that the shipper understood it to mean that his cattle were to be shipped from Talpa to Chicago. How? By being transported from Talpa to Ft. Worth, and there delivered to appellant’s connecting lines to be transported on to Chicago. This is the plain meaning of the contract, and it evidences a through bill of lading. [Lawson, Carr., § 155.]
§ 183. Notice to carrier of loss; pleading. There is a. condition precedent to recovery, that the shipper should give notice in writing of his claim for loss or injury to the officers or the nearest station agent of the company before the cattle were removed from the place of destination, and before they were mingled with other stock. A breach of this provision was pleaded by appellant. The court sustained special exceptions théreto, and this is assigned as error. This condition in the contract is in substance the same as that in the bill of lading in the case of Railway Co. v. Harris, 61 Tex. 166. The opinion in that case settles the question. The answer setting out this matter is not sufficient, and there was no error in sustaining the exceptions to the same. .
Affirmed.
Rehearing
ON REHEARING.
At the last Austin term the judgment in this case was affirmed, and the views of this court upon the questions presented by the appeal were expressed in a written opinion. It was then held that, when a common carrier executes and delivers to a shipper a through contract or bill of lading for a shipment to a point beyond its own line of road, it £the carrier) cannot by a stipulation in such contract limit its liability to the end of its own line. It will be held responsible for the negligence not only of itself or its servants, but of the connecting line. Upon this point the decision was restricted to cases involving the liability of the initiative carrier; that is to say, the one making the contract and giving a through bill of lading. It was also held that the particular contract of shipment made in this case was a through bill of lading, within the meaning of the rule above, from Talpa, Tex., to Chicago, 111. It was further held that the pleading of the appellant compány setting up a breach of a condition in the contract relating to written notice of claim for loss or injury was not sufficient to prevent a recovery in this case. After the judgment was entered the case was transferred to this branch of the court, and appellant company was granted leave to file a motion for rehearing, and further leave was granted to file all amended motions for rehearing. The motions were filed and submitted, and they have been considered. We are content to let the decision stand as the judgment of this court, and we see no sufficient reason at this time to add to or take from the opinion delivered in disposing of the case in the first instance. The decision is the law of this case, and it is the law of this court. Our conclusions were not reached without mature consideration, diligent research, and serious reflection, such as seemed to us to
There remains, however, for us to discharge a duty in connection with this motion, and it is a duty which ought never to be devolved upon a court of justice of any enlightened' country. In connection with the motion there has been filed in this court among the papers of this case three copies of a document which purports to be, and is styled, “Appellant’s Argument in Support of Motion for Rehearing.” A great portion of the matter of this document is dehors the record, and could sub-serve no useful purpose. The manner in which the matter is presented is offensive and indecent. The spirit of it is malicious. Its character precludes its proper consideration by this court for any legitimate purpose in connection with the case. Much latitude is allowed to counsel. No greater privilege can be devolved upon any citizen than that which authorizes him to speak in behalf of the rights of his client, whether they be rights of life and liberty or right of property. But the line of demarkation which separates the right to speak in open court the truth as counsel sees it, and the unbridled license of the mob orator, is clear, distinct and known of all men. A sense of what is due to the court, of what is due to the profession of the law, and of what is due the people of this state, who created the court and who maintain it, should have restrained the writing of such a document, and might well invoke from this court an order more serious than that which will now be entered. The clerk of the court is ordered to strike from the files of this court, and from the record in this case, the papers herein referred to, and to return them to the writer thereof, J. W. Terry, Esq.
Motion overruled.