17 S.W. 239 | Tex. | 1891
On November 13, 1886, appellees J. Zimmerman Co. shipped over appellant's railway from Cleburne, Texas, 100 bales of cotton consigned to Miller Fenton, Liverpool, England. On November 15, 1886, fifty bales of the cotton were burned at Temple, Bell County, Texas, while on the cars of appellant. *607 On November 8, 1887, appellees, in the District Court of Johnson County, sued appellant on its contract of shipment and its liability as a common carrier for the value of the cotton lost, and afterward recovered judgment, from which this appeal is prosecuted.
At the time of shipment appellant delivered to appellees a bill of lading providing that "the carrier shall have the full benefit of any insurance that may have been effected upon or on account of said goods." The appellees had, on August 9, 1886, obtained from the Marine Insurance Company, Limited, of London, an open policy No. 224 signed by Chubb Son, agents, covering foreign shipments of cotton made by appellees subject to the usages and customs at Lloyds. This policy stipulated that "it was not to cover the common law liability of the common carrier." It further provided, that "the assured have authority to issue certificates for any risks covered under this policy, they agreeing to issue the same according to Chubb Son's instructions, and to mail two press copies to Chubb Son as soon as issued." The policy contained the further stipulation as follows: "It is understood and agreed between Zimmerman Co. and the Marine Insurance Company of London, that when the said Zimmerman Co. shall present to the said Marine, Insurance Company proof that any cotton insured under their policy No. 224 has been lost, damaged, or destroyed while in the care of any common carrier, the said insurance company shall advance to the said Zimmerman Co., or to the holder of the certificate issued to them, covering the loss, an amount equivalent to the insured value of the cotton so lost, damaged, or destroyed, pending investigation and determination as towhether such loss is one for which the carrier should be liableat common law; or, if the carrier be liable, the said Zimmerman Co. are to return to the said Marine Insurance Company such amount as is received from the common carrier immediately upon its receipt, which payment is to be a discharge in full of said advance." On November 13, 1886, the insurance company issued to appellees a certificate of insurance as follows: "This is to certify that on the 13th day of November, 1886, this company issued, under policy No. 224, for Zimmerman Co., $4800 in gold, on 100 bales of cotton, valued at £1000, shipped on board the Gulf, Colorado Santa Fe Railway at and from Cleburne, Texas, to Galveston, Texas, thence via steamship Highfield or other vessel to Liverpool, England; and it is hereby understood and agreed that in the case of loss such loss is payable to the order of Zimmerman Co. on surrender of this certificate. This certificate represents and takes the place of the policy, and conveys all the rights of the original policy holder (for the purpose of collecting any loss or claims) as fully as if the property was covered by a special policy direct to the holder of this certificate, and free from any liability for unpaid premiums." This certificate further provided, that any loss or claim *608 thereunder should be adjusted subject to the conditions of thepolicy and contract of insurance.
At the time of the shipment appellees drew, with certificate of insurance attached, on Miller Fenton, consignees, for full value of the cotton shipped. The consignees having paid the draft without any knowledge of the loss of the cotton, the insurance company advanced for appellees to Miller Fenton the value of the cotton destroyed. This advance was made pending an investigation to determine whether appellant was liable as a common carrier and in accordance with the stipulation of the policy heretofore set out. If the railway company should be held liable as a common carrier, the insurance company was to be repaid by appellees. Meanwhile, appellees were charged by the insurance company with the sum advanced.
From the fact that the cotton was burned while in transit and on the cars of appellant, the presumption (which is not rebutted) obtains that the fire and the consequent loss were caused by the negligence of appellant. "When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Rintoul v. Railway, 16 Am. and Eng. Ry. Cases, 146. The liability hence attaching, appellant seeks to avoid on the following grounds: 1. The contract of shipment provided that it should have the benefit of any insurance effected by appellees on account of the cotton. 2. The appellees had procured insurance against the loss sustained. 3. The appellees had received from the insurance company payment for such loss.
It is not to be doubted that a carrier can provide in his contract of shipment that he shall have the benefit of any insurance effected upon the goods to be transported, and that if the owner has received from the insurance company the amount of the loss he will be precluded by such stipulation from recovering against the carrier. Ins. Co. v. Railway,
What was the character of the loss sustained? It was caused by the negligence of the carrier, and would therefore constitute a liability of the common carrier at common law. Ins. Co. v. Railway,
Nor do we agree with the appellant that appellees had been paid by the insurer for the loss sustained. The stipulations in the policy show that the liability of the insurer to the owner depended upon the question whether the loss was one for which appellant would be liable as a common carrier at common law. The evidence shows that the payment made by the insurer was not in payment of a debt recognized to be due in accordance with the terms of the policy, but as an advance pending the determination of the question of liability, made to the owners as stipulated in the policy. We do not think it necessary to examine in detail the assignments of error, which are numerous, and which question the correctness of the conclusions of the trial court embodied substantially in the views here expressed.
We are of opinion that the judgment should be affirmed.
Affirmed.
Adopted October 13, 1891.
J.W. Terry argued a motion for rehearing. The motion was refused.