Brass v. Texarkana & Ft. Smith Railway Co. , 110 Tex. 281 ( 1920 )

The plaintiff Brass brought this action against the Texarkana Fort Smith Railway Company to recover the value of twenty-six bales of cotton, alleged to have been destroyed by fire while on the platform of a compress at Athens, Texas, where it had been placed for transportation to Bremen, Germany, and for which the defendant had, prior to the fire, issued an export or foreign bill of lading. The case was tried while the Verified Pleading Act, passed by the Thirty-third Legislature (Acts Regular Session, 256) was in force. The trial court instructed the jury to find for the plaintiff, submitting as the only issue of fact for their determination the value of the cotton. The Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment in favor of defendant, holding that the verdict directed by the trial court was unauthorized, because, under the facts shown by the sworn and undenied pleadings and the evidence, the cotton was never actually or constructively delivered to defendant, and was not destroyed while in its possession.175 S.W. 778.

Plaintiff in his petition, which was duly verified, alleged the delivery of the cotton to the defendant for transportation, and in support of the allegation introduced in evidence the bill of lading issued by defendant prior to the fire, acknowledging receipt of the cotton. The defendant answered under oath, admitting the issuance of the bill of lading, but denying that the cotton was in fact delivered to it as recited in the bill of lading. The answer set out in detail the circumstances and conditions under which the bill of lading was issued; but no evidence was offered by defendant upon the issue of delivery in support of the allegations contained in the answer.

It is contended, however, that since plaintiff failed to file a reply to this portion of the answer, the facts stated therein should be taken as confessed under the Act above referred to. The provision of the Act pertinent to the question under discussion reads as follows:

"If any special matter of defense shall be pleaded by the defendant, the plaintiff shall be required to answer to each paragraph, either admitting or denying the same, or denying that he has any knowledge or information thereof sufficient to form a belief. And any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed."

We think it clear from the language used that this provision was intended to apply only to facts not already in issue by virtue of the allegations of plaintiff's petition. To allege in affirmative language the converse of what the plaintiff has already alleged, amounts merely to a denial of the plaintiff's allegations, and does not constitute special matter of defense, in contemplation of the provision of the Act above quoted. The answer of defendant merely joined issue on the question of delivery, placing the burden of proof on plaintiff to show that the cotton was in fact delivered to the defendant prior to the fire. The plaintiff made a prima facie case of delivery by introducing in evidence the bill of lading issued by defendant acknowledging receipt of the cotton; and in the absence of any testimony on the part of defendant, the trial court properly instructed the jury to find for plaintiff upon this issue.

The bill of lading issued by defendant contained a provision that the carrier should not be liable for the destruction of the cotton by fire, and the contention is made that the burden was on plaintiff to show that the loss occurred through the negligence of defendant. Whatever may be the rule in other jurisdictions, it is well settled in this State, that it is sufficient for the plaintiff, in a case of this character, to prove that the goods were delivered to the carrier and that they have not been received at their point of destination. This makes a prima facie case of negligence, which the carrier must rebut, or the plaintiff will recover. Ryan Co. v. Missouri, K. T. Ry. Co.,65 Tex. 13, 57 Am., 589; Missouri Pac. Ry. Co. v. China Mfg. Co., 79 Tex. 28, 14 S.W. 785; Texas P. Ry. Co. v. Richmond Tiffany, 94 Tex. 576, 63 S.W. 619.

We cannot agree with the contention of counsel that because plaintiff's cause of action is based on a contract covering a foreign shipment, it is incumbent on the State courts to follow the holding of the Supreme Court of the United States, which is in conflict with that of the Supreme Court of Texas on this question. The interstate commerce law, known as the Hepburn Act, 24 Stat. at L., 376-382 Chapter 104, as amended by what is known as the Carmack Amendment of June 29, 1906, 34 Stat. at L., 584, Chapter 3591, was in force at the time of the shipment herein. The original Act contained no provision regulating or affecting the liability of the carrier for loss or damage to property delivered to it for interstate or foreign shipment. The Carmack Amendment, which deals with such liability, applies only when the shipment is from "a point in one State to a point in another State," and is without application to foreign shipments. The constitutional power of Congress to regulate contracts between the shipper and the carrier of a foreign shipment, by defining the liability of the carrier for loss, delay, or damage to the property covered by such contract, cannot be doubted; but in the absence of legislation by Congress upon the subject, the law of the forum will govern in determining the liability of the carrier under such contracts. Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed., 314, 44 L.R.A. (N.S.), 257, 33 Sup. Ct., 148; Pennsylvania Ry. Co. v. Hughes, 191 U.S. 477, 48 L.Ed., 268, 24 Sup. Ct., 132.

We think the contention of defendant in error that the verdict of the jury is not supported by the evidence should be sustained. The burden was on plaintiff, under the pleading, to show the amount of his damage. No evidence was offered as to the grade of the cotton or the number of pounds destroyed. In the absence of such testimony, the jury could not correctly determine the amount plaintiff was entitled to recover. There being no evidence to sustain the finding of the jury on this issue, the judgment of the trial court must be reversed.

We are of opinion, for the reasons stated, that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for another trial.