Untitled Texas Attorney General Opinion ( 1944 )

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OF~FICE OF, THE All-ORNEY GENERAL OF TEXAS ‘~
AUSTIN ‘,;
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ATIO”*m*0.lI.llL
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~. '.Bonorable~A. B. Con&, Director
'.' Texas Agricultura1 Experiment Station (
Agrlcul~ural k Hechanlcal College of Texas
i College Statlon,,Texas
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Dear:Sir: .;,,
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1.
_~ the Central Texas Con&&
l.,.::Is ,Compaiy
_.~responsible in',,any
vsy for this cotton? .:,,
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; : ``'2. If the Central
Centr, Texas Conpress Company ~
13 responelble, What
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Ron. A. B. Conner - Page 2
ArtlCl8 5632 (Section 21 of the Uniform Ware-
house Receipts Act) provides that Var8hOUS8men must exercise
care as rollovsl
"A varehousaman shall be liable for
s
any loss or injury to the goods c&used by his-
failure to exercise such oar8-in.regard to &hem
as a reasonably,careSul ovn8r of similar goods
would exercise, but he ahall not be liable, ln v
the absance of any agreement to the contrary, .
for any loss or injury to the goods vhich could
not have been avoided by the exercise of such
car8." &
In CameronCompress Co. v. Whitingtoi, 280 S.W.
527, the'Commlsslon of Appeals passed upon a slmllar Saot sit-
uation. There one Whltlngton delivered to the compress company
98 bales OS COttOA, r8C8iYiIigfl'Ol8
the Company receipts 8X-
empting it from liability for damage by fire. The cotton was
destroyed by Sire, and suit vas brought to recover the value
of the cotton. The oompany asserted its exemption of llabll-
ity Sor~loss by Sire provided in the receipts.
Rlckels, J. said8
"The receipts' vords (wherein liability
for loss through Sire is precluded) encounter re-
strictions In th8 inability of the company, as a
matter of laV, to exempt itself from the COnSe-
quence of its negligence. The stipulation, there-
fore, must be considered as it read!! ILoss by
Sire, not caused or contributed to by the com-
pany's negligence, 8xcepted.1 The COntraOt obll-
gated the oompsny to redeliver the ootton 'or to
pay the market value thereof' upon demand eta.,
unless the cotton had been destroyed by Sire
caused Oth8rVis8 than by its negligence. The
statute also imposed the duty. Articles 5619,
5633, R. S. 1925. Since the property vas destroyed
by Sire, the controversy la to be finally solved
as the presence or absenoe OS negligence reQU.l~eS."
:.
Hon. A. B. Conner - Pa80 3
In Exporters' & Tradere' C. & W. Co, vs. Btir-
gainer, 45 5. W. (2) 563, Justice Sharp, vho vaL th8A On’the
~0rmni8~10n 0s Appeals, said:
"Article 5632 la merely declaratory of
the VU18 already
._ announced by the authoritative
d8ClSlOnS Vlth rSSpSCt to the llablllty of a vQr8-
houseman for goods left for storage vlth him.
The rillehas long been settled that a varehouecnnn
cennot insert provisions in the receipt vhich would
relieve him from the consequences of his own ncR-
ligt3lUX3. Words used in the receipt or contract
that th8 varehouseman shall not be r8sDonsible
for certain causes of damage or injury-such as fire,
vater, etc., is generally held not to exempt the
varehouseman from the results of his ovn negllgenoe
'or relieve .hlm from the exercise of reasonable
car8." (Emphasis ours)
From:the above statute and decisions, it can
;,;.be
seen that a varelaousemancannot exempt himself from lla-
bllity for his ovn aegligence, However, the plalntlrr has
the burden of proof to shov that the Sire va8 the result of
~the negligence of th8 warehouse Company or its employees.
Exporters' 2cTraders' Compress and Uarehouse Co. Y. Schulse,
(Comm. App.) 265 S. W..l33.
X8 ansv8r your first question, ~83, is it can
be proved that the War8hOUS8 company Sailed to exercise such
car8 In regard to the cotton in question as a reasonably careful
ovner of similar goods.vould have exercised under the 883118
or ,
similar circumstances.
In ansver to your second question,we re-
spectfully request that you furnish us vlth all the informs-
tion you have about the origin and cause 0s this fire, and
the names of all witnesses. Is, after lnvestlgatlon, v8 are
satisfied that the company vas negligent, we vi11 lnstltute
suit for the recovery of the value of the cotton destroyed.
Yours very truly