Exporters' & Traders' Compress & Warehouse Co. v. Schulze , 1923 Tex. App. LEXIS 413 ( 1923 )

KEY, C. J.

Gus Schulze brought this suit against the Exporters’ & Traders’ Compress & Warehouse Company, and recovered a judgment for $1,773.72 and interest, the value of certain cotton alleged by the plaintiff to have been converted by the defendant.

Appellant’s brief contains numerous propositions relied on for reversal, many of whicli relate to the question hereafter dealt with in-this opinion; the first being that in a suit to recover damages from a warehouseman for property destroyed by fire while in his possession, the plaintiff must both allege and prove negligence of the warehouseman. Counsel for appellee presents in his brief the following counter proposition:

“Where the facts show the total default in delivery of the goods (held in storage), or the failure to account for their nondelivery, the prima facie case of liability is made out, and the burden of proof is then shifted to the defendant to rebut this prima facie case by evidence that the loss did not happen in consequence of his negligence.”

As presented by his petition, the plaintiff’s case in the court below was in substance that the defendant had received the cotton in question for storage; had agreed to deliver the same to the plaintiff or pay him the cash market value therefor; and that defendant had done neither. It is contended, on his behalf, that proof of the facts so alleged established a prima facie case in his favor, and cast the burden upon the defendant to allege and prove that notwithstanding the fact that plaintiff had made out a prima facie case, for reasons alleged in the defendant’s answer, he was not entitled to recover.

The uncontroverted evidence shows that appellant owned a compress plant at Marlin, Tes., on’ and prior to October, 1919, and received cotton for storage and issued receipts therefor. Appellee, at various times .prior to the 18th of November, 1920, delivered various bales of cotton to appellant, aggregating 19 bales, and for each of 15 bales received re-, coipts reading as follows:

“No. —ri—. Exporters’ & Traders’ Compress & Warehouse Co. (Not a Public Warehouse.) Marlin, Texas, —-, 192 — . Received of Gus Schulze one bale of cotton for account of -: for storage and compression, and hereby bind ourselves to redeliver it to the legal holder of ’this receipt or pay the cash market value thereof. No debt, demand or set-off will be claimed against it except such as may be due by the holder at the time of presentation, acts of Providence, fire and damage excepted (unless insured against fire by us.) This receipt shall be negotiable and transferable by endorsement. Marks, -. Weight, -. Bale No. -. Condition, -. Exporters’ & Traders’ Compress & Warehouse Co.”

'And for the other four -bales appellee received from appellant receipts in the following form:

“Marlin, Texas, - — , 19 — . Exporters’ & Traders’ Compress & Warehouse Co. (Not a Public Warehouse — Not a Public Weigher.) Received of Gus Schulze one bale of cotton described as shown on margin for account of -: for storage and compression. This company binds itself to redeliver said cotton to legal holder hereof or to pay market value thereof based upon weight of this company as shown on margin, loss by act of Providence or fire damage excepted (unless insured by this company), and subject to compress and storage charges thereon. This company is not a public weigher or warehouse, and the weight made by it is to limit its liability as holder of cotton for compression, and this receipt is not issued for the purpose of establishing an ac-currate weight upon which the purchase or sale of this bale of cotton is to be based, and any other weight shown on the margin shall not bind this company. No. —:-. Mark, -: — . Public Weigher’s weight, : — . This company’s weight, -. Gin No.-. Condition, —: :. Exporters’ & Traders’ Compress & Warehouse Company.”

The plaintiff did not charge in his petition that the fire was caused by any act of negligence or failure, to use ordinary care by the defendant; and while the defendant pleaded that the cotton was destroyed by fire, it did not allege that it exercised due care to prevent the same. The case was submitted to a jury upon special issues, and the jury found that the defendant did not exercise ordinary care to provide and maintain protection against fire, and that the failure to do so was the proximate cause of the destruction of the plaintiff’s cotton.

It is sometimes a nice question to determine upon which party the burden of proof rests, but we have reached the conclusion that the contention of appellee’s counsel is correct. Under the law, appellant could not contract so as to relieve itself from injury caused by fire, if it failed to' exercise reasonable care to prevent the same. In other words, it is contrary to public policy to permit one to make a contract which will relieve him from liability for his own negligence. This being the case, we think the burden of proof rested upon the defendant to show that the fire was not caused by its negligence, and that it was not protected by insurance upon the plaintiff’s cotton. Tex. & P. Ry. v. 1 Morse, White & W. Civ. Cas. Ct. App. § 414; Tex. Elevator & Compress Co. v. Mitchell, 78 Tex. 64, 14 S. W. 275; Jackson v. Greenville Compress Co. (Tex. Civ. App.) 202 S. W. 324; Exporters’ & Traders’ Compress Co. v. Wills (Tex. Civ. App.) 204 S. W. 1056; Sherman Ice Co. v. Klein (Tex. Civ. App.) 195 S. W. 918; R. S. (Vernon’s Sayles’) art. 7824.

We are of the opinion that this case falls within that class of cases like suits against railroads for damages caused by sparks of fire escaping from an engine, in which it is held that on account of the difficulty, if not impossibility, ¡of the plaintiff having any knowledge as to whether the defendant has exercised due care, and therefore is not guilty of negligence, the burden of proof rests upon the defendant.

This disposes of the main question involved in the appeal, and without discussing the others they are all decided against appellant.

No error has been shown, and the judgment is affirmed.