Petit v. Klinke

Mr. Justice Garwood

delivered the opinion of the Court.

This is a bailment controversy over an alleged shortage in wheat stored with the respondent, Klinke — our petitioners, Petit, Harbison and Waggoner, who were bailors, complaining here of the action of the Amarillo Court of Civil Appeals in reversing a district court judgment in their favor against said respondent bailee, and remanding the cause for a new trial. See 248 S.W. 2d 545.

The suit was begun by the respondent bailee, with two additional bailors (Crammer and Stansbury) joined as co-plaintiffs, against the three petitioner bailors and one H. J. Hughes as defendants, the matter of the alleged shortage of about 2500 bushels total having arisen in connection with a sale to Hughes of a considerably larger amount from the respondent’s grain elevator in Potter county. Respondent’s suit, as begun, alleged in substance that his elevator was a private one for his own use, in which on June 25th, 1949, he had in storage 3165 bushels of his own wheat, and that between the latter date and July 7, 1949, under arrangement with his two co-plaintiffs and the three petitioners, he received from these five, respectively, and stored in the elevator, specific amounts (bushels) of wheat, which, together with his own, aggregated some 19,204 bushels. There are also allegations that these amounts were all arrived at by weighing the wheat in question, as received, on the scales of respondent, which “had been duly tested, and proven to be correct.” It was further alleged that in early March of the following year (1950), by authority of all concerned, respondent sold and delivered all of this wheat, including his own, to the defendant Hughes at an agreed price of $2.00 per bushel; that (apparently) the wheat was not all weighed again on respondent’s scales, but was all weighed on the scales of Hughes, as delivered to him, the Hughes scales showing an aggregate weight of only 16,741 bushels, or some 2500 bushels (or about 14 per cent) less than the amount of 19,204 bushels abovementioned; that (in effect) the apparent shortage was due to the maladjustment of the Hughes scales, but that respondent had accepted without prejudice payment from Hughes for 16,741 bushels and tendered into court for the benefit of each petitioner a fraction of this payment corresponding to the fractional interest said to have been owned by each according to respondent’s previous allegations. The prayer was for judgment against Hughes for the price of some 2500 bushels, apparently for the benefit of respondent and his five bailors, and that respondent be discharged from all liability to petitioners. The latter filed answers and also cross-actions against respondent as a bailee for hire, seeking recovery of the difference between (a) the values of their respective interests as stated in bushels by respondent in his abovementioned pleading and (b) their respective portions of the Hughes payment as tendered by respondent. They did not deny authorizing the sale but, on the contrary, expressly pleaded a right of recovery against Hughes, in the event his weights should be proved erroneous, though without asserting such event to be more than a possibility. Respondent in turn filed a general denial to the answers and a special plea to the cross-actions. The plea, in effect, stated (or restated in more positive fashion) that whatever information or record respondent had or had made or given of the wheat stored with him was merely the reflection of the 1949 weighing operation on his scales, the correctness of which he believed but never “guaranteed”; that he delivered in sale to Hughes all of the wheat (whatever number of bushels it might be) that was, on July 7, 1949, in his elevator; and that, if the Hughes weights should be correct, the petitioners were entitled only to the sums tendered into court out of the Hughes payment.

At the close of the plaintiffs’ evidence (hereinafter discussed) the petitioners filed their respective motions for an instructed verdict on their cross-actions against respondent, on each of which the court then and there noted that the same were well taken. Thereafter — apparently following the introduction of further evidence — the court submitted the single issue of whether “* * * the scales owned by H. J. Hughes * * * reflected the correct weight of the wheat delivered by the plaintiff Fred Klinke * * None of the parties appear to have objected to this issue (or to have later questioned the finding of the jury thereon) but respondent did request issues as to whether he “delivered to H. J. Hughes all of the wheat * * * deposited with him in 1949” by the named petitioners respectively, which the court refused to give. Following the verdict that the Hughes weights were correct, judgment was rendered for Hughes against all parties, plaintiff and defendant, and in favor of petitioners on their cross-actions against respondent, the decree reciting “findings” of the court to the effect that, as a matter of law, respondent had received the full number of bushels from each petitioner as claimed by the latter, and that petitioners were accordingly entitled to judgment against him as prayed for. Respondent, and he alone, appealed from this judgment — with the resultant reversal and remand on the ground that the trial court should have submitted additional fact issues in the controversy as between respondent and petitioners.

As to the evidence (which is before us only in an abbreviated statement for appellate purposes) respondent’s pleaded version of the facts stands backed by his owh testimony without contradiction or supplement, unless as hereinafter indicated. While not in the warehousing business, respondent was admittedly to receive substantial compensation for the storage. According to his testimony, there was nothing in the elevator on June 25, 1949, but that, beginning with the latter date and ending on July 7, 1949, wheat of himself and his five bailors, and none other, was deposited — the respective amounts of each depositor, including respondent, “being determined by the scales used by me and by tickets of each truck load as deposited”, and such amounts, as so determined and as evidenced by the “tickets”, being, in terms of bushels, the number of each petitioner now claimed by each, and the number for each of respondent and his co-plaintiffs, as well as the aggregate number (19,204) of all six parties, as pleaded by respondent. Neither the character, content nor present whereabouts of the tickets further appears in the record, except to the extent that they were issued by respondent to the depositors and were, at least, a record of the weights. Respondent also testified that, following the above-described storage operation (evidently on July 7th, 1949) the elevator was locked and remained locked, and that none of its contents were “removed or in any way changed or altered”, until, on March 6, 1950, such contents were all withdrawn and delivered in sale to the defendant Hughes. Respondent further testified that, being informed during the course of the delivery to Hughes, that the scales of the latter seemed to be weighing light, considering the capacity of the trucks being used, the last three truck loads were weighed on both scales, with results indicating in each instance about 14 per cent greater weight on the scales of respondent. Beyond this and respondent’s testimony that his own scales had been officially tested and found correct on June 15, 1949, the only proof concerning the correctness of either of the scales is the testimony of Bender, an employee of Hughes, that the instant controversy was “the first time I heard any complaint” about the Hughes scales.

Apparently the theory of the trial court was that respondent, being by his pleadings and proof, irrevocably committed to having received from the petitioners the number of bushels claimed by them was liable to them to that extent, whatever might be his remedy against Hughes in the event the Hughes weights proved to be incorrect. However, upon further consideration after granting the writ of error, we agree with the Court of Civil Appeals that the basic premise of the trial court was unsound.

As to the pleadings, we do not consider respondent’s claim that his own weights were correct and those of Hughes wrong to destroy necessarily his right, pleaded in response to the cross-actions, to be discharged even on the assumption that the Hughes weights were true. We believe the effect of these pleadings to have been no more than alternative pleading — a practice long permitted in this state, even when inconsistent positions are thus taken in different counts or defensive pleadings. See 2 McDonald, Texas Civil Practice (1950) §§ 5.08, 6.20, 7.01; 33 Texas Jur., “Pleading”, §§ 10, 189; rules 48 and 84, Texas R. Civ. Proc.; Rotsky v. Kelsay Lumber Co., 118 Texas 180, 12 S.W. 2d 973; Traders & General Ins. Co. v. Wright, 144 S.W. 2d 626, Tex. Civ. App., error refused. The corollary, as evidenced by the above decisions, obviously is that, as stated by a Texas law teacher of revered memory, “These inconsistent pleas cannot be used in evidence to disprove each other.” Townes’ Texas Pleading, 2nd Ed. (1913). The alternative count or plea of respondent in the instant case, that he had delivered all of the wheat to Hughes was, indeed, merely another way of saying that respondent’s own scales were incorrect, but was yet not destroyed by the initial count alleging just the contrary. This is not less so because the initial count was primarily against Hughes and the other plea in response to the cross-actions of petitioners. The whole matter was a single transaction, and the effect of the pleadings the same as if, for example, the petitioners had begun the litigation as a suit against both respondent and Hughes and respondent’s above described pleadings had been altogether defensive. In fact, petitioners themselves sought alternative relief against Hughes should it be determined that the Hughes weights were too light.

As to the evidence, it is enough to say that respondent’s testimony committed him no further than that his own scales reflected the weights claimed by petitioners and that he had good reason to, and did, believe them to be correct and the Hughes weights to be incorrect. Considering that the correctness or incorrectness of a scale is something that may not readily be determined by the average man, without the assistance of experts, we do not regard such testimony as judicially binding him to the results of his own scales. His testimony that he delivered all the wheat in his elevator to Hughes did undoubtedly exclude every explanation of the alleged shortage except an error in the scales of Hughes or himself, but it is obviously within the realm of possibility that his own scales were wrong in 1949 and that he then stored only 16,741 bushels instead of 19,204 (with correspondingly less bushels for each co-owner of the mass than his scales indicated). Decisions such as Stanolind Oil & Gas Co. v. State, 136 Texas 5, 133 S.W. 2d. 767, 145 S.W. 2d 569. and Southern Surety Co. v. Inabnit, (Tex. Civ. App.) 1 S.W. 2d 412, 415, are not controlling. As indicated in both, a party is not necessarily bound to a fact which he admits only by way of opinion.

The issuance by respondent of the tickets does not, on the record before us, bring him within the terms of our Uniform Warehouse Receipts Act, Ch. 4, Title 93, Vernon’s Tex. Civ. Stats. Ann, of which Article 5631 provides in part that “A warehouseman shall be liable to the holder of a receipt for damages caused by the nonexistence of the goods or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issue.” Assuming, without knowing, that petitioners at time of trial were each a “holder”, as defined in Art. 5664, the latter provides further that “receipt” means “a warehouse receipt”, and there is certainly no suggestion in the record that the tickets come within the elaborate provisions of Art. 5613 and succeeding provisions, which indicate what is meant by a warehouse receipt. See Rodgers v. Murray, Texas Civ. App., 247 S.W. 888. Even a non-negotiable warehouse receipt is described, Art. 5615, as “ a receipt in which it is stated that the goods received will be delivered to the depositor, or to any other specified person” (italics supplied). We, therefore, need not consider the matter of whether, as between the original parties thereto, a warehouse receipt may be impeached by the warehouseman for mistake.

Since respondent is not, therefore, precluded by his own pleadings and evidence, including the tickets, from relief based on the theory that he did not in fact receive the full number of bushels claimed by petitioners, he is entitled to a submission of that possibility if there is evidence to support it. The question is thus not whether, having actually received the full amount, he can account for it merely by saying he delivered it all to Hughes, but whether he received that much in the first place, or in other words, (a) whether his own scales were, in the June 25th - July 7th, 1949, period, wrong, despite his own belief to the contrary and (b) whether his scales, while weighing some 14 per cent too much, were yet uniform in their error, so as to determine correctly the respective fractional interests of all concerned in the mass of wheat, even should the mass turn out to be 16,741 bushels rather than 19,204.

The form of the requested issues was, indeed, improper in enquiring whether respondent delivered to Hughes the wheat that each named petitioner deposited with him in 1949. An affirmative answer, plus the answer that the Hughes weight of 16,741 bushels was correct, might still subject respondent to further liability beyond his money tender, unless it were determined also that each petitioner deposited with respondent less wheat than respondent’s scales and each petitioner’s ticket showed. However, since the trial court, prior to the appropriate time for requesting issues, had ruled that respondent was liable as a matter of law to petitioners for the amounts prayed by the latter, and respondent has complained of such ruling, we do not think respondent waived or otherwise prejudiced his rights by his improper requests.

The verdict — which meant that respondent delivered only 16,741 bushels to Hughes — does not, of course, imply the existence of evidence showing respondent’s scales to be incorrect or even those of Hughes to be correct. Respondent pitched his case primarily on the proposition that the Hughes scales were wrong, and having thus assumed the burden of proof that they were, the verdict may well have been due merely to his failure to carry that burden rather than to any positive evidence about either scale. But, in our opinion, the evidence of a 14 per cent difference in the two scales on the alleged truckload tests in 1950, plus the testimony of the witness, Bender, of an absence of any other complaint about the Hughes scales, plus respondent’s testimony that he delievered all of the wheat to Hughes, are together some evidence that the scales of respondent were in 1949 incorrect, and that he then received only 16,741 bushels rather than the 19,204 bushels which his scales showed. The 1950 tests, showing the same percentage differences as to several different truck loads, were evidence that the error, if any, in respondent’s scales was consistent or uniform, so that a jury might find that the 1949 weighing correctly determined the fractional interest of each petitioner in the mass, whatever the mass itself might truly weigh.

We, therefore, conclude that the trial court erred in holding respondent liable as a matter of law to petitioners. The contrary judgment of the Court of Civil Appeals remanding the cause for a new trial, is accordingly affirmed.

Opinion delivered January 28, 1953.

Associate Justice Culver not sitting.