# AJ Tebbe & Sons Company v. Brown Express > Texas Supreme Court · November 23, 1960 · 161 Tex. 456 URL: https://www.frixlaw.com/law-library/cases/9770422 ## Case - **Full name:** A. J. Tebbe & Sons Company v. Brown Express - **Court:** Texas Supreme Court - **Decided:** November 23, 1960 - **Citations:** 161 Tex. 456; 4 Tex. Sup. Ct. J. 116; 341 S.W.2d 642; 1960 Tex. LEXIS 637 - **Precedential status:** Published - **Opinion:** Dissent by Smith - **Judges:** Walker, Smith - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770422 ## Opinion text Mr. Justice Smith, joined by Justice Griffin, dissenting. I respectfully dissent. The petition for writ of error was granted on Points l 1 and 4 2 . The court has, in my opinion, correctly decided that the Carmack Amendment has no application, thus disposing of Point 1. However, I cannot agree to the judgment reversing and remanding this case to the trial court for a new trial. There is no issue of fact to be determined by the trier of the fact. The issues between the parties were sharply drawn. There is even a decided disagreement as to the nature of the suit. Petitioner contends that its cause of action for damages to the shipment of onions is founded upon breach of contract. Respondent says “No.” I agree with petitioner. On or before May 15, 1956, at the request of petitioner, the respondent delivered its closed trailer to the place designated by the petitioner for the purpose of loading onions. Petitioner had nothing to do with the selection of the trailer or car. Therefore, a discussion of the law applicable where the shipper selects the trailer or car is of no material importance. After the closed trailer was delivered and after a number of sacks of onions had been loaded on the trailer, the respondent issued its uniform straight bill of lading, acknowledging receipt of 600 sacks of onions. The *466 bill of lading and the respondent’s admissions reflect that the respondent contracted and agreed to deliver the onions to M. R. Davis Bros, in Chicago, Illinois. The respondent breached the contract and this suit resulted. The trial court found the contract to be one for “through” shipment, but ruled against the shipper for the sole reason that it held recovery could not be allowed because of its opinion that the shipper’s negligence in loading the onions in a vehicle that had no vents precluded recovery, even though the respondent failed to discharge the duty resting solely with it to furnish a trailer suitable for the safe discharge of the onions. First: Was the contract one for “through shipment?” The respondent admitted, in response to petitioner’s request for admission No. 1, that “it received, by and through its agents or employees, 600 sacks of onions from A. J. Tebbe & Sons Company at Carrizo Springs, Texas, on or about the 15th day of May 1956, and contracted as a common carrier to transport said onions to M. R. Davis Bros., Chicago, Illinois, for which Brown Express issued its uniform bill of lading — not negotiable — domestic, receipting for said onions * * The making of requests for ad7 missions has come to be a common practice. Such practice is a laudable one in that contested issues are often reduced to a minimum because of the answers to such requests. In the present case, in view of the unqualified admission, supra, the petitioner was only required to introduce the request and answer. Petitioner relied upon this admission for all purposes, and not for a limited purpose, as indicated by the court. The admission definitely established a controlling feature of petitioner’s case, to-wit, that the contract was one for a “through shipment.” The holding of the Court of Civil Appeals, to the effect that the bill of lading contract was not a through contract and contained a limitation of liability to a loss occurring while the goods were in the possession of the origin carrier, can have disastrous results not only to the shipper in the present case on a retrial, but to the shippers of like commodities in the future. The net effect of the holding is to leave the shipper, whose product is damaged in transit, without a remedy. In the case of Atlantic Coast Line Railroad Company v. Riverside Mills, 219 U.S. 186 , 31 Sup. Ct. 164, 55 L. Ed. 167 and 180, the dire results which would obtain if the holding is left standing is graphically stated in the following language: “As a result the shipper could look only to the initial carrier *467 for recompense for loss, damage, or delay occurring on its part of the route. If such primary carrier was able to show a delivery to the rails of the next succeding carrier, although the packages might and usually did continue the journey in the same car in which they had been originally loaded, the shipper must fail in his suit. He might, it is true, then bring his action against the carrier so shown to have next received the shipment. But here, in turn, he might be met by proof of safe delivery to a third separate carrier. In short, as the shipper was not himself in possession of the information as to when and where his property had been lost or (damaged, and had no access to the records of the connecting carriers who, in turn, had participated in some part of the transportation, he was compelled in many instances to make such settlement as should be proposed.” The Court of Civil Appeals’ opinion in effect, constitutes a limitation of liability wherein the origin carrier would only be liable for a loss occurring on its own line. The holding is contrary to all the authoritative decisions on the question. See Tubize Chattilon Corporation v. White Transportation Co., 6 F. Supp. 15 ; Nebraska Co-operative Creameries, Inc. v. Des Moines Transportation Co., 16 Fed. Supp. 853; Michigan Central R. R. Co. v. Myrick, 107 U.S. 102 , 1 Sup. Ct. 425, 27 L. Ed. 325 ; Ogdensburg and Lake Champlain R.R. Co. v. Jefferson Pratt and Harrison G. Brigham, [22 Wall.], 89 U.S. 123 , 22 L. Ed. 827 . In this latter case, the court said: “Was there evidence in this case that the Ogdensburg and L.C.R.R. Co. did contract as a common carrier to transport this property beyond its own terminus over other roads to Boston ? The weight, the force or the degree of the evidence is not before us, if there was competent evidence, on which the jury might lawfully find the existence of the contract alleged. “If the jury have found in the plaintiff’s favor on the points, upon which evidence legally sufficient to justify it this court cannot interfere with their findings * * * .’ Turning now to the question of the negligence of the respondent in furnishing an unsuitable trailer: There is not the remotest possibility that a question of fact could be raised on that issue. The established facts require this court to render judgment for the petitioner on the issue, provided the amount of damages has been established with certainty. Apparently, the only reason the trial court did not render such judgment was, as announced from the bench, that the petitioner was negligent in loading the onions *468 in an unventilated vehicle. Petitioner discharged its burden by establishing that the onions were delivered to the carrier in good condition. The respondent offered nothing to rebut the presumption of good condition raised by the introduction of the bill of lading. The onions were worthless upon arrival in Chicago, Illinois. The respondent or his agents, the interline carriers, failed to keep the onions ventilated in transit, and the respondent without question furnished an unsuitable vehicle for the transportation of petitioner’s onions. The trial court found that the sole proximate cause of the onions being in a damaged and defective condition at destination was that they were transported in an unsuitable vehicle furnished by the respondent. This finding is supported by the undisputed evidence. The witness Davis testified by deposition. Direct and cross-interrogatories were propounded. All answers showed that the trailer was a Brown Express Trailer No. 664; that the trailer was without any ventilation doors and solid throughout; that there was no ventilation in the truck. This testimony was verified by the written inspection report made by the United States Department of Agriculture Inspection; temperatures ranged from approximately 68 degrees to approximately 80 degrees. A written record of his findings verifies his testimony in this matter. In holding the petitioner negligent for loading the onions on an unsuitable vehicle that had been furnished by respondent, the trial court was in error as a matter of law. The unsuitable trailer was furnished by the respondent and it should be held to answer in damages for its negligence which was the sole proximate cause of the damages to petitioner’s onions. In the case of Ogdensburg and Lake Champlain R. R. Co. v. Jefferson Pratt & Harrison G. Brigham, supra, the United States Supreme Court had before it the precise question we have here. The question: “Did the plaintiffs, by putting their horses into a car which they knew was defective and unsuitable, thereby assume the risk of such effects and relieve the company from the responsibility.” The answer was in the negative and is decisive of our question. In holding against the contention that the shippers assumed the risk, the court said: “Third. The loss, it is contended, arose from the defective condition of the car in which the horses were placed, whereby it was exposed to danger from fire. It is said that Pratt was aware of the defective condition of the car; that he voluntarily made use of it, and that the risk of loss by its use thus became his and *469 ceased to be that of the Company. The judge charged the jury that it was the duty of the carrier to furnish suitable vehicles for transportation; that if he furnished unfit or unsafe vehicles he is not exempted from responsibility by the fact that the shipper knew them to be defective and used them; that nothing less than a direct agreement by the shipper to assume the risk would have that effect. “There was a conflict in the testimony upon the point whether other cars were to be had. Pratt testified that he was compelled to take these cars or wait with his horses for a week. The station agent testified that there were other cars which Pratt might have had if he preferred them. “The authorities sustain the position taken by the judge at the trial. “In Steam Nav. Co. v. Bk., 6 How., 344, 383 , Mr. Justice Nelson says: ‘If it is competent at all for the carrier to stipulate for the gross negligence of himself and servants or agents in the transportation of goods, it should be required to be done at least in terms that would leave no doubt as to the meaning of the parties.’ “To this effect are the New York and Massachusetts cases before cited. “In [Mich. Cent.] R. R. Co. v. [Mineral Springs] Mfg. Co., 16 Wall., 318 [83 U.S., XXI., 297], it was declared that the court did not intend to relax the rule by which the liability of carriers was established. In [New York Cent.] R. R. Co. v. Lockwood, 17 Wall., 357 [84 U.S. XXI., 627], the following, among other propositions, were reiterated and established by the unanimous judgment of the court : 1. That a common carrier cannot lawfully stipulate for exemption from responsibility. See 22 Wall, when such exemption is not just and reasonable in the eye of the law. “2. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. “The judge at the trial in this case might have gone much further than he did, and have charged that if the jury found the Company to have been negligent and careless in furnishing cars, *470 they would not be relieved from responsibility, although there had been an agreement that they should not be liable therefor.” See also Cleburne Peanut & Products Co. v. Missouri, K. & T. Ry. Co. of Texas, Texas Com. App., 221 S.W. 270 ; Hines et al. v. First Guaranty State Bank of Aubrey, Texas Comm. App., 243 S.W. 972 , 13 C.J.S., 95-99. The undisputed proof in our case is that the petitioner did not select the trailer, and did not assume such duty. The respondent selected and furnished the trailer. Under such circumstances it is bound by the rules announced in the quotation from the Ogdensburg case, supra. It is to be noted that in the Ogdensburg case there was a conflict in the testimony upon the point as to whether other ears were to be had. However, the shipper testified that he had no choice and that he was compelled to take the cars or wait with his horses for a week. The shipper in our case had every right to assume that the respondent had performed its duty and furnished a suitable trailer. It did not select and it was under no duty to inspect the trailer for either latent "or obvious defects. Anyone is bound to know that the shipper is “probably compelled as a practical matter to use the facilities furnished” if he wished to ship sound onions instead of rotten onions. But it is not a question of what might be practical. The respondent was under a duty to furnish a suitable trailer. Its failure was the sole cause of the loss sustained by the shipper. In the Hines case, supra, the court said: “The law requires a carrier to furnish such cars as will properly protect the goods that it contracts to ship. “ ‘The general rule is that a carrier must furnish proper and suitable cars for every kind of goods which it holds itself out as ready to transport. If the carrier has been accustomed or has contracted to carry, or has held itself out as carrying, any particular class of goods, it must provide cars which are suitable for the carriage of such goods.’ 15 Ann. Cas. 144, note. “ ‘In the fulfillment of its duty to provide safe and suitable cars for the transportation of the goods offered the carrier must provide cars which will protect the goods from the elements, and no defect in the cars will excuse a carrier from liability on proof of injury to the goods.’ ” 10 C.J. 85, 86.” Assuming that no error otherwise exists, should the cause be remanded to determine the damage issue only, I think not. The *471 petitioner prays that judgment be rendered in accordance with the facts and the law. Petitioner’s requests for admissions on this issue were answered that on May 21, 1956, and May 22, 1956, the onions had no market value whatsoever; that on May 21, 1956, these Texas Crystal Wax onions were selling for $2.75 per sack (600 sacks) ; that on May 22, 1956, the same class of onions was selling for $2.50 to $2.75 per sack. The testimony of Mr. Davis is that on both dates the market value of the onions was $3.50 per sack. So we have the admissions on the one hand fixing a minimum market value of $2.50, and the testimony of Mr. Davis fixing a market value of $3.50. Since the request for admission fixing the minimum market value at $2.50 was framed by the petitioner with such figure stated therein, this court is authorized to render judgment on the basis of 600 sacks of onions at $2.50 per sack. See Owen Development Company v. Calvert, 157 Texas 212 , 302 S.W. 2d 640 . Unless the petitioner complains, certainly the respondent cannot be heard to question a judgment based on these figures. There is testimony to the effect that the onions sold as salvage for $72.85. However, this sum was applied toward the payment of some $300.00 freight charges. I would, therefore, reverse both judgments below and render judgment for the petitioner. Opinion delivered November 23,1960. Rehearing overruled January 18,1961. . —“The Court of Civil Appeals erred in not rendering a judgment for Petitioner based upon the undisputed evidence in the case.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770422. Public record. Not legal advice.