# Whittington v. Cameron Compress Co. > Court of Appeals of Texas · November 21, 1923 · 268 S.W. 216 URL: https://www.frixlaw.com/law-library/cases/9829481 ## Case - **Full name:** Whittington v. Cameron Compress Co. - **Court:** Court of Appeals of Texas - **Decided:** November 21, 1923 - **Citations:** 268 S.W. 216 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Baugh - **Cited by:** 18 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/9829481 ## Opinion text On Motion for Rehearing. Both parties filed motions for rehearing on our original opinion herein. We wrote briefly on those motions on January 23, 1924. Thereupon appellant filed a second motion for rehearing, and appellee filed a motion to certify two of the issues involved in the case to the Supreme Court. Since we had followed the former opinion of this court in Exporters’ & Traders’ Compress & Ware-house Co. v. Schulze, 253 S. W, 702, in holding that, where the compress company failed to redeliver the cotton upon demand, the burden of proof was upon it to show that it was not negligent, and the Supreme Court had granted a writ of error because of conflict between the holding in the Schulze Case and the holdings of other courts of Civil Appeals, we concluded to await the action of the Supreme Court in said case before taking further action herein. The Supreme Court has recently disposed of the Schulze Case, 265 S. W. 133 (opinion not yet [officially] published), the holding in that case on the burden of proof was reversed, and the rule laid down that, where a compress company shows loss of cotton by fire, the burden then shifts to the plaintiff to show that such fire was due to the negligence of the company. We have concluded, therefore, to withdraw our former opinion on said motions, both for purposes of correcting same, and to discuss more fully the questions raised, and to substitute therefor this opinion. In accordance with the rule laid down in said case of Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze in an opinion by Judge Chapmen of the Commission of Appeals, our holding in the main opinion herein is corrected, and we now hold that it was incumbent upon appellant to show that the fire which destroyed his cotton was the result of the negligence of appellee. Upon further consideration of the question, and examination of the'photographs accompanying the record, and the testimony regarding conditions prevailing about the compress at the time, we have concluded that the question of whether or not appellee was negligent in failing to cover the exposed cotton on and about its premises with some material that would protect it from fire was also a matter that should have been submitted to the jury. Though the evidence is somewhat meager on the issue as to whether or not appellee used ordinary care in placing and storing appellant’s cotton on and about its premises, we think it was sufficient to carry that issue to the jury, and therefore sustain appellant’s third assignment' of error on this point. Upon further consideration of the questions raised, and in accordance with the conclusions reached and reasons given therefor in our main opinion herein, we sustain appellant’s assignments 10 to 14, relating to proof by appellee that it had- complied with custom and usage of compresses generally with reference to construction of plant, firefighting equipment, covering of cotton, and watchman service, and also with the regulations and requirements o'f insurance companies in such respects. Whether or not appel-lee was negligent in the respect charged by appellant was a question of fact, to be determined by the evidence in this particular ease—that is, the manner in which appellant’s cotton was taken, stored, and protected, in the light of location, arrangement, and surroundings of this particular compress. G., C. & S. F. Ry. Co. v. Evansich, 61 Tex. 3 ; Morgan v. Ry. Co., 50 Tex. Civ. App. 420 , 110 S. W. 978 ; St. Louis & S. W. Ry. Co. v. Neef (Tex. Civ. App.) 138 S. W. 1168 ; T. & P. Ry. Co. v. Hughes (Tex. Civ. App.) 192 S. W. 1091 ; Texas Power & Light Co. v. Bird (Tex. Civ. App.) 165 S. W. 8 . It was not sufficient to rely on its compliance with custom and usage of. compresses generally in this respect. To avoid doubt about the matter upon another trial of this case, we may also add in this discussion that the action of the trial court in sustaining appellee’s special exception to paragraph 4 of the appellant’s amended first supplemental petition was error. This paragraph charged appellee with negligence in the manner in which it had stored appellant’s cotton. What we have already' said obviates the necessity of setting out said pleading, or further discussion of this question. Suffice it to say that the pleadings were sufficient to raise the issue and should not have been stricken out. Though not referred to specifically in our original opinion, nor in this discussion, what we have said disposes of the issues , raised by the assignments. To the extent above indicated the motion is granted. In other respects it is overruled. Granted in part, and in part overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9829481. Public record. Not legal advice.