Citations
- 2 Tex. 115
Full opinion text
Mr. Chief Justice Hesipiiill
delivered the opinion of the court.
The petition charges that the defendants, being partners in the business and trade of common carriers, for hire, from the town of Nacogdoches in Texas, to the town of Nachi-toches in the state of Louisiana, received in that capacity, from the plaintiff, six bales of cotton, which they undertook to convey to Nackitoches for a reasonable reward, but failed to do so, and the cotton was wholly lost to the petitioner. There were three trials in the court below; in the first of which the jury could not agree on a verdict, and in the two latter found for the defendant.
•We are are not informed by the record of the instructions given by the judge to the jury, nor are exceptions taken to the opinion of the court. The facts are, however, agreed upon, and from these we ascertain that the “ defendants owned and run a wagon to haul cotton to and goods from Nacogdoches; that their principal business was farming, but a part of the time, and during the season for hauling, they run their wagon when they occasionally could get a chance;” that the cotton was received in good order; and that on the road some of the ropes •broke, and the bales partially bursted open. On the night the cotton was destroyed, the wagon was placed within fifteen feet of the camp fire; the fire was renewed at midnight, but neither ■at that time, nor wlien the teamsters first lay down, was there any wind; about the break of day the cotton was discovered to be on fire and burning furiously. The wind had then arisen and was blowing the camp fire towards the cotton; this occurred in the month of December.
The appellees contend: 1st. That they are not chargeable as common carriers; that they are bailees or carriers for hire in the particular case, and not having expressly assumed the risk •of common carriers, they are liable only for losses occasioned by ordinary negligence; and
2d. That if regarded as common carriers, they insist that the destruction of the cotton was occasioned by an act of God, and that therefore they are not responsible for the loss.
The question, whether persons who pursue the business of transporting goods for hire as only an occasional, and not as a principal occupation, are to be regarded as common carriers, and subject to their obligations and responsibilities, is one which, from the extensive interests- involved, and the number of persons so engaged, is of great importance to the community.
The solution of this question is not unattended with some difficulty, as some of the most important authorities on one of the particular points to be decided are not accessible to the court.
Kecurring to adjudicated cases and to works of established authority, to ascertain who are to be regarded as common carriers, we find them defined by Chancellor Kent in his Commentaries, vol. 2, p. 598, to be such persons “ as undertake generally, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, and with or without agreement as to price.”
Mr. Justice Story, in his treatise on Bailments, p. 322, lays down that “ to bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation,