A. J. TEBBE & SONS COMPANY, Petitioner, v. BROWN EXPRESS, Respondent, 341 S.W.2d 642

WALKER, Justice. This is a suit by A. J. Tebbe & Sons Company, petitioner, against Brown Express, respondent, for damages to a shipment of 600 sacks of onions. The onions were loaded by petitioner on respondent’s trailer at Carrizo Springs, and respondent issued its uniform bill of lading showing that the same had been received in apparent good order and were consigned to M. R. Davis Bros., Chicago, Illinois. The shipment was interlined with another motor carrier at Dallas but was transported to its destination on respondent’s trailer.

The onions were found to be in bad condition upon arrival at Chicago and were sold for salvage. The case was tried by the court without a jury, and judgment was rendered for respondent. Findings of fact were requested and filed, and the court found, among other things, that the trailer was not equipped with vents, that petitioner was negligent in loading the onions thereon, and that such negligence was the sole proximate cause of the damage.

According to the conclusions of law, petitioner was denied a recovery for this reason and also because the court decided that the evidence failed to establish that respondent was negligent or that the damage occurred while the shipment was in respondent’s custody.

The Court of Civil Appeals affirmed on the basis of its holdings: (1) that there is evidence to support the trial court’s conclusion that the Carmack Amendment, 49 U.S.C.A. § 20, par. (11), does not apply, and (2) that respondent did not contract to transport such shipment beyond its own lines and therefore is not responsible for damage occurring after the same was delivered to the connecting carrier. 326 S.W.2d 548. Congress has provided that with certain exceptions not material here nothing in

Part II of the Interstate Commerce Act, where the Carmack Amendment is made applicable to motor carriers, shall include “motor vehicles used in carrying * * * agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation.” 49 U.S.C.A. § 303(b) (6). Onions are “agricultural commodities” within the meaning of this section, and the evidence shows that the 600 sacks shipped by petitioner filled the trailer to capacity.

This indicates that no other property was being hauled at the time, and it is a matter of common knowledge that passengers are not normally carried for compensation in motor vehicles designed to transport such a commodity. There is no evidence suggesting that respondent is authorized to carry passengers for hire or ever used its motor vehicles for that purpose. We agree with the Court of Civil Appeals that the record supports the conclusion that no other property or passengers were carried by the truck in which the onions were hauled.

The Carmack Amendment thus has no application, and petitioner must rely upon the common law if it is to recover in this action. In the absence of a statute or special contract, the liability of a common carrier as such ordinarily terminates when the goods have been carried to the end of its line and delivered to a connecting carrier for transportation to their ultimate destination. But if the initial carrier contracts to carry the shipment to a point beyond its lines, its liability as a carrier extends over the entire route.

While courts are in general agreement with respect to these basic propositions, there is a difference of opinion as to the showing that must be made to establish a contract for through transportation by the initial carrier. The English courts and some American cases hold that such an undertaking may, unless there is a qualifying agreement, be inferred from the mere receipt of property for transportation to a place not on the route of the receiving carrier.

According to the majority American rule, however, the acceptance of, goods consigned to a point beyond the line of the initial carrier is not enough, and the latter’s carrier liability ends when the shipment is delivered to the connecting carrier unless the evidence affirmatively discloses an agreement to carry over the whole route. The latter view has been recognized and approved by the Supreme Court of the United States. See Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167; Mich. Central R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 21 L.Ed. 297; Ogdensburg & L. C. R.

Co. v. Pratt, 22 Wall. 123, 22 L.Ed. 827; Hunter v. Southern Pac. Ry. Co., 76 Tex. 195, 13 S.W. 190; Gulf, C. & S. F. Ry. Co. v. Jackson & Edwards, 99 Tex. 343, 89 S.W. 968. In Michigan Central R. Co. v.

Myrick, 107 U.S. 102, 1 S.Ct. 425, 429, 27 L.Ed. 325, the court said that while a carrier may agree that its liability will extend over the whole route, such liability will not attach in the absence of a special agreement to that effect, and that “the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence.” In response to petitioner’s request for admissions, respondent admitted that it contracted as a common carrier to transport the onions to M. R. Davis Bros., Chicago, Illinois, and issued its uniform bill of lading receipting therefor.

One of the trial court’s additional conclusions of law is to the same effect. If we understand petitioner’s argument, however, it does not rely on the admission except in support of its contention that the bill of lading is a contract by respondent to carry the shipment to the named consignee at Chicago.

In addition to the information mentioned above, the instrument bears the notation “exempt commodity” and recites on its face that any person or corporation in possession of the property under the contract “agrees to carry to its usual place of delivery at said destination, if on its own railroad, water line, highway route or routes, or within the territory of its highway operations, otherwise to deliver to another carrier on the route to said destination.” Spaces provided for showing the routing and the name of the delivering carrier were left blank.

Bills of lading containing provisions similar to the one quoted above have usually been construed as an agreement by the receiving carrier to transport only over its own line. See McEacheran v. Michigan Central R. Co., 101 Mich. 264, 59 N.W. 612; Skinner v. Hall, 60 Me. 477; Inhabitants of Plantation No. 4 v. Hall, 61 Me. 517; Glazer v. Old Dominion S. S. Co., Sup., 113 N.Y.S. 979; Fairfield-v. Pacific Coast S. S. Co., 3 Cal.App. 106, 84 P. 438; Pennsylvania Co. v. Dickson, 31 Ind.App. 451, 67 N.E. 538.

Courts which recognize the English rule seem to experience no difficulty in reaching the contrary conclusion, particularly where the bill of lading contains no limitation of liability and there are other provisions or extrinsic evidence indicating that the receiving carrier did contract to carry the shipment to destination. Elgin, J. & E. Ry. Co. v. Bates Mach. Co., 200 Ill. 636, 66 N.E. 326, 93 Am.St. Rep. 218; cf. Fox v. Canadian Pac. Ry. Co., 260 Ill.App. 482. Tubize Chattilon Corp. v. White Transp.

Co., D.C., 6 F.Supp. 15, 18, was decided before the Carmack Amendment was made applicable to motor carriers in general and before the passage of

Section 303(b) (6) which expressly exempts vehicles carrying raw agricultural products. The bill of lading there considered was similar to the one involved in the present case, and the court held that under all of the evidence, including such instrument and the oral testimony, the trucking company had contracted to carry over the whole route.

It said that the “claim of exemption from liability” was not established by the bill of lading, and that if reference could properly be made to the other facts and circumstances disclosed by the evidence, the same showed as a fact that the parties intended and agreed that the defendant should be liable for the shipment through to ultimate destination.

The following circumstances were cited in support of these conclusions: the absence of an express provision limiting the carrier’s liability to damage occurring on its own line, the prepayment of freight to destination, the fact that the plaintiff insisted that the defendant assume liability over the whole route, and the evidence showing that the defendant frequently transported other shipments to the named destination in its own trucks by another route and so transported the major portion of the shipment in question.

A reading of the opinion in the Tubize case discloses that the court there adopted the English approach to the problem. It said quite frankly that the majority American rule governing the liability of railroads should not, on grounds of public policy, be applied to motor carriers in view of the different conditions under which they operate.

Since Congress has now extended the Carmack Amendment to motor carriers and expressly provided that the same shall not be applicable to vehicles used to transport agricultural commodities, it seems to us that there is no basis for saying that an action for damage to an exempt shipment should be governed by any other rule. The question then is not whether the bill of lading contains a limitation or exemption of liability but whether the carrier has agreed to carry the shipment to its destination or has otherwise assumed responsibility over the entire route.

The provision quoted above does not necessarily limit respondent’s liability or contract of carriage to its own lines. On the other hand we do not find anywhere in the bill of lading an undertaking by the receiving carrier to transport to the destination named therein except where the goods are consigned to a place on such carrier’s route or within the territory of its operations. The evidence does not disclose whether the respondent’s operating authority extends to Chicago, and there are no circumstances indicating that it agreed to carry the shipment there.

The transportation charges were to be collected on delivery. Although respondent was quoting at least some of its shippers through rates on onions to Chicago, it does not appear that the parties agreed on such a rate for the shipment in question.

While the onions were carried there in the original trailer and the routing and name of delivering carrier were not shown on the bill of lading, these circumstances do not suggest that respondent contracted to transport over the entire route, and there is no evidence of any custom or conversation between the parties with reference to the particular shipment or other similar shipments. Apart from the admission previously mentioned, the present record contains nothing to show an agreement by respondent to carry the onions to Chicago.

Even if such admission were held to be controlling in spite of the fact that petitioner has not taken that position here or in the courts below, judgment could not be rendered in petitioner’s favor because the amount of the damage was not found by the trial court and is not conclusively established by the evidence. Since we have concluded for the reasons stated below that the cause must be remanded for a new trial even though respondent is not subject to carrier liability over the whole route, the effect of the admission will not be considered further at this time.

The conclusions which are implicit in the trial court’s findings, when considered in the light of the facts established by undisputed evidence, indicate that petitioner may be entitled to recover even though the Carmack Amendment has no application and respondent did not agree to carry the onions to their destination. If an initial carrier negligently furnishes an unsuitable car, it is liable for the resulting damage although the same may occur while the vehicle is on the line of a connecting carrier.

This is the common-law rule entirely aside from the Carmack Amendment and without regard to whether the defendant agreed to transport the shipment beyond its own lines. See Houston & T. C. R. Co. v. Wilkerson Bros., Tex.Civ.App., 82 S.W. 1069 (no writ); International & G. N. R. Co. v. Aten, Tex.Civ.App., 81 S.W. 346 (no writ); Hunt v. Nutt, Tex.Civ.App., 27 S.W. 1031 (no writ); St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597, 86 S.W. 802; Jones v. St. Louis & S. F. R. Co., 115 Mo.App. 232, 91 S.W. 158; 13 C.J.S. Carriers § 51, p. 98; 9 Am.Jur. Carriers § 891, p. 979.

Respondent may not escape responsibility then for damage caused by its own negligence in furnishing an unsuitable trailer simply because the onions did not deteriorate until after they were delivered to another carrier. The undisputed evidence discloses that respondent was actively soliciting the business of hauling onions and knew that the vehicle furnished by it to petitioner would be used for that purpose. As indicated above, the shipment involved in this case filled the trailer to capacity, and no other commodity was transported thereon.

There is nothing in the record to suggest that petitioner selected the vehicle or was under any special obligation to determine that the one supplied by the carrier was suitable for the use intended. In these circumstances it was the primary duty of respondent to furnish a trailer suitable for the safe carriage of the onions. See Cleburne Peanut & Products Co. v. Missouri, K. & T. Ry. Co. of Texas, Tex.Com.App., 221 S.W. 270; 13 C.J.S. Carriers § 49, p. 95; 9 Am.Jur. Carriers § 337, p. 631; Annotation, 18 L.R.A.,N.S., 508. Evidence given by petitioner’s local manager, Joe H.

Rugel, supports the conclusion that a ventilated trailer is reasonably required for the safe transportation of onions by truck. If that is so, respondent was under the duty to furnish such a vehicle. Forester & Co. v. Southern Ry. Co., 147 N.C. 553, 61 S.E. 524, 18 L.R.A.,N.S., 508, 15 Ann. Cas. 143. The trial court evidently accepted' Rugel’s testimony, because it found that petitioner was negligent in loading the shipment on an unvented trailer. It also found that such negligence was the sole proximate cause of the damage.

In making these findings the court necessarily concluded that the exercise of ordinary care required that the onions be transported in a vehicle equipped with vents and that their deterioration resulted entirely from the failure to do so rather than from some other cause. Since responsibility for use of the unvented trailer rests primarily upon respondent, it seems clear to us that an incorrect rule of law was applied when the court decided that petitioner had failed to establish that the damage was caused by respondent’s negligence.

The case must therefore be remanded for a new trial unless the judgment in respondent’s favor can be supported by the finding that petitioner was negligent in loading the onions on an unvented trailer. ' [8-11] According to some cases, a carrier is not relieved of liability by the fact that the shipper used the vehicle knowing it to be unsuitable. See Ogdensburg & L. C. R. Co. v. Pratt, supra; St. Louis, I. M. & S. Ry. Co. v. Marshall, supra; Annotation, 19 L.R.A.,N.S., 952.

This is undoubtedly true where the plaintiff has no reasonable means or opportunity of relieving himself of the situation, but the effect of actual negligence on the part of the shipper has not been considered by the courts when they declare or apply the rule stated in the Ogdensburg case. If it does not appear that another proper vehicle would have been promptly supplied by the carrier upon request, the shipper will not be deemed guilty of contributory negligence, or of having assumed the risk, when he uses the one furnished with knowledge that it is unsuitable. See Missouri, K. & T. Ry. Co. of Texas v.

McLean, 55 Tex.Civ.App. 130, 118 S.W. 161 (wr. ref.); Fort Worth & D. C. Ry. Co. v. Hunt, Tex.Civ.App., 258 S.W. 593 (no writ) ; Seneker v. Lusk, Mo.App., 190 S.W. 96. These and other cases suggest, however, that acceptance and use of the vehicle may constitute a defense provided the shipper knew of its condition and could have obtained a suitable one in time to serve his purpose by notifying the carrier. See Coup-land v. Housatonic R. Co., 61 Conn. 531, 23 A. 870, 15 L.R.A. 534; Densmore Commission Co. v. Duluth, S. S. & A. Ry., 101 Wis. 563, 77 N.W. 904; Nicholson v. St. Louis & S. F. R.

Co., 141 MoApp. 199, 124 S.W. 573. We think this rule is clearly sound, at least where no breach by the carrier of a statutory duty is involved. It is well settled that a shipper who assumes the duty of selecting the car under circumstances charging him with knowledge of defects and in reliance on his own rather than the carrier’s judgment cannot hold the latter responsible for losses resulting from the nature or condition of the vehicle. McFaddin Rice Milling Co. v. Texas & N. O. Ry. Co., Tex.Civ.App., 277 S.W. 191 (no writ); Edward Frohlich Glass Co. v. Pennsylvania Co., 138 Mich. 116, 101 N.W. 223, 110 Am.

St.Rep. 310, 4 Ann.Cas. 1140; 13 C.J.S. Carriers § 53, p. 99. The shipper who knowingly accepts and uses an unsuitable car supplied by the carrier instead of requesting and obtaining a proper vehicle when the latter course is reasonably available to him is deemed in law to have selected the one used and cannot subject the carrier to liability for damages caused by conditions which were known to him. See Nicholson v. St. Louis & S. F. R. Co., supra.

In the absence of a contract or other special circumstances giving rise to the duty, however, the shipper is under no obligation to inspect a vehicle furnished by the carrier and will not be charged with knowledge of defects simply because the same would have been disclosed by a proper inspection. See Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Louisville Tin & Stove Co., 33 Ky.Law Rep. 924, 111 S.W. 358, 17 L.R.A.jN.S., 1034; Annotation, 17 L.R.A.,N.S., 1034.

If the damage is caused by a latent defect not known to him, the carrier cannot escape liability by showing that the shipper inspected and accepted the vehicle. With the possible exception of a situation where the nature or condition of the vehicle is so open and obvious as to be apparent to anyone in the shipper’s position, the latter will not be charged with notice in the absence of actual knowledge. See Hunt v. Nutt, Tex.Civ. App., 27 S.W. 1031; Leonard v. Whitcomb, 95 Wis. 646, 70 N.W. 817.

The evidence in the present case does not. show that petitioner knew the trailer was unvented, and it does not appear that a proper vehicle would have been supplied in time to meet its needs if respondent had been notified that the one furnished was unsuitable. The record merely discloses that the onions were loaded by petitioner on an unvented trailer, and this will not support a finding that the shipper was either negligent or assumed the risk. The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial. . It was said in Gulf, C. & S. F. Ry. Co. v.

Trawick, 80 Tex. 270, 15 S.W. 568, 18 S.W. 948, that railroad companies cannot absolve themselves from their statutory duty to provide suitable pens for cattle by showing that the same were so badly kept or constructed as to make it contributory negligence on the part of the shipper to use them. This decision is not necessarily inconsistent with the rule stated above, because the plaintiff there was probably compelled as a practical matter to use the facilities furnished if he wished to ship his cattle.

Id. “The Court of Civil Appeals erred in holding that the bill of lading contract was not a ‘through’ bill of lading in which Respondent Brown Express contracted as a common carrier for the transportation of Petitioner’s onions to a named consignee at Chicago, Illinois.” 2d. “The Court of Civil Appeals erred in not rendering a judgment for Petitioner based upon the undisputed evidence in the case.”