
    Chevaillier’s Adm’r v. Patton and another.
    Where a common carrier being sued upon a bill of lading for failure to deliver in like good order, &e., pleaded a custom to carry goods in open vehicles, of which the plaintiff had notice, and that the only damage sustained by the freight (cotton) was caused bv rains which fell upon it during the transportation: held, That the plea was good. (Nots’05.)
    Appeal from San Augustine. Suit by the appellant on bills of lading for one hundred and fifty-five bales of cotton from Paltonia to Sabine Pass. It was alleged that the cotton was not delivered in good condition as stipulated, but was badly damaged, and the damages were laid at two hundred dollars. The defendants answered that it was the custom of common carriers to carry goods in open and uncovered boats and vehicles, which were exposed to the inclemency of the weather, and that such custom was known to plaintiff, and that he consented that the cotton shipped should be transported in such uncovered boats, and that the cotton suffered no damage except what resulted from rains that fell upon it during its transportation. A demurrer to the answer was overruled. Verdict and judgment for the defendants.
    
      J. M. Ardrey, for appellant.
    In the case of Chevaillier v. Straham, 2 Tex. R., 124. the responsibilities of a common carrier are accurately defined. It is there said that he is an insurer against all losses not embraced in the excepted cases, and that the only exceptions to his liability are the, acts of God, the enemies of the country, and Of the party complaining. No force however great, no accident however inevitable, no fraud however beyond his control, will excuse him. However, it was'attempted to be shown that it was the custom of common carriers to carry goods in open and uncovered boats and vehicles, and that the storms of rain which were proved to have fallen and been the cause of the damage directly, ior the purpose oí constituting an exception to that liability, either upon the principle that the custom created an implied contract between the parties by which they limited their liability or that the rain storms proved to have happened and'producing the damage, fell within the exception that storms, lightuings, and tempests are such acts as could not happen by the intervention of man, and was therefore the act of God.
    The contract of the party was that he would deliver the cotton in the same good order and condition in which he had received it, “the dangers of the '•‘river only excepted.” In Johnson v. Friar, 4 Yerger K., 51, these words in a bill of lading mean such dangers as that no human skill or foresight could have guarded against.
    Tlie owner of a vessel employed in the transportation of freight, as a common carrier is answerable for the defects on the vessel or its equipment, and generally lie is answerable for all losses'other than what arise from the excepted cases, of the act of God, or public enemies, or by his express contract. (3 Kent Com., p. 205.) The liability of a common carrier cannot be restrained by the publication of notice or by an usage or particular custom. (Story on Bailments, sec. —, p. ■ — .) Then, the usage or custom pleaded, by whicli the defendants attempt to excuse themselves from liability for the defective equipment of their vessel, by whicli the cargo is exposed to rain, by which it becomes damaged, does not constitute a sufficient defense to the plaintiff’s action, and the court should have sustained plaintiff’s exception to it.
    
      T. J. Jennings, for appellees.
    Story on Bailments, (as to allegations which define a common carrier,) sec. 504. General custom to stow on deck, Id., sec. 630. Benj. & Slidell. 690, sec. 99, as to right to stow on deck with consent of owner. Carrier liable (under exception of dangers of rivers) for no loss incident to the nature of the boat or river, nor when no fault in boatmen. (12 Smedes & Marshall, 599; in case of Whitesides v. Turkhill, to be found in vol. 3 Livingston’s Law Mag., Jan’y, 1S51, p. S3, No. 1.)
   Lipscomb, J.

The.appellant asks a reversal of the judgment of the court below on the ground that the court overruled his exception to the defendant’s special answer setting up facts as forming exceptions to his liability as a common carrier.

The case presents the following inquiries for our consideration: Does the fact that the owner is apprised at the time he delivers his cotton and receives the bill of lading that it is the custom that cotton and other freight conveyed upon the river is to be conveyed in open boats exposed to the rain whilst on its way to the point of discharge, form an exception to the common doctrine of the law of common carriers, and exempt the carrier from such damage as result from the cotton being exposed to rains whilst on board? As to the general doctrine of the liability of a common carrier there is no controversy. Nor is there any as to the parties sued in this case being liable, whatever that liability may be, as common carriers. But the defendants claim tile exception as above stated. The exception is believed to be novel, and lienee the want of the authority of precedent. But it does seem to address itself to the favorable consideration of the court as being- well founded in reason and the necessary result of the circumstances attending it. The river on whicli tiie freight was conyeyed, the particular structure of the craft supposed to be the only practicable one for its navigation, and the only one employed, and all this known to the owner of the cotton at the time he delivers it on board, does seem to create an implied exception in favor of .the carrier that lie is not liable to answer for damage created and caused by rain that the owner of the cotton was well apprised that he could not guard against.

In countries old and well-improved the mode of conveyance is bettei adapted to the security of the freight against the effects of rain, and a case of this kind could not readily occur. It is believed, however, that this distinction and exception lias been recognized and sustained by the Supreme Court of Mississippi in the case of Whitesides v. Turkhill, 12 Smedes & Marshall, 599. The exception is believed, too, to derive aid from its analogy to a general warranty of soundness of property, which, it is well settled, does not."extend to a defect palpable to the eye and welL known to the purchaser at the time he. makes the purchase.

The exception claimed docs not conflict, in any degree, with the opinion of this court in the case of Chevaillier v. Straham, 2 Tex. R., 124. Had the damage sued for in that case been the result of rain on the cotton whilst it was being transporled in an open wagon, the case would have been parallel; but the damage remitted in that ease from a cause that the owner could not have apprehended any danger from, and of which lie could not be required to incur the risks, aud it properly rested on the carrier.

We believe that there is no error in the judgment of the court below, and it is affirmed.

Judgment affirmed.

Note 65. — The case of Chevallier v. Patton was a particular and excepted case, having especial find exclusive reference to that particular mode of transportation — in open flatboats. (Philleo v. Sanford, 17 T., 227.)  