
    BRASS v. TEXARKANA & FT. SMITH RY. CO.
    (No. 75-2843.)
    (Commission of Appeals of Texas, Section A.
    March 3, 1920.)
    1. Pleading <S=>129(2) — Reply not required TJNDEK VERIFIED PLEADING ACT, WHERE ANSWER MERELY PLEADS DENIALS IN AFFIRMATIVE FORM; “SPECIAL MATTER OF DEFENSE.”
    In action against carrier for loss of goods, where petition alleged delivery to the carrier and answer denied such delivery and set out in detail the circumstances under which the bill of lading was issued, the facts so alleged in the answer were not to be taken as confessed, in default of reply, under Verified Pleading Act, (Acts 33d Leg. [1913] c. 127, § 6 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829]), requiring reply to any “special matter of defense”; for such provision was intended to apply only to facts not already in issue by allegations of the petition, and alleging affirmatively the converse of what plaintiff has alleged amounts merely to a denial and not “special' matter of defense.”
    2. Carriers <⅜=3134 — Proof of delivery to, AND NONDELIVERY BY, CARRIER CONSTITUTES PRIMA FACIE PROOF OF NEGLIGENCE.
    In action against carrier for loss of goods by fire while awaiting transportation, 'plaintiff makes a prima facie case of negligence by proof of delivery of the goods to the carrier and nondelivery by the carrier at destination.
    3. Commerce ®=»10 — Law of forum governs LIABILITY FOR LOSS O'F GOODS RECEIVED FOR FOREIGN SHIPMENT IN ABSENCE OF FEDERAL REGULATION.
    The liability of a carrier for loss of goods received under a contract for export to foreign country is governed by the law of the forum; Congress not having exercised its power to regulate such matter, the Hepburn Act and the Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa) applying only when the shipment is from one state to another.
    4. Carriers <S==>132 — Burden of proof upon SHIPPER TO SHOW AMOUNT OF DAMAGE.
    In action against carrier for loss of baled cotton by fire, plaintiff had the burden of showing the amount of his damage, which was not discharged by evidence failing to show the grade of the cotton or number of pounds destroyed.
    By the Supreme Court.
    5.Evidence <⅜^18 — Judicial notice of cotton GRADES AND VALUES.
    A court cannot blind its eyes to knowledge of a fact notorious throughout its jurisdiction, •as that cotton marketed in Texas in any year differs in grade and that its value materially depends upon its grade.
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Franz Brass against the. Tex-arkana & Ft Smith Railway Company. Judgment for plaintiff was reversed and set aside and judgment rendered for defendant by the Court of Civil Appeals (175 S. W. 778), and plaintiff brings error.
    Judgment of Court of Civil Appeals and of the trial court reversed, and cause remanded.
    C. M. Smithdeal, of Dallas, for plaintiff in error.
    Glass, Estes, King & Burford, of Texar-kana, for defendant in error.
   STRONG, J.

The plaintiff, Brass, brought this action against the Texarkana & Ft. Smith Railway Company to recover .the value of 26 bales of cotton, alleged to have been destroyed by fire while on the platform of a compress at Athens, Tex., where it had been placed for' transportation to Bremen, Germany, and for which the defendant had, prior to the fire, issued an export or foreign bill of lading. The case was tried while the Verified Pleading Act, passed by the Thirty-Third ¡Legislature (Acts Regular Session, 256) was in force (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829, 1902, 1829a, 1829b). The trial court instructed the jury to find for the plaintiff, submitting as the only issue of fact for their determination the value of the cotton. The Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment in favor of defendant, holding that the verdict directed by the trial court was unauthorized, because under the facts shown by the sworn and undenied pleadings and the evidence the cotton was never actually or constructively delivered to defendant, and was not destroyed while in its possession. 175 S. W. 778.

Plaintiff in his petition, which was duly verified, alleged the delivery of the cotton to the defendant for transportation, and in support of the allegation introduced in evidence the bill of lading.issued by defendant prior to the fire, acknowledging receipt of the cotton. The defendant answered under oath, admitting the issuance of the bill of lading, but denying that the cotton was in fact delivered to it as recited in the bill of lading. The answer set out in detail the circumstances and conditions under which the bill of lading was issued; but no evidence was offered by defendant upon the issue of delivery in support of the allegations contained in the answer.

It is contended, however, that since plaintiff failed to file a reply to this portion of the answer, the facts stated therein should he taken as confessed under the act above referred to. The provision of the act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829) pertinent to the question under discussion reads as follows:

“If any special m'atter of defense shall be pleaded by the defendant, the plaintiff shall be required to answer to each paragraph, either admitting or denying the same, or denying that he has any knowledge or information thereof sufficient to form a belief. And any fact so pleaded by the defense that is not denied by the plaintiff shall he taken as confessed.”

We think it clear from the language used that this provision was intended to apply only to facts not already in issue by virtue of the allegations of plaintiff’s petition. To allege in affirmative language the converse of what the plaintiff has already alleged amounts merely to a denial of the plaintiff’s allegations, and does not constitute! special matter of defense, in contemplation of the provision of the act above quoted. The answer of defendant merely joined issue on the question of delivery placing the burden of proof on plaintiff to show that the cotton was in fact delivered to the defendant prior to the fire. The plaintiff made a prima facie case of delivery by introducing in evidence the bill of lading issued by defendant acknowledging receipt of the cotton; and, in the absence of any testimony on the part of defendant, the trial court properly instructed the jury to find for plaintiff upon this issue.

The bill of lading issued by defendant contained a provision that the carrier should not be liable for the destruction of the cotton by fire, and the contention is made that the burden was on plaintiff to show that the loss occurred through the negligence of defendant. Whatever may be the rule in other jurisdictions, it is well settled in this state that it is sufficient for the plaintiff, in a ease of this character, to prove ithat the goods were delivered to the carrier and that they have not been received at their point of destination. This makes a prima facie case of negligence, which the carrier must rebut, or the plaintiff will recover. Ryan v. Railway, 65 Tex. 10, 57 Am. Rep. 589; Railway Co. v. Manufacturing Co., 79 Tex. 28, 14 S. W. 785; Railway v. Richmond, 94 Tex. 576, 63 S. W. 619.

We cannot agree with the contention of counsel that, because plaintiff’s cause of action is based on a contract covering a foreign shipment, it is incumbent on the state courts to follow the holding of the Supreme Court of the United States, which is in conflict with that of the Supreme Court of Texas on this question. The Interstate Commerce Law, known as the Hepburn Act, 24 Stat. at L. 379-382, c. 104, as amended by what is known as the Carmack Amendment of June 29, 1906, 34 Stat. at L. 584, c. 3591 (U. S. Comp. St. §§ 8604a, 8604aa), was in force at the time of the shipment herein. The original act contained no provision regulating or affecting the liability of the carrier for loss or damage to property delivered to it for interstate or foreign shipment. The Carmack Amendment, which deals with such liability, applies only when the shipment is from “a point in one state to a point in another state,” and is without application to foreign shipments. The constitutional power of Congress to regulate contracts between the shipper and the carrier of a foreign shipment, by defining the liability of the carrier for loss, delay or damage to the property covered by such contract, cannot be doubted; but, in the absence of legislation by Congress upon the subject, the law of the forum will govern in determining thei liability of the carrier under such contracts. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Pennsylvania Ry. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268.

We think the contention of defendant in error that the verdict of the jury is not supported by the evidence should be sustained. The burden was on plaintiff, under the pleading, to show the amount of his damage. No evidence was offered as to the grade of the cotton or the number of. pounds destroyed. In the absence of such testimony, the jury could not correctly determine the amount plaintiff was entitled to recover. There being no evidence to sustain the finding of the jury on this issue, the judgment of the trial court must be reversed.

We are of opinion, for the reasons stated, that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for another trial.

By the Supreme Court.

PHILLIPS, O. J.

The holding of the Commission of Appeals on the questions discussed in its opinion is approved. The plaintiff’s failure to prove his damages requires a reversal of the trial court’s judgment. There was evidence from which the weight of the bales of cotton could be deduced, and of the value per pound at Athens of cotton of a certain grade, but there was no proof that this cotton was of that grade, and none at all as to its grade. We cannot assume that all cotton raised in North and East Texas in the year of this shipment was of the grade of basis middling — tbe grade to which the evidence of value here related, when it is universally known that cotton marketed in Texas in any year differs in grade and its value materially depends upon its grade. Such must be assumed for this verdict to be sustained. A court cannot blind its eyes to the knowledge of a fact which is notorious throughout its jurisdiction.

The judgments of the Court of Civil Appeals and District Court are reversed and the cause is remanded to the District Court for further trial. 
      <§c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     