Missouri Pacific Ry. Co. v. Insurance Co. , 84 Tex. 149 ( 1892 )

Appellant first suggests, that the court erred in sustaining plaintiff's exception to defendant's answer alleging the contract of shipment, by the terms, of which the defendant was exempted from liability for loss or damage to plaintiff's cotton by fire. The court below, in sustaining the exception, held that the contract of exemption was void, as in violation of article 278 of the Revised Civil Statutes, forbidding the limitation by carriers of their liability at common law. We have held in the case of the Missouri Pacific Railway Company v. Sherwood, Thompson Co., that the provisions of this statute do not apply to an interstate shipment, such being the character of the shipment described in defendant's answer. It follows, therefore, that the court erred in sustaining the exception.

In the event that on another trial the evidence should show that the fire which destroyed the cotton is chargeable to the negligence of the appellant, it becomes material to consider the second assignment of error. In this it is urged that the court erred in overruling defendant's special exception to all that portion of plaintiff's supplemental petition alleging the want of authority on the part of the shipper, J.P. Rus sell, to make the contract containing the clause subrogating to the defendant the insurance upon the cotton.

A carrier may stipulate in his contract of shipment for the benefit of any insurance that may have been effected upon the goods to be transported. Ins. Co. v. Railway, 63 Tex. 475; Railway v. Zimmerman, 81 Tex. 605. The effect of such a stipulation where previously thereto the shipper had obtained a policy providing that the insurer shall be subrogated to the claim of the insured against the carrier, is to invalidate the contract of insurance and defeat a recovery by the insured on the insurance policy. An action by the insurer can not be maintained against the insurance company, because by his inconsistent stipulation with the carrier be has defeated the insurer's right of subrogation. Carstans v. Ins. Co., 16 Am. and Eng. Ry. Cases, p. 142. In this case, therefore, the action of the insurance company, appellee, in paying the loss was purely voluntary. Under its averments, the payment was made with knowledge of the stipulation in the bill of lading by which the shipper had debarred himself of all right to recover on the policy. The payment was made without obligation, either moral or legal, resting upon the insurance company, and no right of subrogation could spring therefrom. Appellee's allegations seem to concede the correctness of this conclusion; but it contends that the contract of shipment with the carrier was made by an agent, and that he had no authority to contract for the stipulation referred to. It is admitted in the supplemental petition that Russell, the agent, was authorized to contract for the shipment of the cotton. This, we think, imparts the authority to make a contract containing the stipulation in question. Ryan v. Railway, 65 Tex. 13. In the absence of notice to the contrary, the carrier might rely upon the existence of such power in the agent. The supplemental petition does not allege that the carrier in this instance had notice of such want of authority. It is hence defective, and the appellant's exception should have been sustained.

Appellee further contends, that the subrogation clause in the bill of lading was without consideration, because there was no corresponding reduction in freight rates. We regard this clause as but one stipulation in an entire contract of carriage, supported by a sufficient consideration. It is not necessary that it should rest upon a separate and an additional consideration.

The judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted March 25, 1892.

A motion for rehearing was overruled at the Austin Term.