 ..
                         OF~FICE OF, THE All-ORNEY   GENERAL OF TEXAS         ‘~
                                              AUSTIN  ‘,;
      ‘OIOVE” PrnLLrn”.        :.‘~1                       :~ .,.
       w-4.             !-.’  : ‘1.  ,,’
       ATIO”*m*0.lI.llL
                                                                               -. I



     _..’
                 .a;.
            ~.       '.Bonorable~A. B. Con&,   Director
             '.'       Texas Agricultura1 Experiment Station (
                       Agrlcul~ural k Hechanlcal College of Texas
                    i College Statlon,,Texas
'.      :
       ::
                        '1
                         Dear:Sir: .;,,
                                     ,I,
                                      ;.,:;.:
                                           1.




                           _~                  the Central Texas Con&&
                                        l.,.::Is                           ,Compaiy
                           _.~responsible in',,any
                                                 vsy for this cotton? .:,,
                                    ”   .,   i.   ‘~



 .
 .
                            ;:
                            ; :         ~~'2. If the Central
                                                     Centr, Texas Conpress Company ~
                  13 responelble, What
                  is                   what prooedure
                                               prOO8dUr8 should
                                                           shoul+ be.folloved ..,.'
                t.~
                  in collecting~~or,t~3~loe~9:
                      collecting~~or,th+3 sloe??:           ..%(.
                                                            ..;~,'..
                                                                   I,,-"
                :      1    ..' ;:_,.
                                ::_,.
                                    ~.-...-
                                      -...-;
                                    .~..   ~..                            .,
                                                                  1: .,
                                                         :,. .. ,.;
                                                     ~.~..~*':
                                                            _:       ~.
                                         ,.:
 ._ ..''.                  *.,.'.,.
                                  .,~;: :        ~:
                                                  .~'
      ..         .'.
                   .,       ".~._.,.
                                 ?'   :. ..~.:~
                  ,'-, ".,:...;,..
                                ,,,..~.
     '.;' :      .,        .,.;:.~.':...
                                    "":,~.
                                        ,..,
                                         ';.;-;'-.
..              _...:.
                    :I,~,I~,:. ..,.'.'            :. :
   "0;ouuu.is;r,e*
       :      ,*,o'.r
                    &*iyrc;.i  1D..+"rwr*rri OPINIO*,~+.ss
                                         ~...~           *yvr. ."r*~,rr~T~o"w=r
                                                                          OL"L"AL
                                                                                0"rl,"sl.*.os7
                     __;~,y'.':,
                              : ; Y._         :~.
                                                : ,<..:
                                     '.~,,.>:,-,:;.
                                                .~.  ,,'.      ~'.',.
_.
,
     0’       ‘.               e
         .*

     ,




                   Ron. A. B. Conner - Page 2


                                  ArtlCl8 5632 (Section 21 of the Uniform Ware-
                   house Receipts Act) provides that Var8hOUS8men must exercise
                   care as rollovsl

                                  "A varehousaman shall be liable for
                                                                                    s
                        any loss or injury to the goods c&used by his-
                        failure to exercise such oar8-in.regard to &hem
                        as a reasonably,careSul ovn8r of similar goods
                        would exercise, but he ahall not be liable, ln v
                        the absance of any agreement to the contrary,      .
                        for any loss or injury to the goods vhich could
                        not have been avoided by the exercise of such
                        car8."                                                          &
                                  In CameronCompress Co. v. Whitingtoi, 280 S. W.
                   527, the'Commlsslon of Appeals passed upon a slmllar Saot sit-
                   uation. There one Whltlngton delivered to the compress company
                   98 bales OS COttOA, r8C8iYiIigfl'Ol8
                                                      the Company receipts 8X-
                   empting it from liability for damage by fire. The cotton was
                   destroyed by Sire, and suit vas brought to recover the value
                   of the cotton. The oompany asserted its exemption of llabll-
                   ity Sor~loss by Sire provided in the receipts.

                                   Rlckels, J. said8

                                  "The receipts' vords (wherein liability
                        for loss through Sire is precluded) encounter re-
                        strictions In th8 inability of the company, as a
                        matter of laV, to exempt itself from the COnSe-
                        quence of its negligence. The stipulation, there-
                        fore, must be considered as it read!! ILoss by
                        Sire, not caused or contributed to by the com-
                        pany's negligence, 8xcepted.1 The COntraOt obll-
                        gated the oompsny to redeliver the ootton 'or to
                        pay the market value thereof' upon demand eta.,
                        unless the cotton had been destroyed by Sire
                        caused Oth8rVis8 than by its negligence. The
                        statute also imposed the duty. Articles 5619,
                        5633, R. S. 1925. Since the property vas destroyed
                        by Sire, the controversy la to be finally solved
                        as the presence or absenoe OS negligence reQU.l~eS."
:.


      Hon. A. B. Conner        - Pa80 3


                            In Exporters' & Tradere' C. & W. Co, vs. Btir-
      gainer,       45 5. W. (2) 563, Justice Sharp, vho vaL th8A   On’the
      ~0rmni8~10n     0s   Appeals, said:

                      "Article 5632 la merely declaratory of
            the VU18 already
                          ._    announced by the authoritative
            d8ClSlOnS Vlth   rSSpSCt  to the llablllty of a vQr8-
            houseman for goods left for storage vlth him.
            The rillehas long been settled that a varehouecnnn
            cennot insert provisions in the receipt vhich would
            relieve him from the consequences of his own ncR-
            ligt3lUX3. Words used in the receipt or contract
            that th8 varehouseman shall not be r8sDonsible
            for certain causes of damage or injury-such as fire,
            vater, etc., is generally held not to exempt the
            varehouseman from the results of his ovn negllgenoe
           'or relieve .hlm from the exercise of reasonable
            car8." (Emphasis ours)

                      From:the above statute and decisions, it can
     ;,;.be
          seen that a varelaousemancannot exempt himself from lla-
       bllity for his ovn aegligence, However, the plalntlrr has
       the burden of proof to shov that the Sire va8 the result of
      ~the negligence of th8 warehouse Company or its employees.
      Exporters' 2cTraders' Compress and Uarehouse Co. Y. Schulse,
       (Comm. App.) 265 S. W..l33.

                     X8 ansv8r your first question, ~83, is it can
      be proved that the War8hOUS8 company Sailed to exercise such
      car8 In regard to the cotton in question as a reasonably careful
      ovner of similar goods.vould have exercised under the 883118
                                                                 or    ,
      similar circumstances.

                            In ansver to your second question,we re-
      spectfully request that you furnish us vlth all the informs-
      tion you have about the origin and cause 0s this fire, and
      the names of all witnesses. Is, after lnvestlgatlon, v8 are
      satisfied that the company vas negligent, we vi11 lnstltute
      suit for the recovery of the value of the cotton destroyed.
                                               Yours very truly
