Haynie v. Baylor

Wheeler, J. In Chevalier v. Strahan et al. (2 Tex. R. 115,) it was laid down as a general rule, “ that all persons “ who transport goods from place to place for hire, for such “ persons as see fit to employ them, whether usually or occa- “ sionally, whether as a principal or incidental and subordinate “ occupation, are common carriers, and incur all their respon- “ sibilities.” There can be no doubt that the defendant had been accustomed occasionally, to pursue the occupation of a common carrier. But there was evidence of his having abandoned or discontinued the occupation ; and there was evidence also of his having again resumed, or expressed the intention to resume it, previous to the employment in this instance. If there had been any evidence that he was holding himself out as a common carrier at this time; or if indeed the contrary did not clearly appear, this case could not be distinguished, on principle, from the case of Chevalier v. Strahan. IÍ one is accustomed to undertake, for hire, to transport the goods of those who choose to employ him, though it be not his constant or usual, but only an occasional occupation, he is a common carrier within the rule there laid down.; at least, whenever he holds himself out in any way to the public as a carrier, or undertakes as a matter of business and profit, the transportation of goods. (1 Parsons on Con. 639 et seq. and notes; Angell on Carr. Sec. 72.) But because one whose principal occupation is farming, does this occasionally, and at certain seasons only, is he therefore necessarily to be deemed to incur the responsibility of a common carrier, at all seasons, and in reference to every contract he may make to carry goods, under whatever special circumstances ? We think not. Suppose he were applied to during the planting season, when he did not wish the employment, and did not accept it as a matter of [508] profit, but consented as a matter of accommodation to a neighbor, and at a sacrifice to himself, though he received the usual compensation ; such a case would not come within the reason or policy of the law; and the party could not, I apprehend, be held to incur the responsibility of a common carrier. It would be difficult to assign any reason why he should be held to any other responsibility than that of a private carrier, or one who undertakes to carry for hire in a particular instance and under a special contract. Such a case does not seem very plainly distinguishable on principle from the present. The defendant went to Texana on this occasion to carry to market a remnant of his own crop of cotton ; and to bring back in turn a load for himself. To complete his load down he took some cotton also for the plaintiff; but it is evident he did not expect to bring a load for the plaintiff on his return, or hold himself out for'employment; for he engaged a return load for himself. At the earnest solicitation of the plaintiff's agent he relinquished his own load, though very reluctantly, and as he declared at the time, only as a matter of accommodation to a neighbor. He did not accept the employment as a matter of choice or of profit; but only as a matter of favor and accommodation. He had not been accustomed to haul from Texana; and one object he had in view was to see the country. It was not usual for goods .to be forwarded to LaGrange by that way ; it was the only instance known to the witnesses. The mere fact that the defendant was solicited to carry the goods is entitled, it is true, to but little weight. If a common carrier in fact,fit could make no difference whether he solicited the particular employment, or was solicited to accept it. His responsibility would arise from the fact that he undertook, for hire, the carriage of the goods of those who chose to employ him ; and his being solicited to carry for a particular individual would not lessen his responsibility. But taken in connexion with the other particular circumstances attending this case, we think it entitled to some weight. Under all the cir [509] cumstances, we think it was not improper for the Court to leave it to the jury to decide, under the law as given in the charge, whether, upon the facts, the defendant ought to be held to the responsibility of a common carrier, or whether, as to the particular employment, he was not a private carrier, and only responsible as such. , The law was correctly given in charge to the jury. We cannot say their finding was contrary to the evidence, and are of opinion that the Court did not err in refusing to set aside the verdict. But there was error in overruling the plaintiff’s objection to the reading of the answer to the thirteenth interrogatory. The interrogatory manifestly sought the opinion of the witness, and the answer gave it, as to a matter of fact, respecting which, it is not pretended the witness had any scientific, professional, or other peculiar knowledge, or was in any respect better qualified than any one else to form a right opinion upon the facts as to which he deposed. His mere opinion as to the cause of the burning was not evidence, and should not have gone to the jury as such. It was for the witness to depose only as to the matters of fact which came to his observation or knowledge, and leave the jury to draw their own conclusions from the facts and circumstances deposed to. There is nothing in the case to take it out of the general rule, that the opinions of witnesses are not to be received as evidence. (1 Greenl. Ev. Sec. 440.) The judgment must be reversed and the cause remanded. Reversed and remanded.