Upon a reconsideration of the entire record in this case, I have reached the conclusion that we erred in affirming the judgment of the trial court, and for the reasons hereinafter stated I respectfully dissent from the judgment affirming the case and from the holdings of the original opinion.
The appellees' petition constitutes an ordinary action for damages which they allege accrued to them by reason of a contract of transportation and the negligence of the appellant in handling and transporting a cotton conditioner, under the contract, from Dallas to Spade in Lamb County. As stated in the original opinion, the appellant was not authorized to transport the conditioner from Dallas to Spade and was operating in violation of the law when he did so. Article 911b, Vernon's Annotated Civil Statutes; Article 1690b, Vernon's Annotated Penal Code. Not only was appellant not authorized to transport the conditioner, but the cited statutes prohibited him from doing so, and the contract entered into between him and appellees was therefore void. *Page 696 Texas Employers' Ins. Ass'n v. Tabor, Tex.Com.App., 283 S.W. 779; Massachusetts Bonding Ins. Co. v. Gottlieb, Tex.Com.App.,15 S.W.2d 1020; Seeligson v. Lewis Williams, 65 Tex. 215, 57 Am.Rep. 593; Rogers v. Traders General Ins. Co., 135 Tex. 149, 139 S.W.2d 784,128 A.L.R. 1305; Montgomery Ward Co. v. Lusk, Tex.Civ.App.52 S.W.2d 1110; Payne v. Bassett, Tex.Civ.App.235 S.W. 917. The contract obligated the appellant to do a thing which he could not perform without violating a criminal statute and also the public policy of the State as declared by the Legislature in Section 22b of Article 911b, supra. The law is well established by the above-cited authorities and many others that if a complainant requires any aid from his own illegal contract to establish his case he cannot recover either the consideration provided in the contract or damages for its breach. It seems to have been recognized by the trial judge that appellees could not recover upon the contract of transportation, but he held that they could recover upon the theory that the appellant was a bailee for hire and it was upon that basis that he rendered judgment in their favor, and my associates approve that holding. It is doubtful that appellees could recover under that theory upon their petition, in which they based their case solely upon the contract of transportation. Texas P. Ry. Co. v. Langsdale, Tex. Civ. App.30 S.W. 681. However that may be, according to their petition, appellant was to be paid, and was paid, a compensation for the duties which he agreed to perform and if he was a bailee, it was for hire and not gratuitous or merely for accommodation of the bailor. Moreover, the appellees could not charge appellant with ordinary care in the handling of the property bailed to him without establishing the fact that he was a bailee for hire and in order to do this they were put to the necessity of establishing the contract because if appellant was merely a gratuitous bailee or a bailee for the accommodation of appellees, he was liable only for gross negligence in handling the property bailed to him. Gross negligence is defined by our courts to be an entire want of care which would raise a presumption of conscious indifference to consequences. Dallas City R. Co. v. Beeman, 74 Tex. 291, 11 S.W. 1102; Citizens' Nat. Bank of Jasper v. Ratcliff Lanier, Tex.Com.App., 253 S.W. 253. The petition did not charge appellant with gross negligence, nor did the testimony in the case establish negligence of that degree. Appellees were therefore put to the necessity of alleging, proving, and therefore drawing aid from the illegal contract of transportation, whether appellant be called a carrier or a bailee.
In the original opinion it is correctly stated that the agreement by which the appellant became a bailee for hire was an illegal one under Article 1690b, Vernon's Annotated Penal Code, and it was so found by the trial court. It was held, however, that, even so, in the course of his carrying out the agreement, the bailee owed to the bailor the duty of using ordinary care in keeping and handling the property. It was said that this obligation may be regarded as one imposed by law, springing out of the fact of possession of another's property. As an abstract proposition of law, that holding is correct but, in my opinion, it does not apply to this case, because this is a suit between the parties to the illegal contract. The principle of law applies only in cases where third parties come into possession of money or property by virtue of an illegal contract entered into by others, such as stakeholders of lottery tickets and the like. Matta v. Katsoulas, 192 Wis. 212, 212 N.W. 261,50 A.L.R. 291.
It seems obvious to me that if the appellees could not recover upon the contract under which the appellant was obligated to transport the machinery from Dallas to Spade because it was an illegal contract, then for the same reason they could not recover upon a contract of bailment because it likewise was illegal and, as I have already stated, they could not recover without drawing aid from it. In either event the same rule of law would apply and, since appellees were not entitled to recover upon any theory of the case and, therefore, nothing could be gained by remanding it for another trial, in my opinion, the motion for rehearing should be granted, the judgment of the court below reversed, and judgment here rendered that appellees take nothing by their suit. *Page 697