dissenting.
I respectfully dissent. While I agree with the majority’s view that a carrier has the duty of reasonable care in collecting payment, I disagree with its disposition. I would remand for a new trial, because I believe trying and submitting Swest’s comparative negligence was harmful error.
The trial focused on Swest’s comparative negligence. Besides denying its own negligence, American Airlines’ major defense at trial was to contend that Swest was negligent in not identifying and investigating its customer. Eight of the eighteen issues asked about Swest’s comparative negligence. Issues 11-16 asked whether Swest had failed to identify and investigate its customer’s background and whether such failure was negligence. Issues 17 and 18 asked the jury to apportion the negligence between Swest and American Airlines. Swest timely and properly objected. The jury found Swest 100% negligent, American 0%.
A shipper’s negligence is not relevant in C.O.D. collection disputes for several reasons. First, submitting issues on a shipper’s comparative negligence undermines the purpose behind the parties’ contractual arrangement. Shippers contract for C.O.D. services at a large premium because they do not trust their customers:
The seller [the shipper] generally utilizes the C.O.D. contract because he either does not trust the buyer or does not intend to advance credit_ [W]hen utilizing the C.O.D. method the seller clearly indicates he wants liquid assets, not a contract claim against the distant buyer who may be insolvent, litigious, dishonest, or all three.
Littleton Stamp & Coin Co. v. Delta Airlines, Inc., 778 F.2d 53, 57 (1st Cir.1985), quoting Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1379 (9th Cir.1978). This court, however, penalizes shippers for selling to untrustworthy customers — the very reason why shippers purchase C.O.D. services. The majority is saying that Swest is negligent for sending its shipments C.O.D. — for using American Airlines’ contractual services. Such a position is untenable.
Second, while the carrier’s duty of reasonable care arises from the C.O.D. contract, Swest has no contractual duty to investigate its C.O.D. customers, and there is no reason to impose such a tort duty upon shippers. Thus, the Restatement of Agency (Second) § 426, which deals with the duties of principals and agents in making collections, does not mention any duty of shippers (principals) to identify and investigate their customers.
Furthermore, arguing and submitting the shipper’s negligence distracts the jury from the real issue: whether the carrier used reasonable care in collection. Because in these cases consignees are defrauders, every trial will be a debate over whether the carrier was negligent in collecting or the shipper in failing to investigate its customer, and the jury’s focus will be divided and blurred. This provides carriers with an unwarranted tactical advantage.
This error was harmful. When issues are submitted improperly, we consider the error in light of the charge as a whole. *549Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980); Texas Employers Ins. Ass’n v. McKay, 210 S.W.2d 147, 149 (Tex.1948). Although generally when the jury’s answers to other issues are sufficient to support the judgment an erroneous submission is harmless, an erroneous submission is reversible if it confuses, prejudices, or misleads the jury. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d at 750; H.E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 504 (Tex.Civ.App. — San Antonio 1949, writ ref’d n.r.e.).
The submission of Swest’s negligence confused and misled the jury. Although Swest’s negligence is irrelevant, almost half the special issues submitted and much of American Airline’s argument to the jury concerned this issue.
Moreover, the evidence for American Airlines’ negligence was formidable, again indicating that the jury was confused and misled. American Airlines provided its courier with no training for spotting fraudulent checks and driver’s licenses. According to American Airlines’ own expert, it was “readily apparent” to a trained person that Barter’s driver’s license was fictitious. If the courier had spotted, as he should have, the fictitious license, then he would have rejected the fraudulent checks.
Lastly, Swest demonstrated that it was easy and affordable for couriers to carry copies of certified checks from the area’s banks, although American Airlines’ courier did not. If he had, then he would have noticed obvious discrepancies between a genuine certified check from Marine Midland Bank and the fraudulent check presented American Airlines: (1) on a genuine check, below the word “certified” is printed “payable only as originally drawn and when properly endorsed,” which does not appear on the fraudulent check; (2) on a genuine check, the date appears to the left and the control number to the right, whereas they are reversed on the fraudulent check; (3) on a genuine check’s stamp, “110 Williams Street” follows “Marine Midland Bank” and under that appears “New York, New York,” whereas in the fraudulent check, “Williams Street Branch” follows “Marine Midland Bank,” which appears in much smaller print, and there is no reference to New York.
Relying upon Boatland of Houston, Inc. v. Bailey, American Airlines, however, argues that if there were error in submitting Swest’s negligence, it was harmless. In Boatland, the jury found that the product was not defective and that the plaintiff had both assumed the risk and misused the product. We held that even if it were error to submit issues on the plaintiff’s misuse and assumption of the risk, it was harmless because the jury found the product not defective- 609 S.W.2d at 750. At that time, we were unwilling to address the relevance of the plaintiff’s contributory negligence, but the law was clearly moving in that direction and therefore we found harmless error. See Duncan v. Cessna, 665 S.W.2d 414, 423 (Tex.1984). In this case, however, an important defense at trial and almost half the issues submitted focused on a totally irrelevant legal issue, the shipper’s failure to investigate and identify its customer.
Because I believe a shipper’s negligence is irrelevant in C.O.D. collection disputes, I would remand the cause to the trial court for a new trial.