John Bonura & Co. v. Texas & N. O. R. R.

126 So. 593, 14 La. App. 351, 1930 La. App. LEXIS 382

• Court: Louisiana Court of Appeal
• Decided: March 10, 1930
• Docket: No. 11,879
• Status: Published

Opinions

HIGGINS, J.

Plaintiff sues defendant for the sum of $406.75 damages alleged to have been sustained' on a shipment of a car containing 320 crates of “Iceberg Lettuce,” consigned to plaintiff at New Orleans by Louis . Garat from Colma, Cal., on July 27, 1927; the car arriving at its destination over the lines of defendant as delivering carrier on August 5, 1927.

The petition charges that the loss and damages sustained to the lettuce resulted from the improper handling of the goods in transit; the failure of the carrier to transport the perishable goods in a car properly cooled and conditioned with equipment especially adapted to that purpose; to steadily maintain the requisite refrigeration from point of origin to time of delivery to petitioner.

The defendant admits the issuance of the bill of lading, but denies all other allegations in the petition, and especially pleads that “if the condition of the said shipment when delivered at destination was not good (which is denied for want of information) that this was due to a defect or vice in the property or to causes for which the carrier had no control and for which they were not responsible.” In this connection respondent specially pleaded section 1 of the bill of lading under which the shipment moved.

There was judgment in favor of plaintiff for the full amount of the claim, and defendant has appealed.

The pertinent parts of the bill of lading read as follows:

“Dry car — Vents closed plugs in to first icing station. Ice to full capacity at first icing station, adding two per cent salt of tank capacity. Keep fully iced to destination, adding two per cent salt of amount ice furnished with each re-icing. 7500 pounds top ice.”

“Section 1. (b) No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage * * * except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit under the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from riots or strikes.”

The record shows that Louis Garat, the shipper, had fourteen years’ experience as a shipper and distributor of fruits and vegetables in California. That the plaintiff has been in the business of buying and selling fruits anc vegetables in the city of New Orleans for a number of years. Plaintiff ordered a carload co~taining 320 crates of “Iceberg Lettuce” from Louis Garat. At the request of the shipper the lettuce was inspected by a representative of the United States Department ‘of Agriculture (Bureau of Agricultural Economics), whose certificate of inspection was introduced in evidence by plaintiff, and as far as concerns the quality and condition of the lettuce reads as follows:

“Lettuce fresh, crisp and well trimmed. Wrapper leaves good green color. Stock free from defects, consists of about 60% firm and 25% fairly firm; 15 to 20 per cent soft or tip burn.”

It is explained by witnesses for plaintiff who are experienced in the handling of vegetables and fruits that 60 per cent firm means that the lettuce is of such solidity that it is desirable; 23 per cent fairly firm means it is not quite as good as firm but still comes within the grade considered as desirable lettuce; and 15 to 20 per cent tip burns means that the lettuce shows a slight burn or brownish burn on the outer tips or edges of the outer leaves which can be caused by several elements or growing conditions, but does not affect the soundness of the lettuce. In short, the testimony of the plaintiff established unquestionably that the lettuce was in good and sound condition at the time that it was loaded into the car, and if placed in a refrigerator car properly equipped and iced should have been in good and sound condition upon its arrival in New Orleans. The shipment left Colma, Cal., about 7 p. m. on July 27th, and arrived in New Orleans on Friday, August 5th, about 6. a. m. — nine days later.

The plaintiff admits notice of the arrival on August 5th. Mr. Bonura testifies that hé inspected the goods on the same day it arrived and found the lettuce in bad condition, generally affected' with a slimy decay or rot. That he declined to accept the shipment and immediately took the matter up with the shipper’s broker in New Orleans as to the responsibility for the damaged goods. After communicating with the shipper concerning the condition of the lettuce, the shipper insisted that the lettuce had been inspected at point of origin and was in good and sound condition as appears from the government certificate of inspection, hence he was not responsible for any loss, and that plaintiff must look to the defendant carrier.

Plaintiff then accepted the goods from the defendant on August 9, 1927. On the day of acceptance pláintiff requested a federal inspector to inspect and report as to the condition of the lettuce. The report is as follows:

“In outer row of crates next side walls of car, decay ranges from 4 to 50%, average for these crates approximately 20%. In 3 center rows of load in most crates from 4 to 25%, few none, average for the three center rows of crates approximately 10%. Decay is Slimy Soft Rot- affecting generally from 3 to 5 leaves.”

Plaintiff then caused it to be sold at public auction by the Fruit & Produce Exchange, Inc., whose business it is in this market to sell such products. It appears that the Exchange sells only on Monday, Wednesday and Friday. Due to the negotiations with the shipper concerning responsibility for the damages to the lettuce, the ear was accepted on August 9th, and offered for sale on Wednesday, August 10th. All of the lettuce was not sold on the 10th, and the balance twas sold on the 12th.

The goods were sold for $889.25. The market price of the lettuce at the time and place of delivery would have been $1,'296 had the lettuce arrived in good condition. Plaintiff therefore claims the difference between the market price of good lettuce at the time of delivery and the amount realized from the sale of the damaged lettuce as the loss which it sustained, or $406.75.

The defendant’s evidence shows that the refrigerator car in which the lettuce was shipped was properly equipped and cleaned and the vents closed and plugs in; that the car was properly inspected and ice and salt added to the bunkers at ten stations en route, not including the initial station. The car was inspected by defendant three times in New Orleans and ice and salt added to the bunkers once before plaintiff accepted the shipment. Most of the evidence of the defendant is taken by deposition, the witnesses testifying that they were referring to the company’s records, although the original records were only produced in two instances. In short, the evidence offered by defendant, if accepted as true, would show that the refrigerator car in which the lettuce was shipped was in good condition and properly equipped and cleaned; that it was thoroughly iced to its capacity at the point of origin and at ten intervening stations en route was re-iced and salt added in accordance with the instructions of the shipper; that the car arrived in New Orleans with the seals intact within nine days or under schedule time for such shipment; and that upon arrival of the car in New Orleans the bunkers were re-iced to their capacity and salt added and that proper refrigeration was maintained from the time the car left Colma, Cal., until it was accepted by plaintiff in New Orleans.

We therefore have a situation before us where the plaintiff’s evidence, if accepted as true, proves a case of liability against the defendant carrier. On the other hand, if the evidence of the defendant is accepted as true, it has proved itself to be free from fault and negligence but has failed to prove the reason why the lettuce deteriorated or decayed.

We are of the opinion that the certificate of inspection of the representative of the United States Department of Agriculture and the other evidence offered by plaintiff in support thereof proves that the lettuce was “fresh, crisp and well trimmed” when loaded in the car on July 27, 1927. The federal inspector’s report of August 9, 1927, offered in evidence by the plaintiff and supported by the plaintiff’s other proof, establishes the fact that when the car was opened on that date the lettuce was generally in a state of decay or slimy soft rot affecting three to five outer leaves. It is established that the market was up at the time the merchandise arrived on August 5, 1927, and that the plaintiff could readily have disposed of the lettuce at a substantial profit. Therefore, there can be no good reason why plaintiff would refuse to accept the shipment when delivered, unless the merchandise was in the state of deterioration or decay which Mr. Bonura says the lettuce was, the day he inspected it on its arrival. If the market were down at the time, there would be a reason for saying that the plaintiff misrepresented the condition of the merchandise when it was delivered. However, such is not the case here.

We are also satisfied that the acceptance of the car on August 9th, and the sale of the merchandise on the 10th and 12th, respectively, was effected as promptly as possible under the circumstances and the loss minimized as much as possible.

The witnesses for the defendant, who iced the car en route, admitted that if the merchandise were in sound condition at the time it was placed in the car, and if the car was properly equipped and iced, the lettuce would have been in good merchantable condition upon its arrival in New Orleans, and that perishable merchandise or vegetables were regularly shipped from California to New Orleans in refrigerator cars without affecting their merchantability. It is impossible to reconcile these statements with the other statements of the witnesses that their records show that the car was properly cleaned, equipped, and iced at the initial point and proper refrigeration- maintained in transit and in New Orleans up until the time of acceptance by the plaintiff. The defendant non-resident witnesses’ testimony taken by deposition shows the number of pounds of ice remaining, in the bunkers upon the arrival at the respective ten ■ stations where the car was re-iced and salt added. The testimony of the witnesses at New Orleans as to the icing of the car shows merely an approximation of the quantity of the ice in the bunkers, i. e., seven-eighths, thirteen-sixteenths, eleven-sixteenths full, and the number of pounds of ice and salt added; but these witnesses admitted that it is impossible to tell how many pounds of ice remain in the bunkers without actually taking the ice out and weighing it. This testimony, therefore, is inconsistent with the testimony given by the non-resident witnesses. It is to be noted that the capacity of bunkers of the car was 10,600 pounds of chunk ice. Apparently the reports used by the non-resident witnesses in giving their testimony as to the re-icing at the respective stations, the number of pounds of ice remaining in the bunkers was approximated by deducting the number of pounds of ice added from the total capacity of the car. Nevertheless, a tabulation of the icing records as testified to by the non-resident witnesses gives the number of pounds of ice remaining in the bunkers as a mathematical certainty and not as approximations. All these reports are alike in this respect; add the number of pounds of ice remaining in the bunkers to the number of pounds of ice that was placed in the bunkers makes the total number of pounds of ice in the bunkers exactly equal to their total capacity of 10,600 pounds.

We are impressed with the fact that the decay was general throughout the car and only the outer leaves of tho lettuce were affected. This would indicate there was no inherent vice in the lettuce that caused it to deteriorate but improper refrigeration. The inspector’s report shows greater percentage of decay in crates next to the walls of the car than other parts of the car.

Realizing that great weight must be given to the certificates of the federal inspectors at the point of origin and destination concerning the condition of the lettuce, counsel for defendant argues that we only have Bonura’s statement that the merchandise was in a decayed state when it arrived on August 5, 1927; and that in going in and out of the car warm air may have gotten into the car and caused the slimy rot reported by the inspector on August 9, 1927. This argument is not tenable for the reason that defendant’s evidence shows that the car was inspected three times after its arrival in New Orleans and that it was necessary only once to add 3,000 pounds of ice and 60 pounds of salt from period of August 5 to August 9, 1927. Further, plaintiff’s evidence shows it is customary for merchants to open the cars and inspect them upon their arrival, and that going in and out of the car will not affect the perishable goods if the door is not left open. Finally there could be no motive for the plaintiff to say the merchandise was damaged, as the market was up and plaintiff could have sold the lettuce at a profit.

The judge a quo found that the merchandise was in good condition when shipped and in a decayed condition when received, and that the perfect icing record by the railway company cannot be reconciled with the rotten and decayed 'condition of the lettuce upon its arrival in New Orleans, and that the railway company had failed to exculpate itself from liability. In short, as we view the reasons for judgment as given by the trial judge, he believed the evidence and testimonj' of the plaintiff and did not believe the evidence and testimony of the defendant.

The burden of proof is unquestionably upon the carrier to prove itself free from negligence. Guidry v. Texas & Pacific Railway Co., 6 La. App. 169; Bonura v. Payne, 7 La. App. 754; and Chalona v. American R. R. & Express Co., 11 La. App. 18, 123 So. 147.

In the case of Guidry v. Texas & Pacific Railway Co., supra, a similar case was presented involving a shipment of vegetables from Hahnville to Chicago and delivered in bad condition. In reviewing the testimony of the defendant’s witnesses in that case, this court said:

"But the' testimony of these witnesses must be taken with all the influences of interest and uncertainties of times and conditions. They handle thousands of cars and speak of occurrences years behind and mostly from records. There is every occasion for error and confusion.”

In the case of Chalona v. American R. R. & Express Co., supra, this court in speaking of the limitation of liability for loss resulting from defects or inherent vices contained in the bill of lading, said:

“This limitation, however, does not relieve the defendant of the obligation of proving that the cause of the loss was one of the things within the limitation.”

The evidence in this case does not, in our opinion, bring defendant’s case within any of the limitations of liability provided in the bill of lading.

As we view the case an issue of fact is primarily involved, and a careful reading of the record does not convince us that the judge a quo was manifestly in error.

Judgment affirmed.