Texas-Arizona Motor Freight, Inc. v. Bennett

324 S.W.2d 32, 1959 Tex. App. LEXIS 2388

• Court: Court of Appeals of Texas
• Decided: April 29, 1959
• Docket: No. 10661
• Status: Published

Opinions

ARCHER, Chief Justice.

This is an appeal from a judgment against appellant for damages to a shipment of cigarette vending machines, and is based on four points to the effect that the evidence is insufficient to support the judgment because there is no evidence that the shipment was undamaged at the time it was delivered to the initial carrier, and no evidence as to the market value of the vending machines in an undamaged condition, or in their damaged condition, and no proof that appellee is the holder or as-signee of a valid bill of lading.

The ten machines were ordered from a manufacturing company in Kansas City in November 1957 and were shipped from Little Rock, Arkansas to Ruling, Texas by mesne carriers. By the Car-mack Amendment, 49 U.S.C.A. § 20, the initial carrier and the delivering carrier are made liable to the holder of a valid bill of lading for any damage occurring in the course of transportation, such carriers are liable only for negligence. Panhandle & Santa Fe Railway Co. v. Andrews, Tex.Civ.App., 278 S.W. 478, er. dism.

If, however, a showing is made that the shipment was delivered to the initial carrier in good condition and received from the terminal carrier in bad condition, a prima facie case of negligence is made. Thompson v. San Pat Vegetable Company, Inc., Tex.Civ.App., 207 S.W.2d 195, er. ref., N.R.E.

Appellee was the only witness to testify in the case and we do not believe such testimony is sufficient to show that the shipment was undamaged at the time it' was delivered to the initial carrier.

Appellant testified that he ordered some cigarette vending machines from a company in Kansas City and when he received the machines they were damaged considerably, on the inside of five and on the outside of the other five; that he first saw the machines in the freight office; that he paid $2,295 for the machines and that the amount of damages was $1,172.50.

Mr. Bennett testified that he never saw the original bill of lading issued in Little Rock to the shipper by the carrier which initiated the carriage, and such was not introduced and no presumption of negligence was raised against the carrier. Missouri Pacific Railroad Company v. Trautmann Bros., Tex.Civ.App., 301 S.W.2d 240, er. ref., N.R.E.; Texas & Pacific Railway Co. v. Empacadora De Ciudad Juarez, S.A., Tex.Civ.App., 309 S.W.2d 926, er. ref., N.R.E.

The appellee did not prove the market value of the machines in an undamaged condition or in a damaged condition, and this would be the measure of damages, and consequently the judgment cannot be sustained. 8 Tex.Jur. “Carriers”, Sec. 224, pp. 333-6; Matthews-Carr v. Brown Express, Tex.Civ.App., 217 S.W.2d 75; East Texas Motor Freight Lines v. W. H. Hutchinson & Son, Tex.Civ.App., 241 S.W.2d 759, er. dism.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.