Bonura & Co. v. Payne
| Decision Date | 12 December 1927 |
| Docket Number | 10,024 |
| Citation | 7 La.App. 754 |
| Parties | BONURA & CO. v. PAYNE, Director General, Etc |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing Refused January 2, 1928.
Appeal from the Civil District Court, Division "D". Hon Mark M. Boatner, Judge.
Action by John Bonura & Company, Inc., against John Barton Payne Director General, Etc.
There was judgment for defendant and plaintiff appealed.
Judgment reversed.
Miller, Miller & Fletchinger, of New Orleans, attorneys for plaintiff, appellant.
Harry McCall, of New Orleans, attorney for defendant, appellee.
Petition, which was filed on June 1st, 1921, states that plaintiff purchased a car load of cantaloupes in good order from the Randolph Marketing Co. at Brawley, Cal., for six hundred eighty-four and 85-100 ($ 684.85) dollars f.o.b. Brawley, and it was shipped on June 25th, 1919, under a bill of lading, copy of which is attached; that through unreasonable delays or negligent handling cantaloupes were delivered over-ripe, soft and decayed, and that petitioner sold them for the best price obtainable, seven hundred seven and 10-100 ($ 707.10) dollars, that the freight paid by petitioner amounted to three hundred seventy-eight and 99-100 ($ 378.99) dollars and petitioner suffered a loss of three hundred fifty-six and 74-100 ($ 356.74) dollars, for which he promptly filed claim without avail. Petitioner then avers that the car arrived with one crate missing and that said crate had been stolen while in possession of defendant.
The defendant, while admitting the receipt of the goods in good order and their delivery in bad condition, makes in his answer two special defenses to the action in the following words: "If said shipment deteriorated during the time it was in respondent's possession, then and in that event such deterioration was due to the condition or vice of the shipment at the time it was delivered to respondent for shipment and/or the manner in which the said shipment was crated and loaded, the crating and loading being done by shipper and not by carrier."
Respondent pleads Par. 2 of Sec. 1 of the conditions of the bill of lading and admits loss of one crate, but denies all negligence and obtention of best price for damaged goods by plaintiff. No objection is made to method of fixing damage.
There was judgment below in favor of defendant and plaintiff has appealed.
The evidence shows that the cantaloupes were shipped from Brawley, California, on June 25th, 1919, in good order and condition for a long haul; that they arrived in New Orleans on July 4th, 1919, at 5 p. m., nine days later; that they were high-grade "fancy cantaloupes" carefully packed and carefully inspected and carefully loaded; that such fruit should have stood a shipment of ten to fourteen days, if car were properly handled; that other shipments made from same crop during that immediate period harvested, packed and inspected in the same way stood a shipment of thirteen days for longer hauls without deterioration; that twenty to thirty per cent of cantaloupes actually picked in the field were rejected before packing; that plaintiff was notified on July 5th at 9 p. m. of arrival of car and at once inspected it with his broker and yard clerk of defendant, Coombes, who then signed an inspection certificate (which was identified on the trial below and filed in the record) stating that cantaloupes arrived "Over-ripe and soft, 1 crt. robbed".
Allegations of plaintiff as to cost and selling price and consequent loss were proved as alleged.
John Bonura, president of plaintiff company, stated that he inspected the car at 9 a. m. on July 5th with Coombes and his broker, Lally, and found fruit overripe and soft; that the damaged cantaloupes were sold from the car, without advertising, as quickly as possible, but it took until July 12th to dispose of the entire lot; that the ice bunkers were only one-quarter full and there was not sufficient ice, that he opened the car himself and found one crate missing; that he went on the roof of the car and pulled the block out to see exactly how much ice there was in the bunkers, that he and his partner and a salesman solicited the dealers on Poydras street, the main produce market, but he did not send this car to Fruit Exchange for sale as he sometimes did, because he thought it best to sell direct to trade; the melons received two days later were in good condition; that he figured to make one hundred ($ 100.00) dollars to one hundred fifty ($ 150.00) dollars profit on a car; that he supposed car was re-iced after it was turned over to him, as he employed a clerk especially for that.
Lally, the broker, confirmed Bonura as to damage inspection.
Wilkinson, plaintiff's clerk, confirmed him as to selling price and as to obtention of the best price possible. He also stated that cars usually arrived in nine days from California and this fruit was in his opinion damaged because of poor icing.
Plaintiff's receipt and release for twenty-four and 15-100 ($ 24.15) dollars, in full settlement for the "robbed crate" together with court costs up to that time was filed by defendant.
Coombes, team track clerk for defendant, states that car arrived with ice bunkers five-eighths filled, and he put in three thousand pounds more on July 4th and signed certificate above referred to on July 5th about 9 a. m.
Defendant offered in evidence the deposition of twelve employees, located at the various icing stations between Brawley and New Orleans, who testify that the car was properly iced and handled promptly, except at one point when a delay of one day was caused by a sudden washout, which was repaired with all possible expedition.
As the above quoted evidence shows that the cantaloupes were shipped in good condition and arrived here in bad condition, and as it further shows that similar shipments from the same crop at same time stood a longer shipment, the burden of proof rested on defendant to show the cause of the damage and we do not consider that the proof as to usual filling of the bunkers with ice and prompt handling of the car is sufficient to rebut the presumption of negligence under all the attendant circumstances.
In this case there is one outstanding fact which the defendant has entirely failed to explain, namely the "robbed crate", for the doors of the car must have been opened if robbers removed the crate and the evidence shows that the opening of the car doors and the admission of warm air inevitably tends to over-ripen the fruit. The natural and usual presumption from proof of prompt handling and the customary re-icing of such cars is rebutted in this instance by the unavoidable conclusion that somewhere en route the doors of the car were opened.
...
To continue reading
Request your trial
-
Close v. Missouri Pac. R. Co.
..." Carrier was liable for damage to intrastate shipment of cotton by reason of fire originating from unknown cause." The court held in the Bonura & Co. case that where became overripe and soft in transit, although it was shown that the car was iced at the usual places, the carrier, notwithst......
-
John Bonura & Co., Inc. v. Texas & N. O. R. R. Co.
... ... the defendant ... The ... burden of proof is unquestionably upon the carrier to prove ... itself free from negligence. Guidry v. Texas & Pacific ... Railway [14 La.App. 597] 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 ... ...
-
Joseph Chalona Co. v. American Railway Express Co.
... ... very substantial loss to the shippers and we cannot eliminate ... it from our consideration ... Our ... attention is called to Bonura & Co. vs. Payne, Director ... General, etc., 7 La.App. 754, a case very similar to the ... one before us and in the syllabus of which we said: ... ...