Ed Miniat, Inc. v. Baltimore and Ohio R. Co.

• Decision Date: 06 December 1978
• Docket Number: No. 77-1671,77-1671
• Citation: 587 F.2d 1277,190 U.S. App. D.C. 380
• Parties: ED MINIAT, INC. v. BALTIMORE AND OHIO RAILROAD COMPANY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1277

587 F.2d 1277

190 U.S.App.D.C. 380

ED MINIAT, INC. v. BALTIMORE AND OHIO RAILROAD COMPANY, Appellant.

No. 77-1671.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1978.

Decided Oct. 5, 1978.

As Amended Dec. 6, 1978.

Laidler B. Mackall, Washington, D. C., with whom William C. Kelly, Jr., Washington, D. C., was on the brief, for appellant.

Eugene D. Anderson, Washington, D. C., for appellee.

Before LEVENTHAL and MacKINNON, Circuit Judges, and JAMESON, ^* United States Senior District Judge for the District of Montana.

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

This appeal involves an action for damage to freight resulting from the partial spoilage of meat carried under refrigeration by appellant, Baltimore and Ohio Railroad Company (B & O) from Chicago to Washington. There is no question that the meat arrived in damaged condition although the railroad disputes the extent of this damage. The basic issue before this court is whether or not the appellee shipper, Ed Miniat, Inc. (Miniat), bore its burden of proving at trial that the meat, which was delivered under seal to the railroad for shipment, had been tendered to the carrier in good condition sufficiently to have established a prima facie case for B & O's liability under section 20(11) of the Interstate Commerce Act, 49 U.S.C. § 20(11) (1970) ¹ and the leading case of Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964). We conclude that the appellee did not satisfy his burden of proof, and accordingly reverse the judgment rendered by the trial court sitting without a jury.

On Friday, August 29, 1975, Miniat delivered two refrigerated truck trailers, which it had loaded with beef forequarters, to the B & O freight depot in Chicago for "piggyback" transportation to Washington. The shipment moved under "straight bills of lading" which stated that the goods were received in "apparent good order" ² and were marked for arrival in Washington on Tuesday, September 2nd. The trailers, travelling over the Labor Day (September 1st) weekend, in fact did not arrive until the night of September 5th. Moreover, as September 5th was a Friday and the consignee's Giant Foods (Giant) meat packing facilities were closed for the weekend, ³ the meat was not actually tendered to Giant until September 8th, nearly one week after the anticipated delivery date marked on the bills of lading. ⁴ Upon being tendered, the goods were rejected without inspection by the consignee "account delay." ⁵ B & O thereupon ordered the Railroad Perishable Inspection Agency, an independent agency established to investigate spoilage of goods transported by rail, to conduct an inspection of the contents of the trailers. ⁶ The agency reported that both trailer loads of Miniat meat were in off-condition; that the beef gave off an odor from slight to strong; that the cut surfaces of the meat and the fat were discolored; and that surface mold was evident on the rib eyes of the meat in one of the trailers. ⁷ B & O notified Miniat of the consignee's rejection of the shipment, ⁸ and appellee responded by stating that it abandoned the shipment, requested B & O to sell the beef for salvage, and informed the railroad that it would subsequently submit a damage claim. ⁹ B & O refused to attempt to find a purchaser for the meat, ¹⁰ and Miniat, after inquiring of the company from which the beef had originally been shipped to Chicago, ¹¹ if they knew of a firm which might purchase such a quantity of beef in off-condition, sold the shipment sight unseen to a party in New Jersey for approximately 65% Of the original contract price with Giant. ¹² B & O rejected Miniat's claims for the $15,185.28 difference between the salvage and contract price on the grounds that "the transportation record indicates that the trailer(s) moved in accordance with schedules and (that) the intransit temperatures were within the tolerance of requested service." ¹³ Thereupon, Miniat brought this suit.

I

It is well settled, and both parties agree, ¹⁴ that in order to prevail under section 20(11), the plaintiff must establish a prima facie case consisting of three elements: (1) delivery to the carrier in good condition; (2) arrival in damaged condition, and (3) the amount of damages, Missouri Pacific Railroad Co. v. Elmore & Stahl, supra; Chesapeake & Ohio Ry. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659 (1926); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 313 F.2d 864 (7th Cir. 1963).

Appellant's chief argument on appeal is that there was no competent evidence presented to the trial court to establish that the meat in question was in fact delivered to B & O in good condition. When goods travelling under seal are delivered to the consignee in imperfect condition, the shipper must submit proof of delivery in good condition other than the mere recital on the bill of lading in order to establish a prima facie case under section 20(11), Blue Bird Food Products Co. v. Baltimore & Ohio Railroad Co., 492 F.2d 1329 (3d Cir. 1974); World-Wide Meats, Inc. v. Chicago & N. W. Transportation Co., 383 F.Supp. 807 (N.D.Iowa 1974). ¹⁵ The issue before us thus resolves into determining whether there was presented adequate additional evidence of the condition of Miniat's meat when delivered to B & O to satisfy the requirement of Elmore & Stahl.

Appellee is able to produce only two facts besides the declarations on the bill of lading, which tend to establish the good condition of its beef when delivered to B &amp O: (1) Miniat's record of the incoming meat received at its plant on the day the shipment in question was processed, and (2) the presence of a USDA inspector on Miniat's premises. Upon careful examination of the record, we find that the probative value of this evidence is so slight as to be virtually negligible, and are convinced that to allow such "proof" to remove this case from the rationale of Blue Bird Food Products Co. v. Baltimore & Ohio Railroad Co., supra, would be to distort the holding of that opinion beyond recognition.

The arrival reports which Miniat presented as evidence of the good condition of the meat, when Miniat received it, are inconclusive, even if they could be definitely linked to the meat actually shipped to Giant. The temperatures recorded on such reports were consistent with beef in good condition, ¹⁶ but temperature alone is not direct proof and does not necessarily indicate the true condition of meat. Spoiled beef might simply have been cooled to the appropriate temperature shortly before delivery; the arrival report gives no indication at all, such as a description of the appearance of the meat, that it was examined and found to be in good condition. ¹⁷ There is also the possibility that the beef, even if it arrived in top condition, might have deteriorated during the time that it was being processed in the Miniat warehouse. Cf. S. Strock & Co. v. Southern Pacific Co., 326 F.Supp. 695 (D.Mass.1971).

II

The most crippling inadequacy of the arrival records as evidence of the condition of the meat when delivered to B & O, however, is not the inconclusiveness of the information they contain, but the fact that the records deal only with three of eight shipments of meat received by Miniat on the day it made up the order for Giant, and one of these three reports was so illegible that the appellee eventually decided not even to offer it as evidence. ¹⁸ Thus, only 25 per cent of the meat which Miniat might have packed into the B & O trailers was covered by the arrival reports. Appellee's own witness admitted that it was impossible to be sure that any of the meat shipped on B & O came from the three shipments for which reports were extant. ¹⁹ Indeed, he was not even able to tell from which of the eight loads received by Miniat on August 29th the shipment to Giant had been constituted, let alone whether the reports themselves covered any of the meat in question. ²⁰ The most that appellee could claim was that the meat shipped on B & O "may have" come from the meat whose arrival was recorded as having been at a temperature consistent with unspoiled condition. ²¹ This is insufficient proof of "delivery in good condition" to establish a prima facie case under Elmore & Stahl to hold otherwise would be to subject carriers to liability on the basis of no more than a mere possibility that they were responsible for damage to shipments. ²²

It appears that Miniat itself concedes that its arrival reports were inconclusive. Their position at the hearing seems to have been that these reports, when considered Together with the fact that there was a USDA meat inspector at Miniat, provided sufficient proof of the meat's condition when it left appellee's plant to establish a prima facie case under 20(11). ²³ The logic of this assertion is imperfect. Moreover, the evidence presented relating to the presence of a USDA inspector is as inconclusive as the arrival reports, and does little to advance Miniat's case.

Although there was testimony that there was a full-time inspector at Miniat, it also appeared that the same inspector might have had responsibility for checking on several other plants in the same area, ²⁴ thus reducing the likelihood that he in fact examined the particular shipment of meat consigned to Giant. Most importantly, no one was able to testify that the inspector actually examined any of the meat eventually shipped to Washington. Miniat's argument thus reduces to the contention that since there was a USDA inspector on the premises for at least part of the day, and it should be presumed that he would not let substandard meat out of the plant, the meat delivered to B & O under seal can be presumed to have been in good condition. The "presumption of law that all public officers perform their duties until the contrary is proven" ²⁵ on which appellee relies in arguing that the...