Frischhertz Elec. Co. v. Strickland Transp. Co.

• Decision Date: 29 June 1972
• Docket Number: No. 51687,51687
• Citation: 264 So.2d 646,262 La. 791
• Parties: FRISCHHERTZ ELECTRIC COMPANY, Inc. v. STRICKLAND TRANSPORTATION COMPANY, Inc., and Transport Insurance Company, Inc.
• Court: Louisiana Supreme Court

Page 646

264 So.2d 646

262 La. 791

FRISCHHERTZ ELECTRIC COMPANY, Inc. v. STRICKLAND TRANSPORTATION COMPANY, Inc., and Transport Insurance Company, Inc.

No. 51687.

Supreme Court of Louisiana.

June 29, 1972.

Herman & Herman, Mark B. Herman, New Orleans, for plaintiff-applicant.

White, Fray & White, Robert H. Fray, Gretna, for defendants-respondents.

SANDERS, Justice:

We granted certiorari to review a judgment of the Court of Appeal denying Frischhertz Electric Company, Inc., recovery against a common carrier for damage to a quantity of batteries shipped from New York to Louisiana. ¹ We reverse and remand the case to the Court of Appeal for the assessment of damages.

On September 11, 1968, Frischhertz placed an order with a New Orleans supplier for eight NC--30 cadmium batteries and accompanying charging units. The battery manufacturer was Lightalarms Electronics Corporation of Brooklyn, New York. By a bill of lading dated September 16, 1968, Lightalarms directed Strickland Transportation Company, Inc., the defendant, to deliver the electrical transformers and '4 cartons wet batteries, white label' to Frischhertz at its job site in Arabi, Louisiana. The carrier made no notation of damage on the bill of lading.

On October 2, 1968, Strickland delivered the shipment. When Frischhertz received the batteries, they were in three cartons, instead of four. Both the truck driver and the Frischhertz foreman observed dampness and leakage on two of the cartons. The truck driver noted on the delivery receipt that two cartons were leaking.

The following day, a Lightalarms representative inspected the shipment. He found that two of the cartons were damaged. Moreover, the batteries were not in the containers customarily used by Lightalarms. Instead, they were in non-regulation cartons that failed to meet the wet-battery packaging regulations of the Interstate Commerce Commission.

On October 9, Frischhertz asked Strickland to inspect the damage and make restitution. Following an investigation, the Strickland inspector reported that the batteries had been 'recoopered-new cartons' and that they were damaged.

When Strickland and its insurer failed to pay the loss, Frischhertz brought this action for the replacement cost of the batteries in the sum of $818.79, plus interest, penalties, and costs.

The Court of Appeal noted that, although Strickland was listed as the carrier, the name 'H. & R. Trucking Co.' was stamped on the bill of lading below the description of the articles. The court then held:

'Defendant denied receiving the merchandise in Brooklyn in it answer, and the bill of lading does not prove this point. We are convinced that the plaintiff should have explained how H. & R Trucking Company fits into the picture and this it failed to do. The three points of transfer en route raises the possibility that another carrier was involved, particularly since another firm is noted on the bill of lading. The record does reflect Strickland transferred the merchandise at New Orleans from one truck to another but the third transfer is not explained.

'We are of the opinion that the plaintiff was required to clarify or explain these questions to meet its burden of proof and this it failed to do.' ²

We disagree. Assuming that the unexplained name on the bill of lading is evidence that another carrier transported the batteries initially, this circumstance does not defeat recovery.

The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 20(11) provides in part:

(A)ny common carrier, railroad, or transportation company delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, For the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company To which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission . . . (Italics ours). ³

Under the statute, the delivering carrier is liable to the consignee for shipment damage, irrespective of how many carriers transported the shipment at earlier stages. The statute wisely dispenses with any requirement that the consignee allocate the fault among connecting carriers. It allows him to look to the delivering carrier for his full loss. Bancroft v. Yazoo & M.V.R. Co., 194 La. 115, 193 So. 481 (1939); 14 Am.Jur.2d, Carriers § 706, pp. 201--202

Since Strickland admittedly delivered the shipment, plaintiff is entitled to restitution from it, if the burden of proof has been otherwise satisfied.

The law is well established that, in other to recover for carrier damage, the consignee must prove the following: (1) Receipt of goods by the initial carrier in good condition; (2) Arrival in damaged condition; and (3) The amount of the loss. Missouri P.R. Co. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964); Yuspeh v. Acme Fast Freight, 222 La. 747, 63 So.2d 743 (1953); Bancroft v. Yazoo & M.V.R. Co., supra.

Although defendants in their brief deny that plaintiff has borne the burden of proof as to any of the elements of liability, we conclude that the only substantial question is whether plaintiff has established the receipt of the equipment by the carrier in good condition. As to this element, plaintiff offered the bill of lading. ⁴

The bill of lading is a standard form. It bears the name of the shipper, Lightalarms, and lists Strickland as the carrier. It contains no notation of damages or exceptions made by the receiving carrier.

We hold that the clean bill of lading is sufficient to establish Prima facie that the carrier received the four cartons in good condition. By Good condition, we mean that the cartons were free of defects or damage that would be disclosed by ordinary inspection.

The applicable rule is correctly set forth in 14 Am.Jur.2d, Carriers § 619, p. 133 as follows:

'. . . (I)t is generally held that issuance of a bill of lading or shipping receipt without a notation thereon of Visible damages or defects in the shipment creates a presumption that, insofar as is disclosed by ordinary inspection, the shipment was free from visible defects or damages and, to such extent, in good condition when received by the carrier. Moreover, the issuance by a carrier of a bill of lading or shipping receipt which, containing no notation of visible damages or defects, includes an affirmative acknowledgement that on receipt the goods to be shipped were in 'good order' or 'apparent good order,' has been generally held to constitute prima facie evidence that the goods were received in good condition, at least with respect to external matters.'

See also Annot., Evidence--Carrier of Freight--Damage, 33 A.L.R.2d 867, 870 (1954).

In the present case, the batteries arrived in three non-regulation cartons. Two had visible damage. Obviously, if these conditions had existed at the point of shipment, they probably would have been noted and exceptions made. Hence, the clean bill of lading is sufficient to prove Prima facie that no such conditions existed when the carrier received the shipment and to place upon the carrier the burden of going forward with the evidence, if it is to exonerate itself. See Goldberg v. New York, N.H. & H.R. Co., 130 Me. 96, 153 A. 812 (1931); Minneapolis Fire & Marine Ins. Co. v. Baltimore & Ohio R. Co., 237 Minn. 111, 53 N.W.2d 828, 33 A.L.R.2d 860 (1952).

In Minneapolis Fire & Marine Ins. Co. v. Baltimore & Ohio R. Co., the Minnesota Supreme Court stated:

'Damages to or defects in a shipment obvious at the point of destination would be equally apparent at the point of shipment if then existent. The issuance of a receipt for such a shipment at the latter point without any notation of visible defects thereon would indicate the absence of such defects at that time. It would follow that if the shipment were visibly damaged upon arrival at the point of destination such damage must have been sustained in transit. Schwalb v. Erie R. Co., 161 Misc. 743, 293 N.Y.S. 842. This conclusion is strengthened by the fact that a carrier has the right to refuse to accept merchandise not properly packaged or crated, 9 Am.Jur., Carriers, § 299, and, under normal circumstances, would either refuse such a shipment or note on the receipt therefor any damages or defects plainly visible therein.'

The carrier offered no evidence here tending to show that the batteries were damaged at the time of shipment. It did not negate plaintiff's Prima facie case. Hence, the plaintiff is entitled to recover the damages sustained.

Since the Court of Appeal has not passed upon the amount of damages, we remand the case to the Court of Appeal for their determination in accordance with our usual practice. See Felt v. Price, 240 La 966, 126 So.2d 330 (1961) and the authorities therein cited.

For the reasons assigned, the judgment of the Court of Appeal is reversed and judgment is rendered in favor of plaintiff, Frischhertz Electric Company, Inc., and against the defendants, Strickland Transportation Company, Inc., and Transport Insurance Company, Inc., in solido, in such sum as may hereafter be fixed. The case is remanded to the Court of Appeal for the assessment of damages. All costs of this appeal are taxed against the defendants.

HAMLIN, Justice (dissenting).

I am compelled to respectfully dissent from the majority opinion. Under the facts and circumstances of the instant case, I do not believe that the delivering carrier, ...