Frosty Land Foods Intern., Inc. v. Refrigerated Transport Co., Inc., 79-2917

• Decision Date: 20 March 1980
• Docket Number: No. 79-2917,79-2917
• Citation: 613 F.2d 1344
• Parties: FROSTY LAND FOODS INTERNATIONAL, INC., d/b/a Lorenz International, an Alabama Corporation, Plaintiff-Appellee, v. REFRIGERATED TRANSPORT COMPANY, INC., a Georgia Corporation, Defendant- Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1344

613 F.2d 1344

FROSTY LAND FOODS INTERNATIONAL, INC., d/b/a Lorenz International, an Alabama Corporation, Plaintiff-Appellee, v. REFRIGERATED TRANSPORT COMPANY, INC., a Georgia Corporation Defendant- Appellant.

No. 79-2917

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 20, 1980.

Serby & Mitchell, Richard M. Tettelbaum, Martin W. Alpert, Atlanta, Ga., for defendant-appellant.

Hobbs, Copeland, Franco & Screws, Richard H. Gill, Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before AINSWORTH, FAY and RANDALL, Circuit Judges.

AINSWORTH, Circuit Judge:

This is an appeal by a motor common carrier from an adverse judgment growing out of cargo damage to a shipment in interstate commerce. Plaintiff Frosty Land Foods International, Inc. ("Frosty Land") brought this suit against Refrigerated Transport Company, Inc. ("RTC") seeking damages it allegedly sustained as a result of RTC's negligence in transporting a truckload of beef. RTC answered and filed a counterclaim against Frosty Land claiming past due transportation charges. On RTC's motion, the district court granted summary judgment on the counterclaim for $9,653.91. The case then proceeded to trial before a jury on plaintiff's claim for damages resulting in a verdict in favor of Frosty Land in the amount of $14,275.74. ¹ Although RTC complains of several errors in the trial of this case, only two basic issues require discussion: (1) whether substantial evidence exists in the record to support the jury's award of damages against RTC, and (2) whether the trial court properly instructed the jury on the issue of Frosty Land's duty to mitigate its damages. We find no reversible error in the proceedings and accordingly affirm.

Frosty Land shipped a load of utility beef hindquarters from its plant in Montgomery, Alabama to Scott Meat Company in Los Angeles via an RTC truck. The load included meat slaughtered on December 6, 1977 by Frosty Land and meat slaughtered on December 1 by Shapiro Packing Company in Augusta, Georgia. After loading was completed Frosty Land placed seals on the RTC trailer. RTC did not participate in the loading of its trailer nor did it inspect its contents.

On December 7, at approximately 12:55 a. m., two of RTC's drivers departed from the Frosty Land facility in Montgomery. The bill of lading called for delivery at Scott Meat Company at 6 a. m., Thursday, December 8, but this date was later changed to Friday, December 9, at 6 a. m. The RTC drivers arrived in Los Angeles at approximately 3:30 p. m., Friday, December 9. Upon arrival they called Scott who notified them that it could not process the meat at that time. The drivers checked into a motel for the weekend.

On Monday, December 12, at approximately 9 a. m., the load was taken to Scott. It was found to be in off condition strong smelling, dark and slimy. After inspecting 65 of the 308 carcasses, Scott refused the meat. Plaintiff's witness testified that there was a large amount of blood on the floor of the trailer and that the meat at the back of the load was slick and slimy, an indication that the spoilage was due to exposure to excessive temperatures. Defendant's witness testified that he failed to observe the presence of blood on the floor and that the meat at the back of the load, in his opinion, was damaged from age. On Tuesday, December 13, Frosty Land sold the meat after extensive trimming at a loss of approximately $13,529.05.

In its assertion that the jury award is not supported by substantial evidence, appellant RTC argues that Frosty Land failed to bear its burden of proving a prima facie case of RTC's liability as required by the Interstate Commerce Act, 49 U.S.C. § 20(11). ² Under section 20(11), a common carrier is liable for actual loss or injury to property it transports. This statute represents a codification of the common law rule that a common carrier is liable for damage to goods it transports unless it can show by a preponderance of the evidence that the damage was caused solely by (a) the act of God, (b) the public enemy, (c) the act of the shipper, (d) public authority, or (e) the inherent vice or nature of the goods. Before the burden shifts to the carrier, however, the shipper must make out a prima facie case of the carrier's negligence. It does this by showing (1) delivery of goods to the carrier in good condition, (2) delivery by the carrier to the consignee in damaged condition, and (3) damages. Once these three elements are established, a presumption of negligence operates against the carrier, who must then come forward with sufficient facts to establish that the damages were due solely to one of the excepted causes listed above. See Missouri Pacific Railroad v. Elmore & Stahl, 377 U.S. 134, 137-38, 84 S.Ct. 1142, 1144-45, 12 L.Ed.2d 194 (1964).

Appellant's principal contention is that there was no competent evidence presented at trial to establish that the meat, which was delivered under seal to RTC for shipment, had been tendered to the carrier in good condition. When goods traveling under seal are delivered to the consignee in damaged condition, the shipper must submit adequate proof that the meat was in good condition when delivered to the carrier. Ed Miniat, Inc. v. Baltimore & Ohio Railroad, 190 U.S.App.D.C. 380, 383, 587 F.2d 1277, 1280 (D.C. Cir. 1978). The issue before us thus resolves into determining whether Frosty Land's evidence satisfied its initial burden of establishing the first element of its prima facie case against RTC. We conclude that it did.

RTC contends that the meat received from Shapiro Packing Company was old and that this meat had deteriorated by the time the load arrived at Scott. According to RTC, the deterioration was due solely to the beef's age and not to exposure to excessive temperatures. In support of RTC's argument, one of its drivers testified that the temperature of the small portion of the meat that could be reached through the porthole in the trailer was checked every four hours in transit and no substantial variations in temperature were detected and no refrigeration problems were encountered.

Frosty Land's evidence established that its quality control required that all meat at its facility, whether slaughtered there or received from another meat packing house, be inspected for wholesomeness and freshness by its personnel. Testimony indicated that the beef was also inspected by one or more of seven permanent United States Department of Agriculture inspectors at the plant as well as by military inspectors present at the facility. There was further testimony that the plant had been inspected by representatives from the Department of Agriculture and, therefore, complied with its requirements for cleanliness and temperature maintenance.

Furthermore, Frosty Land showed that the Shapiro beef shipped to its facility in Montgomery was inspected at several different times after receipt and that no problems were noted. The forequarters of these same carcasses shipped to Scott were sold to other customers without complaints of deterioration resulting from age or other cause. Furthermore, there was testimony that if the meat had been kept properly refrigerated in transit, the spoiled condition of the meat would not have resulted from age alone. Although the older meat would have suffered ill effects sooner than the newer meat, both the old and the new meat would have been in good condition at the time of the scheduled delivery date if the meat had been properly handled during shipment.

There was testimony that the...