Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc.

• Citation: 313 F.2d 864
• Decision Date: 19 March 1963
• Docket Number: No. 13517.,13517.
• Parties: HARRIS TRUCK LINES, INC., Plaintiff-Appellant, v. CHERRY MEAT PACKERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.2d 864 (1963)

HARRIS TRUCK LINES, INC., Plaintiff-Appellant, v. CHERRY MEAT PACKERS, INC., Defendant-Appellee.

No. 13517.

United States Court of Appeals Seventh Circuit.

February 7, 1963.

Rehearing Denied March 19, 1963.

Joseph E. Bell, Thomas P. Ward, Eugene H. Ruark, Chicago, Ill., for appellant.

John J. Kelly, Jr., George G. Kelly, Chicago, Ill., for appellee.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

This Court's judgment of dismissal in this appeal (Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 7 Cir., 303 F.2d 609) was vacated by the Supreme Court on certiorari (83 S.Ct. 283) and the case remanded with directions that the appeal be heard on its merits.

This appeal involves a suit brought in the District Court by Harris Truck Lines, Inc., plaintiff-appellant, to recover freight charges alleged to be due it from Cherry Meat Packers, Inc., defendant-appellee. Defendant's answer denied the indebtedness and asserted a counterclaim for damages allegedly sustained by reason of the negligence of the plaintiff in failing to provide adequate refrigeration for frozen meat shipped by defendant. Plaintiff's answer to the counterclaim denied its failure to provide adequate refrigeration, averred lack of negligence on its part, and alleged that whatever damage occurred was attributable to the condition of the meat when delivered for shipment, to the inherent nature of the shipment, and to the action of the defendant.

The case was tried without a jury. The District Court dismissed plaintiff's complaint, without making and entering findings of fact or conclusions of law with respect to the claims¹ asserted by plaintiff's action, and entered judgment for defendant on its counterclaim. The plaintiff appealed.

The failure of the District Court to make any findings of fact or to state its conclusions of law with respect to the claims asserted by the plaintiff's complaint requires that we reverse as to the judgment of dismissal and remand the cause with directions to vacate the order of dismissal, and for the purpose of the District Court's making and entering appropriate findings and conclusions and entering judgment accordingly. Rule 52 (a), Federal Rules of Civil Procedure (28 U.S.C.A.); Gomez v. United States, 7 Cir., 246 F.2d 878; Kweskin v. Finkelstein, 7 Cir., 223 F.2d 677. Cf. Krinsley v. United Artists Corp., 7 Cir., 225 F.2d 579; In re Rockford Baseball Club, 7 Cir., 201 F.2d 685; McClure v. O. Henry Tent & Awning Co., 7 Cir., 184 F.2d 636; Indemnity Insurance Co. of North America v. Midwest Transfer Co., 7 Cir., 184 F.2d 633.

With respect to the defendant's counterclaim the District Court found and concluded, in substance, that the plaintiff on January 16, 1957, undertook to transport a cargo of fresh pork sausage from the defendant as consignor in Chicago to a Naval Supply Depot at San Diego, California; that the specifications covering the government's purchase contract provided for final inspection (following conditional acceptance pending final inspection) after delivery to the point of destination; that on the defendant's request for reinspection which occurred after the government's initial rejection of the shipment rejection of the sausage was confirmed on the basis of its odorous condition before and after cooking; and that on return of the 434 cartons of sausage to Chicago two boxes showed evidence of defrosting and refreezing. The court concluded that liability as an insurer attached when the plaintiff received the cargo from the defendant in apparent good order, "contents and condition of the contents of packages unknown";² that there was damage to the shipment while it was in the plaintiff's custody as a common carrier; and that plaintiff is liable to the defendant for the damages claimed in the counterclaim.

The record discloses that the sausage was manufactured by the defendant in its meat plant, under the supervision of government inspectors,³ on January 2nd, 4th and 7th, 1957. The casings used were hog intestines which had been on hand and stored, salted and unfrozen, in the basement of defendant's plant. At the close of each day the sausage manufactured that day was boxed,⁴ banded, stamped by military personnel and stored in defendant's freezer. No further inspection of the sausage was made until the cartons were reopened at their destination in San Diego, except that when the cartons were loaded from the freezer into plaintiff's refrigerated semi-trailer a temperature check was made by the Department of Agriculture Inspector in conjunction with the military representative and the temperature of the sausage was found to range from minus 4 to plus 4 degrees Fahrenheit. On January 16th, the day of the loading, the outdoor temperature at Chicago was between 10 and 20 degrees. The refrigeration equipment of the trailer operated independently of the tractor unit. The truck reached Los Angeles on January 19th at 10:00 P.M. Because shipments were not accepted at the Naval Depot...