John Bonura & Co., Inc. v. Texas & N. O. R. R. Co.

Decision Date10 March 1930
Docket Number11,879
Citation126 So. 593,14 La. App. 351
PartiesJOHN BONURA & CO., INC., v. TEXAS & N. O. R. R. CO
CourtCourt of Appeal of Louisiana — District of US

Rehearing Refused May 5, 1930

Writ of Certiorari and Review Denied by Supreme Court July 3, 1930.

Writ of Certiorari and Review Denied by U. S. Supreme Court October 20, 1930.

Appeal from the Civil District Court for the Parish of Orleans Division "C." Hon. E. K. Skinner, Judge.

Action by John Bonura & Company, Inc., against Texas & New Orleans Railroad Company.

Plaintiff secured judgment against defendant and caused writ of fi. fa to issue. In a summary proceeding by motion Corinne Wren Davis claims a superior privilege out of the proceeds for the payment of her salary. There was judgment for Corinne Wren Davis and plaintiff appealed.

Judgment affirmed.

Chas F. Fletchinger, of New Orleans, attorney for plaintiff, appellee.

Denegre, Leovy & Chaffe, and N. P. Phillips, of New Orleans, attorneys for defendant, appellant.

HIGGINS J. JANVIER, J., dissenting.

OPINION

HIGGINS, J.

Plaintiff sues defendant for the sum of $ 406.75 damages alleged to have been sustained on a shipment of a car containing 320 crates of "Iceberg Lettuce," consigned to plaintiff at New Orleans by Louis Garat from Colma, Cal., on July 27, 1927; the car arriving at its destination over the lines of defendant as delivering carrier on August 5, 1927.

The petition charges that the loss and damages sustained to the lettuce resulted from the improper handling of the goods in transit; the failure of the carrier to transport the perishable goods in a car properly cooled and conditioned with equipment especially adapted to that purpose; to steadily maintain the requisite refrigeration from point of origin to time of delivery to petitioner.

The defendant admits the issuance of the bill of lading, but denies all other allegations in the petition, and especially pleads that "if the condition of the said shipment when delivered at destination was not good (which is denied for want of information) that this was due to a defect or vice in the property or to causes for which the carrier had no control and for which they were not responsible." In this connection respondent specially pleaded section 1 of the bill of lading under which the shipment moved.

There was judgment in favor of plaintiff for the full amount of the claim, and defendant has appealed.

The pertinent parts of the bill of lading read as follows:

"Dry car--Vents closed plugs in to first icing station. Ice to full capacity at first icing station, adding two per cent salt of tank capacity. Keep fully iced to destination, adding two per cent salt of amount ice furnished with each re-icing. 7500 pounds top ice."

"Section 1. (b) No carrier or party in possession of all or any of the property herein described, shall be liable for any loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage * * * except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit under the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from riots or strikes."

The record shows that Louis Garat, the shipper, had fourteen years' experience as a shipper and distributor of fruits and vegetables in California. That the plaintiff has been in the business of buying and selling fruits and vegetables in the city of New Orleans for a number or years. Plaintiff ordered a carload containing 320 crates of "Iceberg Lettuce" from Louis Garat. At the request of the shipper the lettuce was inspected by a representative of the United States Department of Agriculture (Bureau of Agricultural Economics), whose certificate of inspection was introduced in evidence by plaintiff, and as far as concerns the quality and condition of the lettuce reads as follows:

"Lettuce fresh, crisp and well trimmed. Wrapper leaves good green color. Stock free from defects, consists of about 60% firm and 25% fairly firm; 15 to 20 per cent soft or tip burn."

It is explained by witnesses for plaintiff who are experienced in the handling of vegetables and fruits that 60 per cent firm means that the lettuce is of such solidity that it is desirable; 23 per cent fairly firm means it is not quite as good as firm but still comes within the grade considered as desirable lettuce; and 15 to 20 per cent tip burns means that the lettuce shows a slight burn or brownish burn on the outer tips or edges of the outer leaves which can be caused by several elements or growing conditions, but does not affect the soundness of the lettuce. In short, the testimony of the plaintiff established unquestionably that the lettuce was in good and sound condition at the time that it was loaded into the car, and if placed in a refrigerator car properly equipped and iced should have been in good and sound condition upon its arrival in New Orleans. The shipment left Colma, Cal., about 7 p. m. on July 27th, and arrived in New Orleans on Friday, August 5th, about 6 a. m.--nine days later.

The plaintiff admits notice of the arrival on August 5th. Mr. Bonura testifies that he inspected the goods on the same day it arrived and found the lettuce in bad condition, generally affected with a slimy decay or rot. That he declined to accept the shipment and immediately took the matter up with the shipper's broker in New Orleans as to the responsibility for the damaged goods. After communicating with the shipper concerning the condition of the lettuce, the shipper insisted that the lettuce had been inspected at point of origin and was in good and sound condition as appears from the government certificate of inspection, hence he was not responsible for any loss, and that plaintiff must look to the defendant carrier.

Plaintiff then accepted the goods from the defendant on August 9, 1927. On the day of acceptance plaintiff requested a federal inspector to inspect and report as to the condition of the lettuce. The report is as follows:

"In outer row of crates next side walls of car, decay ranges from 4 to 50%, average for these crates approximately 20%. In 3 center rows of load in most crates from 4 to 25%, few none, average for the three center rows of crates approximately 10%. Decay is Slimy Soft Rot affecting generally from 3 to 5 leaves."

Plaintiff then caused it to be sold at public auction by the Fruit & Produce Exchange, Inc., whose business it is in this market to sell such products. It appears that the Exchange sells only on Monday, Wednesday and Friday. Due to the negotiations with the shipper concerning responsibility for the damages to the lettuce, the car was accepted on August 9th, and offered for sale on Wednesday, August 10th. All of the lettuce was not sold on the 10th, and the balance was sold on the 12th.

The goods were sold for $ 889.25. The market price of the lettuce at the time and place of delivery would have been $ 1,296 had the lettuce arrived in good condition. Plaintiff therefore claims the difference between the market price of good lettuce at the time of delivery and the amount realized from the sale of the damaged lettuce as the loss which it sustained, or $ 406.75.

The defendant's evidence shows that the refrigerator car in which the lettuce was shipped was properly equipped and cleaned and the vents closed and plugs in; that the car was properly inspected and ice and salt added to the bunkers at ten stations en route, not including the initial station. The car was inspected by defendant three times in New Orleans and ice and salt added to the bunkers once before plaintiff accepted the shipment. Most of the evidence of the defendant is taken by deposition, the witnesses testifying that they were referring to the company's records, although the original records were only produced in two instances. In short, the evidence offered by defendant, if accepted as true, would show that the refrigerator car in which the lettuce was shipped was in good condition and properly equipped and cleaned; that it was thoroughly iced to its capacity at the point of origin and at ten intervening stations en route was re-iced and salt added in accordance with the instructions of the shipper; that the car arrived in New Orleans with the seals intact within nine days or under schedule time for such shipment; and that upon arrival of the car in New Orleans the bunkers were re-iced to their capacity and salt added and that proper refrigeration was maintained from the time the car left Colma, Cal., until it was accepted by plaintiff in New Orleans.

We therefore have a situation before us where the plaintiff's evidence, if accepted as true, proves a case of liability against the defendant carrier. On the other hand, if the evidence of the defendant is accepted as true, it has proved itself to be free from fault and negligence but has failed to prove the reason why the lettuce deteriorated or decayed.

We are of the opinion that the certificate of inspection of the representative of the United States Department of Agriculture and the other evidence offered by plaintiff in support thereof proves that the lettuce was "fresh, crisp and well trimmed" when loaded in the car on July 27, 1927. The federal inspector's report of August 9, 1927, offered in evidence by the plaintiff and supported by the plaintiff's other proof, establishes the fact that when the car...

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