Johnson & Dealaman, Inc. v. Wm. F. Hegarty, Inc.

• Decision Date: 25 November 1966
• Docket Number: No. A--521,A--521
• Citation: 224 A.2d 510,93 N.J.Super. 14
• Parties: JOHNSON & DEALAMAN, INC., a New Jersey corporation, Plaintiff-Respondent, v. WM. F. HEGARTY, INC., a New Jersey corporation, Defendant, and Norwalk Truck Lines, Inc., a corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 14

93 N.J.Super. 14

224 A.2d 510

JOHNSON & DEALAMAN, INC., a New Jersey corporation Plaintiff-Respondent, v. WM. F. HEGARTY, INC., a New Jersey corporation, Defendant and Norwalk Truck Lines, Inc., a corporation, Defendant-Appellant.

No. A--521.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 3, 1966.

Decided Nov. 25, 1966.

John J. O'Donnell, Morristown, for appellant (Egan, O'Donnell, Hanley & Clifford, Morristown, attorneys).

Hilton P. Goldman, Elizabeth, for respondent (Krowen, D'Amico & Chernin, East Orange, attorneys).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff Johnson & Dealaman, Inc. brought an action in the county district court to recover the value of a section of a boom delivered in damaged condition by defendant Norwalk Truck Lines, Inc. (Norwalk) to Wm. F. Hegarty, Inc. (Hegarty). Hegarty was sued in contract and Norwalk for negligence. The trial judge entered judgment in favor of Johnson & Dealaman, Inc.; there was a no cause judgment in favor of Hegarty, apparently for the reason that it had paid plaintiff for replacing the damaged boom. Norwalk's appeal is against plaintiff only; it concedes that the judgment in Hegarty's favor was proper.

The appeal comes before us on a statement in lieu of record prepared by the trial judge. R.R. 1:6--3. Plaintiff and Hegarty are New Jersey corporations, and Norwalk, a common carrier, is a Delaware corporation with a registered New Jersey agent. Plaintiff is a distributor for Thew Shovel Co., of Lorain, Ohio, and, as such, had it ship a 20 center section of boom to Hegarty via Norwalk. Norwalk delivered the boom section to Hegarty on September 11, 1963. It was in damaged condition, and this was noted on the delivery slip by the writing: '1 Bent Strut on Boom--Bottom Cord Bent.' That fact was known to Norwalk even before the boom section was delivered to Hegarty; William McLaughlin, manager of its North Bergen Terminal, testified that a Norwalk employee had seen the damage and taken pictures of it at Norwalk's warehouse prior to delivery to the consignee.

Admitted in evidence was a 'Loss or Damage Inspection Report' showing that there had been an inspection on September 11, 1963, and that the consignee had noted the damage on the delivery receipt given to Norwalk's driver. The report described the damage and noted that there was 'Possibility of salvage if returned to shipper. Consignee cannot repair.' The report was signed by W. F. Hegarty, Jr., on behalf of the Hegarty company, and by one R. T. Chamberlain as inspector. The boom section had been shipped under a uniform domestic bill of lading, one of whose terms and conditions was a provision designated as section 2(b):

'As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, * * * within nine months after delivery of the property, * * * and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable and such claims will not be paid.'

Plaintiff's only witness was Frank Alfieri, who testified that he was advised of the damage to the boom section on the date of delivery or soon after. Within a short time he went to the Hegarty place of business and saw the damage. Norwalk's agent was also present. Alfieri had no further communication with Norwalk within nine months of the delivery because, in his opinion, it was Hegarty's duty to file a formal claim. Eventually, alfieri wrote to Norwalk in plaintiff's behalf of December 3, 1964, almost 15 months after delivery.

William F. Hegarty testified that the boom was damaged to such an extent as not to be usable, and that he had instructed his office manager, one Donagan, to prepare a notice of claim and send it to Norwalk. A photocopy of the claim allegedly prepared was marked as an exhibit. It bears the date October 30, 1963 and is addressed to Norwalk's North Bergen Terminal. Hegarty admitted that he had no actual knowledge as to whether the claim form ('Standard Form for Presentation of Loss and Damage Claim') was ever prepared or mailed, and he did not know what documents were to have been submitted with it. He said that in his opinion it was plaintiff's duty, as shipper, to file the formal claim. He had accepted the defective boom only 'as an accommodation' to the truckdriver, and it was for this reason that he felt that the shipper, and not he, had the burden of filing the claim form.

In the course of his testimony McLaughlin, Norwalk's terminal manager, said it was customary for the consignee to file any claims relating to lost or damaged merchandise. With regard to the alleged filing of a claim by the Hegarty company, he stated that he did not personally open every piece of mail coming to his office. He went on to explain the claim procedure followed by his office: (1) upon notification of damage, a 'Loss or Damage Inspection Report' would be completed and held in his office for receipt of the formal written claim, accompanied by the documents outlined at the bottom of the standard claim form; (2) when the formal claim was received, the inspection report and Norwalk's copy of the delivery receipt would be attached to it and sent to Norwalk's claim agent at Lancaster, Pa., for processing through the home terminal which, in turn, would acknowledge receipt of the claim to the party presenting it. There was no such acknowledgment until after Norwalk had received plaintiff's letter of December 3, 1964 inquiring why its claim had not been paid.

The trial judge found as a fact that there was no delivery to Hegarty of the damaged boom section, because it had been left at the Hegarty premises merely as an accommodation to Norwalk. He also found as a fact that Hegarty had made a formal written claim, which was received by Norwalk within the nine-month period called for by section 2(b) of the bill of lading. He thereupon entered judgment against Norwalk. Norwalk's motion for a new trial was argued and denied.

I

We first dispose of plaintiff's contention that the trial court's finding of no delivery to Hegarty excused strict compliance with section 2(b) of the bill of lading. In ourview, that finding is without basis in law and does not accord with the common understanding of the meaning of 'delivery.'

The trial judge apparently confused 'delivery' with 'acceptance.' That Hegarty permitted Norwalk's driver to leave the damaged boom section at its place of business 'as an accommodation' to Norwalk does not alter the fact that physical delivery occurred. Delivery to the buyer through the carrier did not, of course, constitute an acceptance. The Zone Co. v. Service Transportation Co., Inc., 137 N.J.L. 112, 116, 57 A.2d 562 (Sup.Ct.1948). Hegarty was entirely free to reject the damaged boom section, but the section was nonetheless delivered. Zone Co. was decided under our former Uniform Sale of Goods Act, R.S. 46:30--1 et seq. The Uniform Commercial Code, effective in this State since January 1, 1963, does not alter the law controlling this case. See N.J.S. 12A:2--503, 504; also N.J.S. 12A:2--603, 604 dealing with a buyer's duties and options with regard to rightfully rejected goods.

Since the trial judge's finding of no delivery was erroneous, plaintiff's contention that it was thereby excused from the formal notice of claim requirement of the shipping contract is without merit.

II

The statement of facts prepared by the trial judge does not support his finding that the notice of claim was sent by Hegarty and received by Norwalk. By force of statute or agreement, a required notice may effectively be given if properly mailed, regardless of its receipt. Absent such a statute or contract provision respecting the method of giving notice, the general rule is that there is a presumption that mail correctly addressed, stamped and mailed, was received by the party to whom it was addressed. That presumption is rebuttable and may be overcome by evidence that the notice was never in fact received. Szczesny v. Vasquez, 71 N.J.Super. 347, 354, 177 A.2d 47 (App.Div.1962).

The stated facts of this case raise not even a rebuttable presumption of mailing by the Hegarty company. William F. Hegarty, Jr. conceded that he did not know whether the required notice of claim had been prepared or mailed. Donagan, the person who was to perform that function, was never called as a witness, as he should have been in the absence of an admission by Norwalk or any proof that would as much as suggest that it had received Hegarty's claim. Plaintiff's failure to call Donagan is the fatal flaw in its proofs. Thus, we have nothing to show that the notice of claim allegedly sent by Hegarty under date of October 30, 1963 was mailed, properly addressed and with postage prepaid.

We find other elements in the proofs indicating that the claim notice allegedly prepared and sent by Hegarty was never sent or received. At the bottom of the September 11, 1963 inspection report introduced in evidence appear printed directions as to the procedure to be followed in presenting a claim for loss and damage; the claim must be made in writing to the carrier at the point of delivery or at the point of origin within nine months after delivery of the property, with the following documents attached: the original of the inspection report, the original paid freight bill, the original bill of lading, the original invoice or an exact certified copy, the bill showing the nature and amount of the claim and, finally, any...