Joseph Chalona Co. v. American Railway Express Co.

Decision Date29 April 1929
Docket Number10,986
Citation11 La.App. 18,123 So. 147
CourtCourt of Appeal of Louisiana — District of US
PartiesJOSEPH CHALONA CO. v. AMERICAN RAILWAY EXPRESS CO

Rehearing Refused May 27, 1929.

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

Action by Joseph Chalona Company against American Railway Express Company.

There was judgment for plaintiff and defendant appealed.

Judgment reversed.

Weiss Yarrut & Stich, of New Orleans, attorneys for plaintiff appellee.

Lemle Moreno and Lemle, and A. M. Hartung and Hunter C. Leake, of New Orleans, attorneys for defendant, appellant.

OPINION

JANVIER, J.

Plaintiff sues defendant for $ 776.83, alleged to be the loss sustained as a result of deterioration in a carload of cantaloupes shipped from Brawley, California, to New Orleans, during the early part of June, 1922.

It is alleged that the amount of the loss is arrived at in the following manner:

Cost of cantaloupes, F. O. B. Brawley

$ 2,139.00

Express charges, including icing, etc.

1,020.09

Total cost to plaintiff

$ 3,159.09

Net salvage from sale of cantaloupes

$ 776.83

It is claimed that the deterioration resulted in general from improper handling and particularly from inadequate icing of the shipment by defendant express company.

Defendant admits that the shipment was made and that, upon delivery in New Orleans, the cantaloupes were found to be in a damaged condition, but contends that it has fully sustained the burden of proving that it was not negligent, and that the loss resulted from the inherent perishable nature of the articles shipped.

There is no dispute as to the law applicable. The shipment was made under a contract which relieved the defendant from liability for loss under certain circumstances.

The pertinent part of the contract reads as follows:

"4. Unless caused in whole or in part by its own negligence or that of its agents, the Company shall not be liable for loss damage, or delay caused by--

* * *

"(b) The nature of the property, or defect, or inherent vice therein. * * *"

Such a limitation of liability or exemption from liability has been held to be constitutional and valid:

J. D. Simms & Sons vs. N. O. & N. E. R. Co., 122 La. 268, 47 So. 602.

McHenry Horse Exchange vs. Illinois Central R. Co., 148 La. 49, 86 So. 649.

Adams Express Co. vs. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148.

Union Pac. R. Co. vs. Burke, 255 U.S. 317, 321, 65 L.Ed. 656, 41 S.Ct. 283.

American Railway Express Co. vs. Lindenburg, 260 U.S. 584, 67 L.Ed. 414, 43 S.Ct. 206.

This limitation, however, does not relieve the defendant of the obligation of proving that the cause of the loss was one of the things within the limitation.

It will be seen, then, that the carrier is called on to furnish affirmative proof showing all essential matters with reference to the handling of the car.

That the car was in good physical condition is conclusively shown and is not disputed.

That the time consumed in transporting the car from point of origin to destination was unusually short, is conceded. In fact the car was moved from California to New Orleans in less than four days, or almost as fast as a passenger train.

The sole remaining question, and the most important one, is whether or not the car was kept properly iced throughout the journey. Defendant offers a mass of evidence from every point, between the two terminii, at which the car was stopped for icing to show that the ice bunkers were replenished ten times en route, after the initial icing, and twice more after arrival in New Orleans and before consignee accepted delivery.

A study of these icing records shows that at no time was the ice supply allowed to shrink to below four-fifths of the total capacity of the car and that in every case of replenishing the bunkers were refilled to their full capacity.

Plaintiff contends that these icing records show such inconsistencies as to warrant our disbelieving them. For instance, we are told that because, during one 24-hour trip, half of which was of course in the day time, only 2400 pounds of ice were required to refill the bunkers, we should brand as false the testimony that during a night trip of 4 1/2 hours 1800 pounds of ice melted and had to be replaced.

We cannot see such abnormalities or inconsistencies in this testimony as would warrant us in disregarding it. Weather conditions, wind conditions, conditions of humidity--all of these things might affect meltage; and to accept plaintiff's theory that ice should always melt at a uniform rate, or that the carrier should be called upon for an explanation, would place an undue and unwarranted burden on the carrier. All that should be required of it is that it should keep accurate records and should be able to show by these records, or by...

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4 cases
  • John Bonura & Co., Inc. v. Texas & N. O. R. R. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 10 Marzo 1930
    ...of occurrences years behind and mostly from records. There is every occasion for error and confusion." In the case of Chalona v. American R. R. & Express Co., supra, court in speaking of the limitation of liability for loss resulting from defects or inherent vices contained in the bill of l......
  • Caldwell v. Texas & P. Ry. Co.
    • United States
    • Louisiana Supreme Court
    • 29 Octubre 1934
    ... ... Elbert L. Caldwell against the Texas & Pacific Railway ... Company and others. From a judgment of dismissal, the ... Illinois C. R. Co., 148 La. 49, 86 So. 649; ... Chalona Co. v. American Railway Express Co., 11 ... La.App. 18, ... ...
  • Misita v. Railway Exp. Agency
    • United States
    • Court of Appeal of Louisiana — District of US
    • 30 Junio 1952
    ... ... , doing business as Tony Misita Produce Company, against Railway Express Agency, Inc., in the sum of $1,734.15 for alleged damages to sweet ... Joseph Chalona Co. v. American ... Ry. Express Co., 11 La.App. 18, 123 So. 147; ... ...
  • Bowie Lumber Co., Ltd. v. Yazoo & Miss. Valley R. R. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • 13 Enero 1930
    ... ... held to be constitutional and valid. Chalona Co. v ... American Ry. Express Co., 11 La. App. 18, 123 ... ...

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