Lincoln Farm Products Corp. v. Central R. Co. of N. J.

• Decision Date: 18 November 1963
• Docket Number: No. A--119,A--119
• Citation: 81 N.J.Super. 161,195 A.2d 200
• Parties: LINCOLN FARM PRODUCTS CORP., a corporation, Plaintiff-Respondent, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY, a corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 161

81 N.J.Super. 161

195 A.2d 200

LINCOLN FARM PRODUCTS CORP., a corporation, Plaintiff-Respondent, v. The CENTRAL RAILROAD COMPANY OF NEW JERSEY, a corporation Defendant-Appellant.

No. A--119.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1963.

Decided Nov. 18, 1963.

Vincent E. McGowan, Westfield, for defendant.

Marvin A. Sachs, Newark, for plaintiff (Harold D. Feuerstein, Newark, attorney).

Before Judges GAULKIN, LEWIS and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.S.C. (temporarily assigned).

Defendant appeals from a judgment in favor of plaintiff entered by the trial court sitting without a jury.

Plaintiff had purchased 60,000 lbs. of tallow from the M. A. Delph Co., Indianapolis, Indiana, to be delivered to its plant in Newark, New Jersey. Such tallow or melted fat is used in the manufacturing of soap. The tallow was shipped from Massillon, Ohio, to Newark by Standard Provision Company, in a tank car owned by the Frey Company of Chicago and furnished by the shipper. The car was loaded and sealed by Standard at its siding in Massillon. A bill of lading for the shipment was issued by the Pennsylvania Railroad Company for shipment over its line and that of the Central Railroad Company of New Jersey. The car remained sealed during transit. The bill of lading described the shipment as:

'TANK CAR INEDIBLE TALLOW APPROX. 60,000 lbs'

The bill of lading recited:

'Received * * * the property described below in apparent good order except as noted (contents and condition of contents of packages unknown) * * *'

The tank car consisted of a horizontal cylindrical steel tank having a dome at the top in which there was an opening through which the car could be loaded. There was an outlet at the bottom of the car which was provided with a valve controlled by a handle which could be reached only through the dome. Below the outlet valve was a short outlet pipe or chamber with a threaded end to which a hose could be attached to receive the contends of the car upon unloading. The outlet pipe was provided with a threated screw cap. In the center of this, in turn, there was a small inspection plug.

At the trial plaintiff's general manager, David E. Rothschild, testified that the customary way of loading tank cars with tallow was as follows: With the outlet valve in the closed position and the screw cap off, the tallow, which had been melted, was loaded into the car through the dome opening. The screw cap was left off the bottom of the outlet during the loading process to assure that the valve was operating properly, for if it was not, the tallow could be observed leaking through the outlet pipe. After the loading was completed, if there was no leakage through the valve, the cap was screwed onto the threaded end of the outlet pipe and both the dome and cap were sealed by the shipper. This testimony was received over the objection of defendant's counsel, who contended that first hand testimony was required as to the actual method of loading employed by the shipper or its representative.

After loading, the tallow would again congeal into its solid state (similar to butter stored in the butter compartment of a refrigerator). This required a period of from two to two and one-half days during the wintertime. Upon arrival at destination, the tallow was melted with steam so that it could be drawn out through the outlet pipe at the bottom of the car.

Defendant delivered the car in question at plaintiff's siding on March 19, 1959. Two or three days later Franklin Thompson, an employee of plaintiff whose job it was to do the unloading, made an examination of the car. He testified that his inspection of the exterior revealed no evidence of damage or leakage. He found that the tallow in the car was solid. He also took off the inspection plug and looked up into the chamber of the outlet. This was about 18 inches high and he used a short length of pipe to see if there was any tallow there. He found that it was clear up to the valve disc. It was he who removed the seals from the dome and the bottom cap.

The car was actually unloaded about ten days after it was delivered to plaintiff. Preliminarily, it was necessary to connect a steam hose to the steam coils in the car in order to melt the tallow. After the heating began the witness looked into the dome opening but could not see the bottom of the car. By the second day the tallow was in liquid form. He testified that, preparatory to unloading it, he again removed the inspection plug and found that the outlet was clear with no evidence of leakage. He then unscrewed the cap, intending to hook up the discharge hose to the outlet pipe, but, before he could do so, the molten tallow bean to run out. Attempts to close the valve failed to stem the flow and the cargo was discharged onto the ground. Later, upon entering into the interior of the car through the dome, it was found that the outlet valve was out of its seat and inoperable.

At the close of plaintiff's case, defendant moved to dismiss. Decision was reserved and the motion was renewed after defendant rested, in conjunction with a motion for judgment in favor of defendant. Subsequently, the court denied both of defendant's motions and entered judgment in favor of plaintiff.

In his oral decision, that trial judge found, from the fact that no tallow was observed when the test plug was first removed after the car was delivered to plaintiff, that the valve had been properly seated when the car was loaded. He also found that the bill of lading was a clear bill, with no exceptions being noted. He concluded that the tank car and its contents were in good order when received by the initial carrier, that the defect in the value which caused the loss of the cargo came about during shipment, and that defendant, as the delivering carrier, was liable for the damage which ensued.

Defendant urges that judgment should have been entered in its favor for the reason that (1) proof was lacking that the car and its contents were in good condition at the time of delivery to the initial carrier, and (2) the bill of lading did not constitute Prima facie evidence that the car and its contents were in good condition at the time of such delivery.

From our examination of the evidence, we conclude that defendant's motion for judgment should have been granted.

A common carrier receving property for transportation, as in the present case, is required to issue a bill of lading, and a delivering carrier is liable to the lawful holder thereof for any loss or damage in transit caused by it or by another common carrier to which the property may have been delivered or over whose line or lines such property may have passed. 49 U.S.C.A. § 20(11); New Jersey Bell Tel. Co. v. Pennsylvania-Reading Seashore Lines, 11 N.J.Super. 129, 78 A.2d 150 (Law Div.1950). In order to recover against the delivering carrier, however, the burden is upon the plaintiff to show that (1) the goods in question were delivered to the initial carrier in good condition, and (2) the shipment arrived at destination in a damaged condition. Valco Manufacturing Co. v. C. Rickard & Sons, Inc., 22 N.J.Super. 578, 584, 92 A.2d 501 (App.Div.1952). The law does not permit speculation or conjecture as to these elements, but requires that they be established as a fundamental requisite. Ibid. See also Kaufherr & Co. v. Pennsylvania R. Co., 12 N.J.Misc. 542, 174 A. 27 (Sup.Ct.1934); Gude v. Pennsylvania R. Co., 77 N.J.L. 391, 71 A. 1128 (Sup.Ct.1909); McMahon v. American Ry. Express Co., 6 N.J.Misc. 468, 141 A. 566 (Sup.Ct.1928), affirmed per curiam, 105 N.J.L. 494, 144 A. 920 (E. & A.1929).

In the absence of direct evidence to establish that the outlet valve was functioning at the time of loading, the trial judge relied upon the testimony as to the customary method of unloading and the circumstance that no tallow had been found in the discharge outlet (between the outlet valve and the cap) when the car was delivered to the plaintiff. The assumption was that, if the valve had been open or leaking and the car had been loaded with the cap on, some of the leakage would have been trapped by the cap and would have been observable through the inspecting plug. But this seems to us to ignore significant points. First, plaintiff's employee Thompson testified that After the tallow had melted he removed the test plug a second time and still found no evidence of leakage. He said he then replaced the test plug and unscrewed the screw cap, whereupon the tallow ran out. According to the theory of plaintiff's case, the removal of the test plug should have revealed that the outlet pipe was full of molten tallow which had flowed past the damaged valve. Plaintiff offers no explanation as to why Thompson saw no leakage when he opened the test plug. Some of the possible explanations would seem to be (1) he did not...