Loop Cold Storage Co. v. South Texas Packers, Inc.

• Court: Texas Civil Court of Appeals
• Writing for the Court: NYE; SHARPE
• Citation: Loop Cold Storage Co. v. South Texas Packers, Inc., 483 S.W.2d 914 (Tex. Ct. App. 1972)
• Decision Date: 31 July 1972
• Docket Number: No. 717,717
• Parties: LOOP COLD STORAGE CO. and Frozen Food Express, Inc., Appellants, v. SOUTH TEXAS PACKERS, INC., Appellee.

Page 914

483 S.W.2d 914

LOOP COLD STORAGE CO. and Frozen Food Express, Inc., Appellants, v. SOUTH TEXAS PACKERS, INC., Appellee.

No. 717.

Court of Civil Appeals of Texas Corpus Christi.

July 31, 1972.

Rehearing Denied Sept. 7, 1972.

Bradford F. Miller, San Antonio, for Loop Cold Storage Co.

Phinney, Hallman, Pulley & Livingstone, Jack L. Coke, Dallas, for Frozen Food Express, Inc.

Perkins, Davis, Oden & Warburton, L. H. Waburton, Jr., Clyde L. Wright, Alice, for appellee.

OPINION

NYE, Chief Justice.

This is a venue case. The judgment of the trial court overruled the various pleas of privilege filed by the several defendants. South Texas Packers, Inc. (plaintiff) brought suit against Alford Refrigerated Warehouses, Inc. (hereafter called Alford) and Frozen Food Express, Inc. (hereafter called Express) in Nueces County for damages to a shipment of meat. Several months later plaintiff filed its first amended original petition in which plaintiff brought in Loop Cold Storage Company (hereafter called Loop) as an additional defendant along with Alford and Express. Each defendant, as well as plaintiff, has its principal place of business in a county outside of Nueces County. All three defendants timely filed their separate pleas of privilege. Plaintiff then filed its controverting affidavits to such pleas.

Alford and Loop are refrigerated warehouse operators which receive, refrigerate, freeze and store various food commodities. Express is an interstate motor common carrier. Express picked up a shipment of meat belonging to the plaintiff which was stored at Alford's and Loop's warehouses and delivered the same to Safeway Stores, Inc., in Little Rock, Arkansas. The meat was damaged when it arrived in Arkansas.

The plaintiff was in the meat packing business in which it processed fresh meat daily. It delivered the meat to warehouses located in Corpus Christi (Alford) and San Antonio (Loop). The particular meat in question that was delivered to Alford and Loop by the plaintiff, was fresh lean meat to be blast frozen and stored, awaiting orders by the plaintiff for shipment thereafter to respective buyers. Both Alford and Loop issued warehouse receipts accepting the meat for storage and freezing from the plaintiff.

On or about April 21, 1969, Safeway Stores, Inc., in Little Rock, Arkansas, ordered 600 pounds of frozen boneless beef-from the plaintiff at 55 1/2cents per pound. The terms of the sale were that the meat was to be delivered to Safeway at Little Rock, prepaid express; that the meat was to arrive at zero degrees fahrenheit or less; and that title to the meat was to pass from the shipper (plaintiff) to buyer (Safeway) at the destination upon inspection and acceptance by Safeway. Prior to the 21st day of April plaintiff called Express instructing them to pack up 472 boxes of meat (weighing 600 pounds each) from Alford in Corpus Christi, and 128 boxes of meat (same weight) from Loop in San Antonio, and deliver the same to Safeway in Little Rock, Arkansas.

On the morning of April 21 Express loaded and departed Corpus Christi at 7:30 a.m. with 472 boxes of meat. It arrived in San Antonio at 10:30 a.m. and picked up 128 additional boxes from Loop. It departed San Antonio at 1:00 p.m. on April 21. It arrived in Little Rock, Arkansas at approximately 10:30 a.m. on April 22. The meat was placed in Safeway Store cold storage, inspected by random samples by Safeway, and rejected. Safeway immediately notified plaintiff that it had rejected the total shipment. The plaintiff then called and made arrangements for a Government inspection of the meat. Between 2:30 and 3:00 p.m. on the same day, it was determined by the Government inspector that 102 of the 600 boxes of meat, were unfit. This was approximately 32 hours after Express had left Corpus Christi. The plaintiff contacted another buyer in Little Rock who purchased the remaining meat at a resulting loss of approximately $5,000.00.

In a venue case it is the duty of the Court of Civil Appeals to presume that all facts and fact inferences having support in the evidence were found in favor of the judgment by the trial court. Since there were no specific findings of fact or conclusions of law filed, it is our duty to consider only the evidence which tends to support the judgment indulging every reasonable conclusion favorable to it, thereby disregarding all evidence to the contrary. We cannot set aside the judgment of the trial court if there is any evidence of a probative nature to support it. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951) and the many cases cited in Texas Digest, Vol. 4A, Appeal & Error, k 1010.

The testimony showed that the procedure for testing the meat at its destination involved taking 100 boxes at random out of the 600 shipped. From the 100 boxes, 25 were opened and tested with a meat trier for resistance. The balance were tested through the carton. The evidence was that if the meat was solidly frozen, the meat trier would not penetrate the meat. If the meat was somewhat frozen or partially frozen, it would penetrate with resistance. If the meat was in a further state of thaw, it would naturally penetrate more easily. Of the 100 boxes initially tested, 50% Were thawed slightly, 10% Were very soft, 5% Were very soft with a foreign fishy odor. 35% Were properly frozen. There was some evidence by the inspector that it would take a 60 pound box of frozen boneless meat about three days to thaw if it was subjected to normal room temperature of 75 degrees. It was his opinion, that possibly the reason that the meat was in a thawed condition when it arrived in Little Rock, was that the meat had not received adequate time to become solidly frozen at the outset. Other evidence showed that Alford froze and stored seafood in its warehouse. Circumstantially, at least, this could account for some of the meat having a foreign fishy odor. However, there was no evidence to distinguish the particular damaged meat as coming from either Alford or Loop. The plaintiff sought damages from the defendants Alford, Loop and Express jointly in the amount of $5,237.52, plus interest and attorney's fees.

The plaintiff contends that subdivisions 9a, 23, 24 and 29a of Art. 1995, V.A.C.S. are applicable to the venue questions presented on this appeal. It is undisputed that defendants Alford, Loop and Express are corporations. Defendant Alford did not appeal from the trial court's order overruling its plea of privilege. Therefore, venue as to Alford is established in Nueces County. The proof was, however, that plaintiff has a cause of action against Alford in Nueces County. It showed that Alford had a refrigerated warehouse in Nueces County; that it accepted fresh meat from plaintiff; it issued its warehouse receipt to plaintiff showing that the meat delivered by the plaintiff to Alford was blast frozen; that such meat was subsequently delivered in Nueces County to Express; that a bill of lading was issued by Alford releasing the meat to Express; and that such meat was ultimately delivered by Express at its destination in a damaged condition. The evidence shows that at all times after plaintiff delivered the 472 boxes of meat to Alford in Nueces County, it was in the exclusive control of Alford and Express.

In a case factually similar to the situation before us, the Amarillo Court in an opinion by the then Chief Justice Denton stated that:

'. . . A bailor makes out a prima facie case of negligence against a bailee by proving the bailment and that the property was delivered to the bailee in good condition and that it was damaged while in the possession of the bailee or not returned at all . . .'

Zable v. Huff, 432 S.W.2d 717 (Tex.Civ.App.--Amarillo, 1968).

Where the property is lost or injured while in the exclusive custody of the bailee, his servant or agent, it is incumbent upon the bailee to prove that the loss or injury was not occasioned by the negligence of himself, or his servants or agents. Hislop v. Ordner, 28 Tex.Civ.App. 540, 67 S.W. 337 (1902). The burden rests with the bailee to show that the damage resulted without fault or negligence on his part. Absence of such proof to the contrary, the presumption of negligence prevails. City of Dallas v. Milum,200 S.W.2d 833 (Tex.Civ.App.--Dallas 1947, wr. ref. n.r.e.).

A shipper of goods by common carrier makes out a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at the place of origin and was delivered in a damaged condition by the carrier at its destination. Here Alford testified that the meat delivered to Express was random tested by a thermometor and that the meat tested was 0 degrees or below when delivered to Express at the instance of the plaintiff. There are four excepted perils in such a situation available as a defense to a common carrier: (1) an act of God; (2) the public enemy; (3) the fault of the shipper; or (4) the inherent nature of the goods themselves. Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex.Sup. 1963); Express made no attempt to introduce any evidence as to any of the excepted defenses. ¹ Chesapeake & Ohio Ry. Co. v. A. F. Thompson Mfg., Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659 (1926). The Court in the Thompson case said that the so-called presumption of negligence is not a presumption at all but is a rule of substantive law under which the carrier is liable for failure to transport safely unless a loss or damage is due to one of the specified causes.

In order to maintain a suit in a county other than that in which the corporation's principal place of business is located, it is only necessary that some part of either the primary right or the breach thereof occurred in the county where the suit was filed and the requirement that a part thereof shall have arisen where the suit was brought is met by proof that a contract was made in that county. Sani-Serv. Freezer Sales, Inc. v. D. R....