National Carloading Corp. v. Kitchen Designs, Inc., 8047

• Decision Date: 27 July 1971
• Docket Number: No. 8047,8047
• Citation: 471 S.W.2d 90
• Parties: NATIONAL CARLOADING CORPORATION, Appellant, v. KITCHEN DESIGNS, INC., Appellee.
• Court: Texas Court of Appeals

Page 90

471 S.W.2d 90

NATIONAL CARLOADING CORPORATION, Appellant, v. KITCHEN DESIGNS, INC., Appellee.

No. 8047.

Court of Civil Appeals of Texas Texarkana.

July 27, 1971.

Jack L. Coke, Jr., Phinney, Hallman, Pulley & Livingstone, Dallas, for appellant.

Paul J. Chitwood, Chitwood & Riley, Dallas, for appellee.

CHADICK, Chief Justice.

This is an appeal from the judgment entered in a suit brought by Kitchen Designs Inc., against National Carloading Corporation in the 44th District Court of Dallas County, Texas. The suit was for damages to an interstate shipment of kitchen cabinets that had been shipped under a bill of lading issues by National Carloading Corporation. The action was brought pursuant to the provisions of Sec. 20(11) Title 49, United States Code. Trial was a non-jury proceeding. Judgment was rendered against National Carloading Corporation in the sum of $1,249.72, and that corporation has perfected an appeal.

The trial court filed the following findings of fact:

'1. Defendant is a common carrier freight forwarder and is certificated as such by the Interstate Commerce Commission.

2. On the 9th day of July, 1969, Defendant issued a uniform straight bill of lading to National Industries at Odenton, Maryland, for the transportation of twenty-two cartons containing kitchen cabinets.

3. Defendant herein acknowledged receipt of the kitchen cabinets in 'apparent good order'.

4. The said kitchen cabinets were in good order when tendered to the carrier by National Industries at Odenton, Maryland.

5. Defendant transported the kitchen cabinets from Odenton, Maryland. to Dallas, Texas.

6. The kitchen cabinets were damaged when delivered by Defendant to Plaintiff at Dallas.

7. Defendant accepted all of the kitchen cabinets as salvage.

8. The transportation charges for the movement of the kitchen cabinets from Odenton, Maryland, to Dallas, Texas, were paid by Plaintiff.

9. The fair market value of the kitchen cabinets in Dallas, Texas, at the time of delivery and in good condition was $1,249.72.

10. The fair market value of the kitchen cabinets in Dallas, Texas, on August 13, 1969 (the delivery date) was nothing.

11. There was no inherent defect in the manufacture of the kitchen cabinets.

12. Plaintiff filed its claim with Defendant for the damages suffered within nine months of the date of delivery.

13. Defendant declined the claim of Plaintiff and the claim has not been paid.'

The National Carloading Corporation as appellant has briefed four points of error, to-wit:

'First Point of Error--The Appellee failed to maintain its burden of proof in the trial court.

'Second Point of Error--The record in the trial court will not support the judgment entered.

'Third Point of Error--The Appellee failed to prove that the shipper properly prepared and packaged the goods in a manner sufficient to allow them to withstand ordinary handling while in transit.

'Fourth Point of Error--The Court erred in failing to find that the damage to the goods was due to their inherent nature.'

and in response Kitchen Designs, Inc., as appellee, has briefed the following counterpoints:

'Reply Point Number One--This case should be affirmed because the material findings of fact filed by the trial court support the judgment and are unchallenged by appellant in its brief and appellant is thereby bound by such findings.

Reply Point Number Two--This case should be affirmed because any omitted findings to support the judgment are to be presumed, if such findings are supported by the evidence.'

Initially the merit of appellee's first counterpoint must be determined. Appellee takes an unyielding stand that appellant, National Carloading Corporation is bound by the trial court's findings of fact because that entity failed to challenge the findings by appropriate points in its brief. In support of this contention only Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App. San Antonio 1970, no writ) is cited. This excerpt from that case is emphasized: 'Material findings of fact must be challenged by appropriate points in appellant's brief or else appellant is bound by such findings.' As authority the opinion therein cites Kroger Co . v. Warren, 420 S.W.2d 218 (Tex.Civ.App. Houston 1st Dist., 1967 no writ); Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ .App. Amarillo 1968, writ ref'd, n.r.e.); Curry v. E. E. Stone Lumber Co., 218 S.W.2d 293 (Tex.Civ.App. El Paso 1948, writ ref'd, n .r.e.). See also other cases touching upon the subject, such as Waters v. King, 353 S.W.2d 326 (Tex.Civ.App. Dallas 1961, no writ); Ferrier v. Caprock Machinery Company, 350 S.W.2d 224 (Tex.Civ.App. Amarillo 1961); Thompson v. Larry Lightner Inc., 230 S.W.2d 831 (Tex . Civ.App. San Antonio 1950, wr. ref'd, n.r.e.); Taylor v. Austin, 221 S.W.2d 933 (Tex.Civ.App. Galveston 1949); Trahan v. Marvin Distributing Corporation, 222 S.W.2d 1021 (Tex.Civ.App. Galveston 1949); Harrison v. Ingham, 223 S.W.2d 267 (Tex.Civ.App. San Antonio 1949); and Tex.R.Civ.P. 418 (1955). An analysis of the cases and the rule will not be undertaken, but for the reasons next discussed a review of the facts will be made.

The appellant's brief grouped the first and second points of error for joint consideration and the argument is made under such points that (1) there is no evidence to show the actual condition of the cabinets within the cartons at the time the cabinets were tendered to the initial carrier at point of origin, and (2) that there is no evidence to show the condition of the cabinets at destination. It may be seen by reference to the findings of fact quoted in an earlier paragraph that the trial judge's determination of these two fact issues was made a part of the formal findings of fact incorporated in the appeal record. Finding No. 4 is that the cabinets were in good order when tendered, and finding No. 6 is that the cabinets were damaged when delivered at destination. A point of error should succinctly designate or describe and thereby segregate the particular act, omission, conduct or circumstance in the trial court that is urged as reversible error. The points' function is to particularize and direct the appellate court's attention to a specific error in the trial proceeding. Tex.R.Civ.P. 418, General Commentary, Vol. 4, p. 573 (1955); Lang v. Harwood, 145 S.W.2d 945 (Tex.Civ.App. Waco 1940, no writ); Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). Unquestionably, clarity would have been served in this instance if the appellant had stated as a point of error that the case should be reversed because there was no evidence to support the trial court's finding No. 4; and a like point with respect to finding No. 6. However, Frambrough, supra calls for the reviewing court to pass on the sufficiency of a point in the context of the statement and argument thereunder. See Federal Underwriters Exchange v. Lynch, 140 Tex. 516, 168 S.W.2d 653 (Tex.Com.App.1943). This procedure will be followed even though in this instance the points are technically imperfect and multifarious. To do so seemingly relegates Sec. (b) of Rule 418 pertaining to the content of a point of error in a brief to little more than a formal suggestion rather than a briefing requirement, but there is justification as the statement and argument under the points makes the appellant's contention perfectly clear.

Appellant's argument implies a construction that the first two points of...