National Transp., Inc. v. Inn Foods, Inc., 86-2527

• Citation: 827 F.2d 351
• Decision Date: 26 August 1987
• Docket Number: No. 86-2527,86-2527
• Parties: NATIONAL TRANSPORTATION, INC., Appellee, v. INN FOODS, INC., d/b/a Inn Foods and U.S. Food Service, a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 351

827 F.2d 351

NATIONAL TRANSPORTATION, INC., Appellee, v. INN FOODS, INC., d/b/a Inn Foods and U.S. Food Service, a

corporation, Appellant.

No. 86-2527.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1987.

Decided Aug. 26, 1987.

T. Randall Wright of Omaha, Neb., for appellant.

David D. Begley, Omaha, Neb., for appellee.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and MURPHY, ^* District Judge.

McMILLIAN, Circuit Judge.

Inn Foods, Inc., appeals from a final order entered in the District Court ¹ for the District of Nebraska dismissing its counterclaim against National Transportation, Inc. (National). Inn Foods sought damages suffered when it was forced to resell at a loss foods shipped by National because the foods were defrosted. The district court found in favor of National on its claim for transportation and other costs and dismissed Inn Foods' counterclaim. National Transportation, Inc. v. Inn Foods, Inc., No. CV 85-0-846 (D.Neb. Nov. 5, 1986) (Memorandum and Order). For reversal, Inn Foods argues that the district court erred in (1) holding that Inn Foods failed to make a prima facie case of carrier liability for damaged goods and (2) excluding testimony that foods kept in cold storage from 15 to 60 days would be frozen. For the reasons discussed below, we affirm.

National is a Nebraska corporation operating as a motor carrier in interstate commerce. Inn Foods has its principal place of business in Watsonville, California, and also does business as U.S. Food Service and Valley Packing Services.

In early July 1985, Inn Foods requested National to transport two loads of frozen foods from Watsonville to Honor Foods, Inc., in Philadelphia, Pennsylvania. Inn Foods stored the frozen foods at various commercial cold storage facilities in Watsonville because it had no cold storage facilities. The frozen foods were packed in containers that were in turn enclosed in larger boxes. National drivers loaded the boxes on to National refrigerated truck trailers, prepared bills of lading for each load, gave copies to the cold storage company and Inn Foods, and retained copies to present to Honor Foods on delivery.

The bills of lading described the food to be shipped as "780 cases of veg/fruits/seafoods" and "1,548 cases of frozen veg/fruits/seafoods." Each bill of lading contained the following notice: "This merchandise is a food product requiring handling at a temperature of zero degrees fahrenheit or lower." Each bill of lading also contained the following provision: "The property described below is in apparent good order, except as noted (content and condition of content of packages unknown) ... which said carrier ... agrees to carry to its usual place of delivery or destination."

The first load of foods left California on July 12, 1985, and was delivered to Honor Foods on July 22, 1985. The second load left July 18, 1986, and arrived in Philadelphia on July 24, 1986. The operations manager for Honor Foods testified that upon arrival at Honor Foods, a number of the boxes of frozen foods were visibly defrosted, and the boxes on the bottom were crushed and in an unfrozen state. The operations manager ordered a number of boxes opened and inspected and their temperature determined by the use of pulp thermometers. The temperature in some of the boxes was as high as 35 to 45 degrees fahrenheit. Honor Foods rejected the foods because they were not frozen and refused to pay National for transportation costs.

An inspector from the Pennsylvania Department of Agriculture testified by deposition that he examined a number of the boxes shortly after their arrival at Honor Foods and found the boxes to be wet or sweated and the foods inside to be "bendable and smashy-like or smushy." The inspector determined that the foods, although thawing, were still edible. National drivers then took the foods to United States Cold Storage of Philadelphia where they were blast-frozen and stored. Inn Foods subsequently sold the foods at a loss to Peltz Foods in New York.

National billed Inn Foods for the transportation, blast-freezing and storage costs. When Inn Foods refused to pay the bill, National brought suit to recover these costs. Inn Foods counterclaimed for $4,218.08, the difference between the price Honor Foods had agreed to pay and the price Peltz Foods paid for the foods. The district court dismissed Inn Foods' counterclaim on the ground that Inn Foods failed to present prima facie evidence that the foods were frozen at the time they were delivered to National. National Transportation, Inc. v. Inn Foods, Inc., slip op. at 6. The district court noted that Inn Foods did not offer evidence concerning the manner in which the foods had been stored prior to delivery to National. Id. at 7-8. Inn Foods appeals from the district court's dismissal of its counterclaim.

Inn Foods' counterclaim is brought under the "Carmack Amendment" to the Interstate Commerce Act, 49 U.S.C. Sec. 11707(a)(1), which provides that a carrier is liable to the shipper for the actual loss or injury to the shipper's property caused by the carrier. ² In an action to recover for loss, the shipper must establish that (1) the shipper delivered goods to the carrier, (2) the goods were in good condition at the time of delivery, (3) the goods arrived in damaged condition, and (4) the shipper suffered damages. Id; Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct. 1142, 1145, 12 L.Ed.2d 194 (1964).

Inn Foods first contends that the district court erred in holding that it failed to establish a prima facie case that the goods were frozen at the time of delivery to National. Inn Foods argues that the district court improperly relied on this court's decision in Pillsbury Co. v. Illinois Central Gulf R.R., 687 F.2d 241 (8th Cir.1982) (Pillsbury ), because the goods in Pillsbury were under seal when delivered to the carrier and thus not open for inspection by the carrier. Inn Foods relies on this court's decision in Kaiser Aluminum & Chemical Corp. v. Illinois Central Gulf R.R., 615 F.2d 470 (8th Cir.), cert. denied, 449 U.S. 890, 101 S.Ct. 249, 66 L.Ed.2d 116 (1980) (Kaiser ), for the rule that a clean bill of lading is prima facie evidence of the condition of the goods upon delivery to the carrier. Inn Foods argues that National issued a clean bill of lading and that this undisputed evidence established Inn Foods' prima facie case.

A clean bill of lading is evidence of delivery in good condition only as to those goods which the carrier can visually observe or inspect. D.P....