Piazza v. Louisiana & A. Ry. Co.

• Decision Date: 29 May 1950
• Docket Number: No. 19444,19444
• Citation: 46 So.2d 670
• Court: Court of Appeal of Louisiana — District of US
• Parties: PIAZZA v. LOUISIANA & ARKANSAS RY. CO. et al.

Page 670

46 So.2d 670

PIAZZA v. LOUISIANA & ARKANSAS RY. CO. et al.

No. 19444.

Court of Appeal of Louisiana, Orleans.

May 29, 1950.

Elizabeth Ridnour Haak, New Orleans, and Jos. R. Brown, Kansas City, Mo., M. Truman Woodward, Jr., Milling, Godchaux, Saal & Saunders, New Orleans, of counsel for defendant and appellant Louisiana & Arkansas Railway Co.

George Piazza, New Orleans, for plaintiff and appellee.

Ainsworth & Ainsworth, New Orleans, for defendant and appellee, Commercial Terminal Warehouse Company, Inc.

McBRIDE, Judge.

Anthony Piazza, plaintiff, who operates a restaurant and bar at Gretna, Louisiana, purchased, during 1945, several carloads of beer manufactured by Eulberg Brewing Company at Portage, Wisconsin. Plaintiff deposited $1.00 on each case of beer purchased, in order to assure the return to the brewery of the empty bottles, and upon the return of such empty bottles the brewery would refund to plaintiff $1.00 on each case returned. On or about August 11, 1945, plaintiff shipped 2062 cartons of empty beer bottles and 206 cases of spoiled beer, for credit, to Eulberg Brewing Company at Portage, Wisconsin. The Commercial Terminal Warehouse Company, Inc., under a contract with plaintiff, loaded from its warehouse the cartons and cases into a freight car, placed seals on the doors of the car, and then turned the car over to the Louisiana & Arkansas Railway Company for delivery to the consignee, the railroad company issuing a uniform straight bill of lading covering the car, and consigning it as directed. However, the car was diverted in transit upon instructions of the consignee, Eulberg Brewing Company, to Hartig Brewing Company of Watertown, Wisconsin, the former 'owing' the latter a large number of empty bottles, the car being diverted to the Hartig Brewing Company's plant at Watertown for the purpose of permitting it to remove from the car the empty beer bottles therein.

When the car was opened by the Hartig Brewing Company upon arrival at Watertown, it was found that the contents thereof had been severely damaged. Some of the empty beer bottles were salvaged, and they, with the broken glass from the other empty bottles, were unloaded. All, or some, of the spoiled beer, was allowed to remain in the car, and the car was then consigned by Hartig Brewing Company to Eulbreg Brewing Company, Portage, Wisconsin, under a separate bill of lading issued by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, and was subsequently delivered to the consignee.

Alleging that when the shipment reached Watertown, Wisconsin, 1062 cartons of empty beer bottles, valued at $1.00 per carton, and all of the 206 cases of spoiled beer, valued at $2.60 per case, had been damaged to the extent of complete destruction, plaintiff filed this suit for $1597.60 against the Louisiana & Arkansas Railway Company and Commercial Terminal Warehouse Company, Inc., in Solido, claiming that the damage to the shipment was caused by the negligence of the railway company in transporting the car to Watertown and intimating that the improper loading of the car by Commercial Terminal Warehouse Company contributed to the loss.

After the exceptions filed by the Louisiana & Arkansas Railway Company had been overruled, which exceptions, incidentally, were not reurged before us, said defendant answered, setting forth that its employees were free from negligence, and that if there was damage to the shipment, which was denied, that the damage was due to the loading of the bottles in broken, weak, dilapidated cartons which were improperly placed and stacked within the freight car by the shipper's agent. In the alternative, the railroad company prayed that if it should be cast in damages, then it should have a judgment for a corresponding amount against the Commercial Terminal Warehouse Company, Inc., which loaded the car. The warehouse company, in its answer, disclaimed any liability whatsoever.

A trial of the case on its merits in the court below culminated in a judgment in favor of plaintiff for $1597.60 against the Louisiana & Arkansas Railway Company; plaintiff's suit against the other defendant, the warehouse company, was dismissed. The railroad alone has appealed from the judgment, and, therefore, the Commercial Terminal Warehouse Company, Inc., has passed out of the case, insofar as plaintiff's claim against it is concerned.

The only basis upon which the Louisiana & Arkansas Railway Company, the initial carrier, can be held liable to plaintiff is under the provisions of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 20(11). Plaintiff originally adopted the position that his suit was one sounding on tort, and that his action was ex delicto rather than ex contractu. During the course of the trial below, however, plaintiff committed himself to an action on the contract, and introduced into evidence the bill of lading issued by the defendant railroad.

The bill of lading is marked with the letters 'SL&C,' which, as is well known, means 'shipper's load and count.' It is well settled that where the car is furnished to the shipper who himself loads his goods, he cannot recover for damages until he has alleged and proved that the goods, when loaded, were not in the same damaged condition later complained of, and that the goods were properly boxed or crated if either appears to be necessary and customary, and were properly loaded and placed into the car. See Fowles v. Louisville & N. R. Co., 15 La.App. 421, 132 So. 240.

We direct our attention first to the question whether the car was properly loaded by plaintiff's agent, the warehouse company. There is an abundance of testimony concerning the manner and method employed. The shipping and receiving clerk of the Commercial Terminal Warehouse Company, Inc., supervised this particular shipment, and the gravamen of his testimony, which is unrefuted, is that the cartons and cases were stacked in the car in the usual and customary manner. The president of the warehouse company, who has been in the loading business for approximately forty years, testified that he inspected the shipment, and that the car was loaded properly and in the customary manner. He stated that during the year 1945 his concern had loaded 61 cars of empty beer bottles, all in the same manner as in the instant case, and that his company received no complaints of breakage.

The evidence shows that the cartons and cases were secondhand corrugated cardboard boxes of varying sizes, and that some of them were tied with string so that the contents would not fall out, and others were strapped with tape. The spoiled beer was stacked in the beam end of the car, 8 cartons across, which left a 6 inch slack, and the opposite end was loaded with 9 cartons across; the load reached to within a few inches of the roof of the car, and was characterized as 'flush.' It was testified to by one of the witnesses for the warehouse company that the slack was left in the beam end, where the spoiled beer was located, because of the possibility of the beer exploding. The load was placed up against one of the doors of the car, and the other door was braced with wooden boards nailed to the posts of the door.

Warren T. Marseilles, who had been employed for 29 years as city auditor by the Western Weighing and Inspection Bureau, a subsidiary of all the railroads, and who testified that he is an expert on the loading of railroad freight cars, his exclusive work consisting of inspecting beer shipments, was present in the court below and heard the testimony of the employees of the warehouse company as to the method of loading the car, and examined the diagram submitted by those employees. Marseilles testified, under examination by counsel for the railroad company, that : 'From this (loading diagram) and from what I heard Mr. Gilbert testify, I would say the car was properly loaded. * * *'

On cross examination, the witness reiterated that from the explanation of Gilbert, he would say that the car had been properly loaded, and in the manner in which his association advised shippers to load cars.

As to the corrugated cartons and cases, the evidence shows that while they were secondhand, they were serviceable, and that cartons and cases of the same kind had been used in making other shipments, about which there had been no complaints of breakage. Gilbert, of the warehouse company, stated than when Piazza received a carload of beer, it would be allowed to remain in his company's warehouse, and that Piazza would withdraw, from time to time, such cases as the volume of his business demanded. Gilbert admitted that when cartons of empty bottles were received from Piazza to be stored in the warehouse for return shipment to the brewery, he would sometimes find defective cartons, but in those instances he would remove filled bottles of Piazza's beer from servicable cartons in the warehouse, into which he would transfer the empty bottles from the defective cartons.

In addition to the above testimony concerning the condition of the cases and cartons, and the manner in which they were loaded, the record contains the depositions of the station agent of the Milwaukee Railroad at Watertown, who examined the car at Watertown. The station agent stated, 'I think the car was loaded about as good as it could be loaded considering the condition of the cases.'

Both the station agent and another employee of the Milwaukee Railroad testified that they noticed no bracing in the car, and they attributed the damage to shifting. However, all of the witnesses who testified for the warehouse company were emphatic that one door of the car was properly braced, and that the load was placed flush against the other door. But whether there was any bracing placed on the interior of the car is of no moment, as we find that Marseilles testified that it is not at all unusual when a flush load is being transported, such as a load of cartons, not to have bracing...