Red Arrow Freight Lines, Inc. v. Howe

• Decision Date: 27 April 1972
• Docket Number: No. 681,681
• Citation: 480 S.W.2d 281
• Parties: RED ARROW FREIGHT LINES, INC., Appellant, v. Roy G. HOWE, Appellee.
• Court: Texas Court of Appeals

Page 281

480 S.W.2d 281

RED ARROW FREIGHT LINES, INC., Appellant, v. Roy G. HOWE, Appellee.

No. 681.

Court of Civil Appeals of Texas Corpus Christi.

April 27, 1972.

Rehearing Denied May 25, 1972.

Head & Kendrick, Michael Kendrick, Jr., Corpus Christi, for appellant.

Davis, O'Connor & Pullen, Thomas J. Smith, San Antonio, for appellee.

OPINION

BISSETT, Justice.

This is a concealed personal property damage suit brought by Roy G . Howe, a consignee, against Red Arrow Freight Lines, Inc., a common carrier, for damages to a television set alleged to have been caused by the carrier.

After a non-jury trial in the County Court of San Patricio County, Texas, the court awarded Roy G. Howe, hereinafter called 'Consignee', damages in the sum of $200.00 and attorney's fees in the amount of $100.00. Red Arrow Freight Lines, Inc., hereinafter sometimes called 'Carrier' and sometimes called 'Red Arrow', has timely perfected an appeal from the judgment so rendered by the trial court. We affirm.

The following facts are undisputed: Consignee, in early 1970, ordered seven television sets from Central Distributing Company, San Antonio, Texas. On March 9, 1970, Central Distributing Company as consignor, delivered the sets to Carrier, at San Antonio, Texas, for shipment to Consignee in Aransas Pass, Texas. The shipment was intrastate. Each set was packed in a cardboard carton, the contents of which were concealed and the condition of which could not be determined by visible inspection of the outside of the carton. The cartons containing the television sets were delivered to Consignee by Carrier on March 17, 1970. When Consignee opened them it was discovered that the picture tube on one of the sets was broken. The damaged set was packed for shipment by the manufacturer at Franklin Park, Illinois. It was shipped by the manufacturer to Central Distributing Company via a combination of truck, rail and boat transportation. The carton containing the set arrived at the warehouse of Central Distributing Company about February 24, 1970, where it was stored until shipment was made to Consignee. It was delivered to Consignee unopened and in its original shipping carton. The Bill of Lading signed by Carrier's agent, in part, stated: 'Received . . . from Central Distributing Company . . . the property described below in apparent good order except as noted (contents and condition of contents of packages unknown)'. No exceptions are noted on the Bill of Lading. The Delivery Receipt signed by Consignee, in part, stated: 'Received above described property in good condition, except as noted'. There were no exceptions noted thereon. The damage to the television set amounted to $200.00.

Findings of fact were requested by Carrier and duly filed by the trial court. In addition to certain other findings, the trial court also found:

'3. When said Motorola television set was delivered by Central Distributing Company to Red Arrow Freight Lines, Inc. the carton containing said television set was not damaged.

5. When said Motorola television set was delivered to Roy G. Howe, the carton in which it was contained showed visible damage.

6. When the carton containing said Motorola television set was opened by Roy G. Howe, it contained a television set with a broken picture tube.'

Based on its findings of fact and its conclusion of law that Carrier was liable to Consignee for the damages to the television set, judgment was rendered in behalf of Consignee, as stated.

Mr. Newberger, the treasurer of Central Distributing Company who had been employed by that company for about six years preceding the trial, testified that the carton in which the damaged television set was packed was treated in the normal, usual and customary manner by the employees of Central Distributing Company; the normal, usual and customary procedure was that the carton would have been examined by an employee of Central Distributing Company when it was received and again when it was delivered to the carrier. Further, according to their standard operating procedure, the carton would not have been accepted if damage had been noticed when received, nor would it have been delivered to the carrier for shipment to a customer if damage to the carton had been discovered. He did not recall ever having personally seen the carton while it was in the shipper's warehouse, but he was familiar with the shipment made to Consignee and their usual business records pertinent thereto. He never saw anyone inspecting the carton. He did say 'if there was outward damage to the carton as a matter of normal procedure we open the carton and inspect it and in my opinion we inspected it'. He also said that, as a matter of usual practice, shipments are checked twice by Central Distributing Company's employees, first, when they are received and before they are placed in storage, and, second, before the shipments leave their loading dock. Also, he said that the carriers check the shipments and if there is any damage 'they either refuse it or make a notation on the freight bill'. He was quite positive that the carton was inspected by employees of Central Distributing Company and that no damage was noted by them, relying on the custom and standing orders of Central Distributing Company, plus his personal observation that he had seen the company's employees inspecting freight shipments on other occasions. He further stated that he did not have any reason to believe that the shipping carton in which the damaged set was packed was treated in any manner different from that prescribed by their usual customary and normal procedures.

Consignee was asked if there was any obvious damage to the carton when it was delivered to him. He answered: 'Yes, there was, the corners were kind of caved in and one side or two sides were kind of pressed inward as though they had been bumped.' Such exterior damage to the carton and its 'caved in' side was in the immediate area of the broken picture tube. He did not unpack the carton immediately upon delivery because 'the driver was in a hurry, said he didn't have time to wait and as soon as I uncrated it, if there was any damage call for an inspection.'

Carrier, by proper points of error, challenges the judgment by asserting that the implied findings (a) 'the damaged television set was delivered to Red Arrow by Central Distributing Company (the shipper) in good condition,' and (b) 'the carton containing the damaged television set showed more visible damage when delivered to plaintiff than when delivered by Central Distributing Company (the shipper) to Red Arrow,' are without support in the evidence, that the evidence is factually insufficient to support such implied findings, and that they are so contrary to the great weight of the credible evidence that they are manifestly unjust and should be set aside. In addition to the attack made on the implied findings, Carrier also contends that there was 'no evidence' and 'insufficient evidence' to support finding of fact No. 3, and alternatively, that such finding is so 'contrary to the weight of the credible evidence that it is manifestly unjust and should be set aside'. We have reviewed the record in its entirety and have carefully considered these points under the principles set out in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965), In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), Great American Reserve Insurance Company v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.--Tyler 1971, writ ref'd n.r.e.) and in Swansey v. Lightfoot, 450 S.W.2d 755 (Tex.Civ.App.--Corpus Christi, 1969, n.w.h.).

Our Supreme Court, in Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99 (Tex.Sup.1963), said:

'Under the general common law rule, a shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination. The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent. . . .'

Consignee had the burden of obtaining favorable findings establishing both liability and damages. Missouri Pacific R. Co. v. Whittenburg & Alston, 424 S.W.2d 427 (Tex.Sup.1968). In order to establish liability, Consignee was required to prove by sufficient evidence and to obtain fact findings of (1) delivery of the property to Carrier in good condition, and (2) receipt of the property by Consignee from Carrier in a damaged condition. The evidence is conclusive with respect to damage at destination, and there is an express finding that the property was in a damaged condition when Carrier delivered it to Consignee. It is also undisputed and there is an express finding that the amount of the damage was $200.00. No complaint is registered with respect to either of such express findings. The damage to the television set was not shown to have been caused by any of the excepted perils mentioned by the Supreme Court in Elmore & Stahl, supra. Consequently, a single question is presented: Did Roy G. Howe, the consignee, carry his burden of proof of establishing, by sufficient evidence, that the damaged television set was in good condition when it was delivered by Central Distributing Company to Red Arrow, the carrier?

In determining the answer to the question before us, we bear in mind that the condition of the television set at the time of delivery to Carrier may be established by circumstantial evidence, as well as by direct evidence. Of course, the circumstances proved must be such that necessary facts to support the judgment rendered reasonably follow from the...