Red Line Transfer & Storage Co. v. Cash & Sons L-P Gas Co.

• Decision Date: 15 November 1971
• Docket Number: No. 5--5651,L-P,5--5651
• Citation: 472 S.W.2d 705,251 Ark. 407
• Court: Arkansas Supreme Court
• Parties: RED LINE TRANSFER & STORAGE COMPANY, Appellant, v. CASH & SONSGAS COMPANY and Hurley Furniture & Hardware Co., Inc., Appellees.

Page 705

472 S.W.2d 705

251 Ark. 407

RED LINE TRANSFER & STORAGE COMPANY, Appellant, v. CASH & SONS L-P GAS COMPANY and Hurley Furniture & Hardware Co., Inc., Appellees.

No. 5--5651.

Supreme Court of Arkansas.

Nov. 15, 1971.

Dickey, Dickey & Drake, Pine Bluff, for appellant.

Huey & Vittitow, Warren, for appellees.

JONES, Justice.

Cash & Sons L-P Gas Company and Hurley Furniture & Hardware Co., Inc., hereafter referred to as 'Cash' and 'Hurley,' own and operate retail stores in Warren, Arkansas. Red Line Transfer & Storage Company, hereafter referred to as 'Red Line,' is a common carrier of freight by motor truck and services the Warren area. Cash and Hurley filed separate suits against Red Line in the Bradley County Circuit Court alleging damage in transit to a washing machine purchased in Little Rock by Cash and a gas range purchased in Cleveland, Tennessee, by Hurley and delivered to their places of business in Warren by Red Line. A consolidated trial of the cases before the judge, sitting as a jury, resulted in judgments against Red Line for $164 in favor of Cash and for $117.98 in favor of Hurley.

On appeal to this court Red Line relies on two points. It contends that Cash and Hurley failed to prove that the washing machine and range were in good condition when delivered to Red Line, and it contends that they failed to prove that the articles were in a damaged condition when delivered to them by Red Line.

Cash submitted evidence that three washing machines were delivered to its store in Warren by Red Line; that the shipment originated in Little Rock and the machines were concealed in cardboard boxes or cartons. The testimony is to the effect that there was no damage to one of the machines, but the cardboard carton on one of them was broken and a scratched place was plainly visible on the machine at the time it was delivered in Warren. A notation of that fact was made on the delivery ticket and damages in the amount of $15 were subsequently paid on this machine by Red Line. Mr. O. S. Cash as well as his son, Bruce, testified that the cardboard carton containing the third machine was caved-in on top, and that upon removal of the carton and examination of its contents soon after delivery, it was found that this machine had sustained extensive and irreparable damage to the controls on the back of the machine.

Mr. Bruce Cash, the store manager, testified that he was in and out of the store during the day the washing machines were delivered but that he does not recall whether he observed or assisted in the actual process of unloading this particular shipment or not. He testified that he did uncrate the washer on the same day it was delivered and found that it was damaged beyond repair.

At this point Cash rested its case and Red Line moved for a directed verdict on the ground that there was no proof that the washing machine was delivered to Red Line in good condition and delivered to Cash in a damaged condition. The motion was denied by the trial court, whereupon Hurley proceeded with its evidence.

Mr. Terral Wallace, manager of Hurley, testified that he ordered a gas range from the seller in Cleveland, Tennesssee, and that it was delivered to the Hurley Store in Warren by Red Line. He testified that the range was concealed in a crate or carton when it was delivered and that it was inspected by his assistant manager, Mr. Leroy Thornton, who signed the freight bill indicating that no defect was noticed on the carton at that time. He testified that on the day following delivery, when the crates were opened by the warehouse men, the damage to the range was first discovered. Mr. Wallace testified that the frame of the range had been bent until it could not be repaired to a safe and saleable condition, and that it appeared to have been dropped from a height landing on its left front corner. A copy of a freight bill was placed in evidence as an exhibit to Wallace's testimony. It showed delivery of one gas and one electric range, and was signed by Leroy Thornton under the printed form statement 'above shipment received in good condition.'

Mr. Wallace testified that on many previous occasions he had reported 'concealed damages' to Red Line and the claims were paid. He testified that he was not present at the Hurley warehouse when the range was delivered, but that when he inspected it the day following delivery, there was no apparent damage to crate or carton and that he only discovered the damage to the range after the crate was removed. Mr. Wallace testified that it was his understanding the range was shipped by rail from Cleveland to Memphis, Tennessee, and was picked up by Red Line in Memphis. He says that he has no way of knowing what happened to the range in transit.

At this point Hurley rested its case and Red Line moved for a directed verdict on the ground that there was no proof that the range was delivered to Red Line in good condition and delivered to Hurley in a damaged condition. The motion was denied, whereupon Red Line proceeded with its evidence.

Mr. Presson, manager of the claims department for Red Line, testified that the freight bill on the washers delivered to Cash bore a notation '1 washer damaged,' and that this damage was paid in the amount of $15.00. He testified that a claim for 'concealed damage' discovered after delivery was presented by Cash on another washer and that this claim was denied because he felt that if damage to one washer in the amount of $15.00 could be discovered and noted on the freight bill, then certainly the claimed damage to the other washer amounting to total loss could have been discovered and so noted on the freight bill.

At this point Red Line introduced as exhibit 1 to Mr. Presson's testimony, a delivery receipt or freight bill bearing the notation: '1 washer damaged.' This exhibit was signed by the office secretary of Cash under the printed form words, 'The above shipment received in good condition.' Mr. Presson then testified on cross-examination as follows:

'BY MR. HUEY:

Q. Mr. Presson, what condition was the washer in in Little Rock when Red Line picked them up?

A. From the bill of lading contract, apparently in good order.

Q. Then if something happened to it, it happened from the time it left Little Rock until it got delivered here in Warren?

A. Not necessarily. We delivered it in apparent good order, in the same condition which we received it.

Q. Do you have any evidence that damage occurred to this machine at any place other than while it was in transit prior to the point of delivery to Mr. Cash? You investigated this pretty thoroughly?

A. I investigated it and have no factual evidence that it was and no factual evidence that it was on delivery to Mr. Cash (sic).

Q. Have you seen this merchandise?

A. I have not.

Q. Then you don't know if its damaged yet?

A. I do not, only from the records.'

This witness further testified that when Red Line executes a bill of lading it seals the contract of...