Refrigerated Transport Co., Inc. v. Heller Co.

• Decision Date: 14 June 1973
• Docket Number: No. 2,No. 48140,48140,2
• Citation: 199 S.E.2d 590,129 Ga.App. 332
• Parties: REFRIGERATED TRANSPORT COMPANY, INC. v. HELLER COMPANY
• Court: Georgia Court of Appeals

Page 590

199 S.E.2d 590

129 Ga.App. 332

REFRIGERATED TRANSPORT COMPANY, INC. v. HELLER COMPANY.

No. 48140.

Court of Appeals of Georgia, Division No. 2.

June 14, 1973.

Rehearing Denied June 29, 1973.

Daniel C. B. Levy, Atlanta, for appellant.

Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Charles E. Lamkin, A. A. Baumstark, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The Heller Company, a common carrier, sued Refrigerated Transport Company, Inc., another common carrier, praying a recovery of $2,094.10, and attached to its complaint three invoices for transporting goods for the defendant. Defendant answered, denied owing the plaintiff, and filed a counterclaim against plaintiff for $2,100, alleging that a shipment of frozen food, transported by plaintiff from Atlanta to New York, had been damaged to that extent.

Plaintiff was awarded a partial summary judgment on its original complaint, but subject to defendant's right to show plaintiff was indebted to it on defendant's counterclaim. The counterclaim came on for trial before the judge, without a jury. After evidence had been presented, the court denied defendant's counterclaim, and rendered final judgment for plaintiff as to the amount awarded under the partial summary judgment. Defendant appeals.

The trial court's finding of fact was to the effect that no legal evidence was offered as to the value of the frozen food when it reached its destination, nor as to what condition the food was in at time of its delivery. No inspection was made when the frozen food reached its destination; but after the food was returned to Atlanta, an examination was made and the food was destroyed, ostensibly because it was unfit for human consumption.

During the hearing the trial court admitted in evidence the bill of lading which accompanied the frozen food, which contained the following language: 'Keep frozen-5 degrees' and on the back of same there were certain unexplained writings and markings in pen or pencil, as follows: 'Received subject to approval of Eggo 9-17-70 469 pieces 35 to 46 temperature 9-17-70 Date Doty Checker Robert Walls driver.' Absolutely no explanation of the meaning of these writings and markings was offered in evidence; the testimony of 'Doty, Checker' was not offered; nor was the testimony of 'Robert Walls-driver' offered; and no evidence was offered by which the condition or value of the frozen food at destination might be determined. The defendant had...