Scott v. J. J. Brady & Sons, Inc., 6424

• Citation: 113 N.H. 65,302 A.2d 108
• Decision Date: 28 February 1973
• Docket Number: No. 6424,6424
• Parties: Theodore SCOTT et al. v. J. J. BRADY & SONS, INC.
• Court: Supreme Court of New Hampshire

Page 108

302 A.2d 108

113 N.H. 65

Theodore SCOTT et al. v. J. J. BRADY & SONS, INC.

No. 6424.

Supreme Court of New Hampshire.

Feb. 28, 1973.

Perkins, Holland, Donovan & Beckett, Exeter (William H. M. Beckett, Exeter, orally), for plaintiffs.

Devine, Millimet, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for defendant.

GRIFFITH, Justice.

This is a suit against a common carrier to recover damages to five pure standardbred trotting horses, allegedly sustained during the transportation of the animals by the defendant from Deland, Florida to Liberty Bell Park, Pennsylvania, on March 20, 1965. The plaintiffs' first count was based on breach of the contract of carriage. The second and third counts alleged negligence in the handling of the defendant's truck. Prior to the jury trial the court ruled that the plaintiffs had the burden to prove all three counts of its declaration and noted the plaintiffs' exception as to the second and third counts. At the close of the plaintiffs' evidence the defendant moved for a nonsuit. The Court, Grant, J., allowed the motion and saved the plaintiffs' exception.

Federal law must be applied to the facts presented in the record as this case arises from the carriage of goods in interstate commerce. Akerly v. Railway Express Agency, 96 N.H. 396, 77 A.2d 856 (1951); Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1912). The Carmack amendment to the Interstate Commerce Act makes any interstate common carrier liable 'for full actual loss, damage, or injury' which it causes to the transported goods. 49 U.S.C.A. § 20(11). This ligislation codifies the common-law rule that a carrier is liable 'for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity'. Secretary of Agriculture v. United States, 350 U.S. 162, 76 S.Ct. 244, 100 L.Ed. 173 (1955). In order to establish a prima facie case the plaintiffs alleged and under the court's ruling properly undertook to prove delivery of the property to the carrier in good condition, its arrival in damaged condition and the amount of the damages. Chesapeake & O. Ry. v. A. F Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659 (1925); Akerly v. Railway Express Agency, supra 96 N.H. at 398, 77 A.2d at 858. Once the shipper establishes a prima facie case, 'the burden of proof is upon the carrier to show both that it was free from negligence and the the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.' Missouri Pac. R. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964). This shift in the burden of proof places upon the carrier not only the burden of going forward with evidence of its own due care but also the risk of nonpersuasion. Super Serv. Motor Freight Co. v. United States, 350 F.2d 541 (6th Cir. 1965); Continental Can Co. v. Eazor Express, Inc., 354 F.2d 222 (2d Cir. 1965).

The nonsuit was properly granted if the plaintiffs failed to produce evidence from which a jury could find that the horses were delivered to the carrier in good condition and arrived in damaged condition. In determining this issue 'the evidence and all reasonable inferences therefrom must be construed most favorably to the plaintiff'. Dubreuil v. Dubreuil, 107 N.H. 519, 229 A.2d 338 (1967); Plume v. Couillard, 104 N.H. 267, 184 A.2d 452 (1962).

Plaintiffs presented evidence from which a jury could find that plaintiffs' five horses were loaded on a truck in Florida with four horses belonging to other owners. There was testimony that the plaintiffs' horses were then in good condition. A groom who traveled with the horses to their destination in Pennsylvania testified to a 'rough' ride from which the horses might have sustained injuries. The fatal defect in the plaintiffs' case is that only by speculation and conjecture could the subsequent condition of the horses be found to have existed at the end of thier transportation.

The groom testified that the horses were stiff upon arrival but that this was usual after a trip. One of plaintiffs' horses had a few scars but no injury or damage complaint is based upon this condition. A trainer, who first observed the horses two or three days after their arrival in Pennsylvania, observed a small lump on the back of one of the horses which he thought might have been caused by the...