Silver Lining, Inc. v. Shein

• Decision Date: 06 October 1955
• Docket Number: No. A--477,A--477
• Parties: SILVER LINING, Inc., a New York Corporation, Plaintiff-Respondent, v. Benjamin P. SHEIN et al., Individually and doing business as Shein's Exprees, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 206

37 N.J.Super. 206

117 A.2d 182

SILVER LINING, Inc., a New York Corporation, Plaintiff-Respondent, v. Benjamin P. SHEIN et al., Individually and doing business as

Shein's Exprees, Defendants-Appellants.

No. A--477.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 19, 1955.

Decided Oct. 6, 1955.

Nathan N. Schildkraut, Trenton, for defendants-appellants (Kahn & Schildkraut, Trenton, attorneys).

George Winne, Hackensack, for plaintiff-respondent.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiff brought this action to recover for damages to a shipment of piece goods transported by defendants, a common carrier by motor express, from Yardley, Pa. to New York City over the 1952 Labor Day week-end. The primary issue mooted at the trial in the Law Division was the condition of the goods at the point of pick-up by the carrier, there having been a clear preponderance of the proofs that much of it was wet upon delivery to the plaintiff, shipper and consignee. There was a judgment on a jury verdict for the plaintiff at the trial. The main issues on this appeal pertain to the sufficiency of the proofs for submission of plaintiff's case to the jury and to the legal correctness of the charge to the jury in allocating the burden of proof.

The shipment was picked up on August 28, 1952, most of it at Leedom's Warehouse, the remainder at the Eagle Neckband Factory, both at Yardley. Defendants submitted an impressive factual case tending to show that the goods in question had been stored at the warehouse for many months before their sale to plaintiff and that not long before the pick-up date they were wet, muddy and dirty; and that at times during the period of storage the floor of the warehouse had been flooded and that the standing rolls of goods had been water-soaked on one end and then on the other, after reversal of position. Plaintiff's principal reliance was on what are called 'clear' bills of lading for the goods issued by defendants. Each of these is a uniform straight bill of lading as prescribed by the Interstate Commerce Commission and is a receipt for 'the property described below, in apparent good order, except as noted (contents and condition of contents of packages unknown).' No notations as to condition were set forth on these bills. Defendants sought to meet this circumstance by proof that the bills were signed by its superintendent of maintenance, an employee not regularly engaged in handling freight but impressed into duty in an emergency due to an impending strike. He testified he was not familiar with the handling of such matters and that the goods he picked up at the warehouse were muddy, wet and slimy. One other witness for plaintiff, a former employee of the previous owner of the goods, testified that he had taken inventory of the goods and examined about ten percent of it, shortly before this shipment, and that he noticed no wetness of the goods but only some water near the door.

When the truck transporting the goods arrived at plaintiff's place of business in New York on September 2, 1952, the shipment was accepted by plaintiff's representative under protest and he receipted for it with the notation, 'part goods wet received'. He testified the tops of the rolls were 'pretty wet' and that the 'bottom of the truck was wet'. Two salvage experts for plaintiff testified that a substantial proportion of the goods was wet or damp and that much of it was dirty. It is to be noted, however, that plaintiff expressly conceded at the trial that its claim is solely for damage from wetness, not from dirt. There was evidence by plaintiff purporting to show an inordinate amount of rainfall while these goods were in defendants' hands.

I

The first matter requiring our attention is the contention of defendants that they should have had judgment before submission of the case to the jury. We think not. Plaintiff had substantially more than a scintilla of evidence to sustain its burden of establishing that the goods were in worse condition from wetness upon delivery at New York than at pick-up at Yardley. A bill of lading is, in and of itself, 'weighty and Prima facie' evidence of the delivery to the carrier of the goods in the quantity and quality described therein, Joseph Toker Co., Inc., v. Lehigh Valley R. Co., 12 N.J. 608, 612, 97 A.2d 598, 39 A.L.R.2d 318 (1953), and, where the language of the bill of lading is as set forth above, that the goods were in 'apparent good order, so far as their order could be apparent' from external inspection. Sprotte v. Delaware, L. & W.R. Co., 90 N.J.L. 720, 721, 101 A. 518 (E. & A.1917); Goldberg v. New York, N.H. & H.R. Co., 130 Me. 96, 153 A. 812, 813 (Sup.Jud.Ct.1931); L. Frank & Co., Inc., v. Illinois Cent. R. Co., 43 So.2d 88, 91 (La.Ct.App.1949); Mattews-Carr v. Brown Exp., 217 S.W.2d 75, 77 (Tex.Civ.App.1948). Thus, the bills of lading and the other more tenuous proofs of the condition of the goods in Pennsylvania offered by plaintiff were some evidence that when picked up by the carrier the merchandise was not as wet, if at all, as when delivered to plaintiff, and were sufficient to create an issue of fact for the jury.

II

Defendants next complain of the court's charge to the jury concerning the general legal measure of their liability in the following language:

'* * * under our law it is said that a common carrier, * * * is an insurer of goods except in certain cases resulting from acts of God, which are not involved here, or from the acts of the public enemy, which are not involved here, or from some inherent nature of the property, or from some default of the shipper. Those are the exceptions we have in the case of a common carrier, and if there are no exceptions we say that the common carrier is an insurer, which means exactly what the term implies; that is, that he must pay unless he falls within some of those exceptions involved in the case; * * *.'

We agree with defendants' position to the extent that we regard the term 'insurer' as an unfortunate one in addressing present-day insurance-conscious jurors, particularly since the number of exceptions to the rule of carrier's liability and the prerequisite obligation of the shipper to show pick-up by the carrier of goods in better condition than when delivered to the consignee present not inconsiderable barriers between a claim and a right of recovery against a carrier. But we cannot hold that the statement of the rule by the trial judge was not substantially correct in law, particularly in relation to an interstate shipment. 49 U.S.C.A. §§ 20(11), 319; Joseph Toker Co., Inc., v. Lehigh Valley R. Co., supra (12 N.J. at page 611, 97 A.2d 598); and see Commercial Molasses Corp. v. New York T.B. Corp., 314 U.S. 104, 109, 62 S.Ct. 156, 86 L.Ed. 89 (1941). The objection to this portion of the charge will not justify a reversal.

III

We do find, however, that the undertaking of the trial court in the charge to place the burden of proof is materially vulnerable. This had two aspects. In the first, the court instructed the jury that the clear bill of lading raised a presumption that the carrier received the goods 'in good condition' in Pennsylvania and that:

'* * * If that presumption is not rebutted because since no defects were noted we have a clear bill of lading, and that means that there is a presumption that the goods were in good condition when received by the defendant, the plaintiff may recover. To overcome that presumption the burden of proof is upon the defendant to come forward with evidence which will dispel the benefit of the presumption by a preponderance of the evidence, that the goods when they were received by him, in fact, were in bad condition. * * *' Examination of the authorities indicates that it is not always clear that the courts regard the inferences as to quantity or condition derivable from a bill of lading as rising to the status of a presumption, as distinguished from that of an evidential admission by the carrier. "In so far as bills of lading acknowledge that the carrier has received the goods, or that he has received the quantity named, they are like all other receipts and may be shown to have been given by mistake and not to speak the truth." New York & B. Transp. Line v. Lewis Baer & Co., 118 Md. 73, 84 A. 251, 256 (Ct.App.1912); and see Reuther's Seafood Co., Inc., v. Railway Express Agency, Inc., 71 So.2d 419, 421 (La.Ct.App.1954); Matthews-Carr v. Brown Exp., supra (217 S.W.2d at page 77); but see Goldberg v. New York, N.H. & H.R. Co., supra, stating that the admission creates a presumption (153 A. at page 813), L. Frank & Co., Inc., v. Illinois Cent. R. Co., supra, referring to an 'unadulterated presumption' (43 So.2d at page 91), and Minneapolis Fire & Marine Ins. Co. v. Baltimore & Ohio R. Co., 237 Minn. 111, 53 N.W.2d 828, 33 A.L.R.2d 860 (Sup.Ct.1952). Our own cases, as is the general tenor, refer to a bill of lading as Prima facie evidence of the condition and quantity of the goods as delivered to the carrier. Joseph Toker Co., Inc., v. Lehigh Valley R. Co., supra (12 N.J. at page 612, 97 A.2d 598); Sprotte v. Delaware, L. & W.R. Co., supra (90 N.J.L. at page 720, 101 A. 518); Jefferson Macaroni Co. v. Pennsylvania R. Co., 154 A. 188, 9 N.J.Misc. 405, 406 (Sup.Ct.1931), affirmed 109 N.J.L. 266, 160 A. 635 (E. & A. 1932); and see Gulf, C. & S.F. Ry. Co. v. Galbraith, 39 S.W.2d 91, 93 (Tex.Civ.App.1931); Evergreen Broom Mfg. Co. v. Pennsylvania R. Co., 378 Pa. 60, 105 A.2d 88, 90 (Sup.Ct.1954); cf. Louisiana Southern Ry. Co. v. Anderson, Clayton & Co., 191 F.2d 784 (5 Cir., 1951). Wigmore points out that the term 'prima facie' is sometimes used as equivalent to the notion of a presumption, but that it is also understandable in the sense either of the condition of all of the proofs on one side as sufficiently weighty, apart from the effect of presumptions, to require the opponent to...