Sunset Motor Lines v. Lu-Tex Packing Company

• Decision Date: 13 June 1958
• Docket Number: No. 17131.,17131.
• Citation: 256 F.2d 495
• Parties: SUNSET MOTOR LINES, Inc., Appellant, v. LU-TEX PACKING COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 495 (1958)

SUNSET MOTOR LINES, Inc., Appellant, v. LU-TEX PACKING COMPANY, Inc., Appellee.

No. 17131.

United States Court of Appeals Fifth Circuit.

June 13, 1958.

William I. Marschall, Jr., San Angelo, Tex., Ralph W. Currie, Dallas, Tex., Hardeman, Smith & Foy, Runge, Marschall & Runge, San Angelo, Tex., Currie, Kohen & Freeman, Dallas, Tex., of counsel, for appellant.

James P. Hart, Jack, Sparks, Austin, Tex., Tom G. Oliver, Jr., San Marcos, Tex., Hart, Brown, Sparks & Erwin, Austin, Tex., of counsel, for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

In this appeal by the initial truck carrier held liable after a non-jury trial for the total loss of a shipment of fresh beef, three questions are presented: (1) was there adequate evidence of the market value of the goods as shipped in good condition and as delivered in bad condition; (2) was it error or prejudicially harmful for the Court to have excluded an original Department of Agriculture form specifying the amount of meat condemned as unfit; and (3) on liability, did the evidence overcome the presumption of carrier's negligence? Only the first has much substance.

Question (1) has two facets: the nature, kind, quality and value (at destination) of the goods as actually shipped had they arrived in good condition; and the market value, if any, of the goods in their damaged condition on delivery. As proof of this is normally a burden of the shipper, the Carrier¹ urges that if the evidence were insufficient on either phase, judgment cannot stand. On the first facet, the contention, more specifically, is that all the Shipper did was prove the destination market value of the nature, kind, value and condition as ordered, and not, as the rule requires, that actually shipped. On the second facet, the contention, more specifically, is that all the Shipper proved was the price received on the salvage disposition of the damaged goods and not, as required, the market value of bad meat in Chicago. There is some literalism to support this view regarding both the shipment condition² and value³ in bad order at destination. But, as is so frequent, the Judge, as would a jury, was entitled to, and presumably did, view the whole picture with a purpose of searching out, finding and acting on reality. The Court's findings which come here with the insulation of Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A. showed that reality was something quite different.

The argument is made that since the confirmation of the oral purchase order from Consignee to Shipper stated that it was for two loads of "C and C cows 350/up, one rib on hind" and the shipping manifest revealed that eight of these carcasses were 300/350 pounds, there was no showing that what was ordered had been shipped, or that if it was the same kind, that it was in good condition. However, the intrinsic quality of the shipment was established by uncontradicted testimony of the United States Department of Agriculture Veterinarian Inspection at Shipper's plant. He attested to its quality and that it was in fit condition for shipment and human consumption. The Shipper's manager established that it complied with the order and Barnes, for the Consignee, note 2, supra, both expressly and circumstantially affirmed that the beef complied with the purchase order. Especially convincing was the latter. The shipping weight lists covering both of the two truckloads of beef reflect that one load contained ten and the other eight of the carcasses weighing 300/350 pounds. Notwithstanding this, the consignee accepted the first truckload without objection or complaint of any kind and Barnes categorically affirmed that that shipment was of the kind, type, quality and condition as ordered. Moreover, in the second truckload which arrived in damaged condition, approximately 2,000 pounds was from that very first shipment since the Carrier had taken it off the first truck because of overweight and had sent it back on the second trailer to be carried along with the second truckload.

These composite facts were certainly sufficient to warrant the Trial Court's drawing the inference that what had been shipped complied with the order. With that as a starting point the reference, in the questions seeking market value in good condition, see note 2, supra, to the commodity described in terms of ordered was but a convenient shorthand way of submitting the classic inquiry on the destination value had it arrived in good condition. Thus, there was no purpose either to offer or receive the evidence of this character as a basis for recovery of the contract price as distinguished from market value and which, absent special notice, would not be recoverable. 9 Am.Jur., Carriers, § 783; Fort Worth & Denver Ry. Co. v. United States, 5 Cir., 242 F.2d 702.

On the second facet, the record is equally sufficient. Actually, the Carrier's argument expands somewhat beyond the precise limits of its contention that market value of the defective beef was not established. For it begins with the usual rule that where goods are not totally destroyed, a shipper is ordinarily bound to accept the goods in damaged condition looking to the Carrier for the difference in value and may not reject them altogether. Strickland Transportation Co. v. American Distributing Co., 5 Cir., 198 F.2d 546; Robinson v. Georgia Savings Bank & Trust Co., 5 Cir., 106 F.2d 944; 9 Am.Jur., Carriers, § 560. From this position it moves forward to the next one which likewise has general application that the amount recoverable is the difference between the destination market value in good condition and in bad condition. Assuming that the Trial Court's finding of a destination market value of good condition has been satisfactorily established, as we have held it was, the Carrier urges that the second part of the equation — destination market value in damaged condition, has not been established. To this it adds a third rule of general acceptance that the mere price received on the sale of damaged goods is not proof of the requisite destination market value.⁴

But these are all rules of reason. They give way in the face of reason. Abundant reason is found in this record. When the second truckload arrived in Chicago, Barnes, for the Consignee, was present when the trailer was opened. What he and others found was described by the Court: "The meat had a bad odor and was in a slimy condition, and the tendered shipment was properly refused by Consignee because of its deteriorated condition." This precipitated extended telephone and telegraphic communications between Strickland's Chicago representative and the Shipper, between Shipper and representatives of Strickland and Sunset in Texas. After first demanding that Shipper give Carrier instructions on disposition of the goods then being held by it after rejection by Consignee, Strickland's representative in Texas, the terminal manager who had already handled the complaints the day after the second trailer had been loaded, advised Shipper that the meat would be taken care of properly, and that if necessary, Strickland would place the meat in cold storage. At about the same time, the terminal manager at the home base of Sunset, the originating Carrier, after investigating the loss...