T.I.M.E.-Dc, Inc., v. Southwestern Historical Wax Museum, 5457
Decision Date | 16 October 1975 |
Docket Number | No. 5457,5457 |
Citation | 528 S.W.2d 901 |
Parties | T.I.M.E.--DC, INC., Appellant, v. SOUTHWESTERN HISTORICAL WAX MUSEUM CORPORATION, Appellee. |
Court | Texas Court of Appeals |
Clifford, Sims & Kidd, Lubbock, for appellant.
Melton, Curtis & Shaw, Dallas, for appellee.
This is an action by a consignee, Southwestern Historical Way Museum Corp., against a common motor freight carrier, T.I.M.E.--DC, Inc., for damage to a wax figure of an Indian Chief allegedly caused by the carrier, and for attorneys' fees. Trial to the court without a jury resulted in a judgment that the plaintiff recover $1,000 for damage to the wax figure and $350 for attorneys' fees.
The defendant delivered the wax figure from the manufacturer, in Vancouver, British Columbia, Canada, to the plaintiff's museum at Grand Prairie, Texas. The figure was concealed in a wooden crate. Upon receipt of the crate, the defendant executed a bill of lading in which it is stated that it received the crate 'in apparent good order, except as noted (contents and condition of contents of package unknown).' No exceptions were noted on the bill of lading. When the crate was opened at the museum, the figure was found to be irreparably broken at the neck, a shoulder, and an arm. It cannot be used in this condition.
In three points of error the defendant asserts (1) there is no evidence that the wax figure was not damaged when it was delivered to the defendant and no evidence to support the trial court's express finding that the defendant's driver caused the damage; (2) the plaintiff was not entitled to attorneys' fees because this shipment was an interstate shipment; and (3) there is no evidence to support the award of attorneys' fees.
The plaintiff's executive vice-president, Lee Clisbee, was present when the crate was delivered to the museum, and when it was opened. He testified as follows:
In the typical action by a consignee for in transit damage to freight by a carrier, there is no direct evidence that the carrier caused the...
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