Taylor v. National Trailer Convoy, Inc.

• Decision Date: 10 November 1970
• Docket Number: No. 101-70.,101-70.
• Citation: 433 F.2d 569
• Parties: Earl E. TAYLOR and Ruth E. Taylor, his wife, Appellants, v. NATIONAL TRAILER CONVOY, INC., a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

433 F.2d 569 (1970)

Earl E. TAYLOR and Ruth E. Taylor, his wife, Appellants, v. NATIONAL TRAILER CONVOY, INC., a corporation, Appellee.

No. 101-70.

United States Court of Appeals, Tenth Circuit.

November 10, 1970.

Carloss Wadlington, Ada, Okl., for appellants.

Richard D. Wagner, Tulsa, Okl. (Alfred B. Knight, Tulsa, Okl., on the brief) for appellee.

Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

This diversity suit was instituted in the Eastern District of Oklahoma to recover damages for the alleged conversion of a mobile home, for the withholding of its contents, and for damage done to the contents. The case was tried to a jury which returned a verdict for the defendant.

The undisputed facts outline the relevant circumstances. The appellant purchased the house trailer new on August 28, 1967, for $5955.06. About June 1, 1968, appellants contacted appellee, a common carrier engaged in moving mobile homes, to transport their trailer from Daisy, Oklahoma, to a place near Gore, Oklahoma. On June 3, employees of appellee, along with a friend of appellants who drove the "pilot" truck for the move, prepared the trailer and began the trek to Gore.

During the afternoon of June 3, the right rear tire on the trailer suffered a blowout near Eufaula, Oklahoma. Because it was late, and due to the absence of a replacement tire, the trailer was left at Eufaula overnight. The next day, a different wheel and tire were mounted on the mobile home. The journey continued until the caravan approached Webber Falls, Oklahoma, where the right rear rim and tire came off the axle. When the wheel came off, the adjacent portions of the trailer were extensively damaged. Temporary repairs were made and the house trailer was transported on to its destination.

After inspecting the damages incurred, the appellants concluded that the repair bill would exceed the moving costs and thereby withheld the transportation fee and refused to sign the bill of lading. The appellee then had the trailer towed to Ft. Smith, Arkansas, for storage. The trailer was kept at Ft. Smith by appellee until March, 1969, when it was turned over to the original conditional vendor. Before repossession was effected, the appellants had defaulted on their payments, leaving about $4,000 due the vendor.

The first error urged is that the trial court failed to properly instruct the jury as to the defendant's burden of proof. In Oklahoma, "it is well established both under * * * statute and the common law that a common carrier of freight is a qualified insurer of all goods delivered to it for transportation and is liable for all losses or injuries thereto except such as arise from an act of God or of the public enemy, or the inherent nature or quality of the goods or the act or fault of the owner or shipper. 13 O.S. § 131. * * *" Advance Air Conditioning Company v. Cain's Truck Lines, 198 Okl. 735, 175 P.2d 338, 340 (1946). If loss or injury to the goods occurs while in the possession of the common carrier, a prima facie case is made against it and if the carrier relies on exceptions to such rule as a defense, the burden is on it to establish the exception.¹

Ordinarily we would have no difficulty in reaching the merits of this argument. But here, as appellants admit, the alleged defect was not objected to at the trial stage. In accord with Rule 51, F.R.Civ.P., 28 U.S.C., this court has held on numerous occasions that any objections to instructions must be made of record after the court has given its instructions to the jury and before the jury retires to deliberate. Chiodo v. General Waterworks Corporation, 380 F.2d 860 (10th Cir. 1967) and cases cited therein. Only if due process rights are involved, Gomes v. Williams, 420 F. 2d 1364 (10th Cir. 1970), or if the error is otherwise plain and fundamental, Allen v. Nelson Dodd Produce Company, 207 F.2d 296 (10th Cir. 1953), will we review errors first raised on appeal.

Recognizing that instructions on burden of proof are always crucial to the outcome of a trial, we have summarily lifted excerpts from the instructions which we believe negate the claimed deficiency. The court said:

"In this instance, the plaintiff was entitled, under the law generally, to payment of the freight before delivering, before he is required to deliver the house trailer. If he is not paid those freight charges, he is entitled to keep the trailer for that reason, and as a protection of his lien for freight charges.

"But this is superseded if, in the course of transporting the house trailer * * * the trailer is damaged by the carrier and this damage obviously exceeds the freight charges * * *. In other words, if the damage is the fault of the carrier, and that damage exceeds the freight charge, then, under the law the carrier has no right to refuse delivery until payment of the freight charges.

"So, that puts the defendant in this case of having to be right in order to be justified in refusing to turn over this trailer at Gore to the plaintiffs. If you find, then, that the condition in which the trailer arrived at Gore was attributable to a defect in the trailer — and the defect that has been

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