Tellez v. Canton R. Co.

• Decision Date: 06 March 1957
• Docket Number: No. 83,83
• Citation: 212 Md. 423,129 A.2d 809
• Court: Maryland Court of Appeals
• Parties: Alfredo TELLEZ, etc. v. CANTON RAILROAD CO., The Rukert Terminals Corp., and Robert C. Herd & Co., Inc.

Page 423

212 Md. 423

129 A.2d 809

Alfredo TELLEZ, etc. v. CANTON RAILROAD CO., The Rukert Terminals Corp., and Robert C. Herd & Co., Inc.

No. 83.

Court of Appeals of Maryland.

March 6, 1957.

Benjamin Lipsitz, Baltimore, for appellant.

Clayton W. Daneker, Baltimore (Constable, Alexander & Daneker, Baltimore, on the brief), for Robert C. Herd & Co., Inc.

David C. Green, Baltimore (John Henry Lewin and Venable, Baetjer & Howard, Baltimore, on the brief), for Canton R. Co.

Harrison L. Winter, Baltimore, for Rukert Terminals Corp.

Before COLLINS, HENDERSON and PRESCOTT, JJ., and EMORY H. NILES, Special Judge.

NILES, Special Judge.

The question here presented is whether under the pleadings and affidavits the defendants are entitled to summary judgment on the ground that 'there is no genuine dispute as to any material fact.' Summary Judgment Rule 1a; Maryland Rule 610, subd. a.

The plaintiff, an importer, claims that 400 bales of broom corn marked 'A. T. & Co.' and having a value of about $7,800, which were brought to Baltimore from Italy by sea, were lost or misplaced by the stevedore who unloaded them, by the railroad which received them for carriage to a warehouse, or by the warehouseman which stored them, or by all three. He alleges that the warehouseman delivered to him 400 bales of inferior quality which were either unmarked, or which bore marks other than 'A. T. & Co.'. He has sued the stevedore, Robert C. Herd & Co., Inc.; the receiving railroad, Canton Railroad Company; and the warehouseman, The Rukert Terminals Co., which will be referred to as 'Herd', 'Canton', and 'Rukert', respectively.

The defendants contend that no bales marked 'A. T. & Co.' were on the ship, discharged from the ship, or received by any of them. They allege that they delivered to the plaintiff exactly what they received, namely, 400 bales, either unmarked or bearing other marks; that their affidavits prove this fact; that there are no counter affidavits to disprove it; that there is no dispute as to any material fact; and that they are entitled to summary judgment.

The problem is not whether the evidence contained in the affidavits of the defendants is weightier than that of the plaintiff. It is whether, considering the papers in the case, there is any genuine dispute as to a material fact which should be submitted to a trier of fact.

Judge Byrnes, in a memorandum opinion, held that the affidavits of the defendants conclusively showed that none of the broom corn involved was marked 'A. T. & Co.'; that no attempt was made by the plaintiff to offer affidavits from the shipper of the broom corn in Italy, or from the ocean carrier to support the contention that the bales of broom corn were marked 'A. T. & Co.'; that there was no dispute of fact; and therefore that defendants were entitled to summary judgment.

The case thus turns on the question of whether there is evidence in the case sufficient to raise a material question of fact that 400 bales marked 'A. T. & Co.' were received by the defendants or any of them. The only data on which to base a conclusion that the bales were marked 'A. T. & Co.' consists of the ocean bill of lading, he Canton bill of lading, and perhaps a custom inspector's report. The rule requires a showing of admissible evidence by the affidavits; and the question ultimately, therefore, is whether these documents containing such evidence are admissible against the defendants.

From the pleadings, affidavits, and the statements at the argument by respective counsel, the facts may be stated as follows:

The plaintiff purchased 400 bales of Florentine broom corn from S. Fernandez, of Florence, Italy; these bales were shipped on board the S.S. Knut Bakke at Leghorn on November 16, 1951. A copy of a bill of lading signed by the master describes the bales as being marked 'A. T. & Co.'. On the same vessel there were shipped 3,001 other bales of broom corn purchased by C. H. Demarest & Co. of New York. The shipping documents indicate that these bales were marked 'C. H. D.' or 'H. A.'.

The ship arrived in Baltimore, and on December 15, 1951, was discharged at Pier 7, Canton, by the defendant, Herd, as stevedore. It does not clearly appear whether the 400 bales of Tellez were separated from the 3,001 bales of Demarest in the stowage of the ship. Hard's men knew that there was a shipment of 400 bales marked 'A. T. & Co.' expected, and two freight cars, ACL 23201 and IC 39048 had been 'spotted', or placed on the pier, for their reception. When Herd's men found no bales marked 'A. T. & Co.' turned out from the ship, the last 400 bales were placed in those cars. The vessel received a receipt from Canton for 3,401 bales, the receipt describing the marks as 'Various'. Canton thereupon issued a bill of lading to the plaintiff, Tellez & Co. dated December 15, 1951, for the carriage of 400 bales 'marked A. T. & Co.' to 'Rukert Terminals, Canton, Baltimore via Pennsylvania Railroad'. This bill of lading, which had been made up by plaintiff's custom house broker before the ship arrived, was signed by Canton.

The Pennsylvania Railroad delivered these cars to Rukert and presented freight bills to Rukert dated December 15, 1951. The freight bills identified the two cars, but bore no notation as to marks upon the goods, which were described simply as '400 bales of Florentine broom corn stalks'. Rukert gave no receipt to either Canton or to the Pennsylvania Railroad.

When the cars were unloaded by Rukert its men found no bales marked 'A. T. & Co.'

There was no shortage in the number of bales. 3,001 were received by Rukert for Demarest; and 400 were received by Rukert for Tellez. But according to the affidavits filed by all or various parties, no bale was found with the mark 'A. T. & Co.' nor was any bale marked 'A. T. & Co.' received by any person to whom any of the 3,401 bales were sold by Tellez or by Demarest.

The plaintiff now sues Herd, Canton and Rukert, charging that they, or one of them, misplaced, confused or lost the 400 bales marked 'A. T. & Co.' and claims their value as damages. No claim is made against the steamship company or the Pennsylvania Railroad.

To combat the affidavits of the defendants, the plaintiff has filed, among other papers, copies of:

1. The ocean bill of lading made out at Leghorn, describing 400 bales as marked 'A. T. & Co.',

2. The receipt given by Canton to Herd, in which the marks are described as 'Various',

3. The Canton bill of lading describing the marks on 400 bales received from Tellez as 'A. T. & Co.'.

The decision in the case thus depends upon whether the papers above mentioned contain admissible evidence to support the allegation that any of the defendants received bales marked 'A. T. & Co.'.

Summary Judgment Rule 2 (G.R.P.P., Part Two, IV, 2; now Maryland Rule 610, subd. b.) provides:

'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *.'

It should be noted with some emphasis that the affidavits as to surrounding facts filed by the plaintiff do not comply with the above Rule. Most of them are not made on personal knowledge of the affiant, and they contain statements of fact thus not admissible in evidence. If the plaintiff's case rested on them alone, it would be dismissed. See Frush v. Brooks, 204 Md. 315, 104 A.2d 624; Nardo v. Favazza, 206 Md. 122, 110 A.2d 676; Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232.

Apparently however no contention was made before Judge Byrnes that copies of the two bills of lading and of the receipt were not true copies of the original papers issued, and no objection was made to the method of submission. They were considered by Judge Byrnes in deciding the case, and we therefore consider them here on the basis expressed by Judge Markell in Dowell v. O'Brien, 199 Md. 299, at page 301, 86 A.2d 462:

'Summary judgment is not a formal, technical proceeding. We think the affidavit should not be ignored.'

See also Fletcher v. Flournoy, supra, 198 Md. at page 62, 81 A.2d at page 236; and the opinion of Judge Warnken in Hawtof v. Hazel, Daily Record, February 29, 1956.

The defendants contend that they are entitled to summary judgment unless the plaintiff by his affidavits has demonstrated that every one of his allegations is true. This is an overstatement of the case. Affidavits supporting or opposing summary judgment need not dispose of all issues raised by the pleadings.

In Molesworth v. Schmidt, 196 Md. 15, 20, 75 A.2d 100, 102, this Court quoted from United States to Use of General Electric Co. v. Schofield Co., C.C., 182 F. 240, at page 245, speaking of an answer under oath to a motion for summary judgment, saying:

'It need not set up a defendant's whole case; it need do no more than show one sufficient reason why summary judgment should not be entered.'

The function of the summary judgment procedure is not to try the case or to decide issues of fact. It is merely to determine whether there is an issue of fact to be tried, and if there is none, to cause judgment to be rendered accordingly.

In Frush v. Brooks, supra, 204 Md. at page 321, 104 A.2d at page 626, this Court quoted the reporter's notes to the Summary Judgment Rule, with reference to proceedings for summary judgment 'The court does not, of course attempt to decide any issue of fact or of credibility, but only whether such issues exist. If the affidavits or other evidence show a genuine conflict, the court must deny the motion. Thus the proposed procedure is not a substitute for a trial, * * *.'

If there is any issue of fact undisposed of and remaining to be determined by the trier of the facts upon the weight of the evidence, summary judgment can not be granted.

With respect to Canton, we think that the issuance by it of a bill of lading acknowledging the receipt of 400 bales 'mark...