Texas and Pacific Railway Company v. George

• Decision Date: 23 April 1971
• Docket Number: No. 17194,17194
• Parties: The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Clovis GEORGE, d/b/a Clovis George Tire Company, Appellee.
• Court: Texas Court of Appeals

Page 659

466 S.W.2d 659

The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. Clovis GEORGE, d/b/a Clovis George Tire Company, Appellee.

No. 17194.

Court of Civil Appeals of Texas,

Fort Worth.

April 23, 1971.

Minor & Knight, and Tom D. Jester, Jr., Denton, for appellant.

Hopkins & Kelsey, and Richard H. Kelsey, Denton, for appellee.

OPINION

MASSEY, Chief Justice.

A judgment against a defendant carrier for a freight loss absent findings for the shipper as to condition of the item at time it was received for shipment may be sustained only in the event questions relating thereto are resolved as a matter of law.

In this case judgment was rendered for the plaintiff shipper, Clovis George, upon the negative or 'No' finding returned to the following special issue:

'Do you find from a preponderance of the evidence, if any, that the television set shipped to Clovis George on November 26th, 1968, was not damaged while under the care and custody of the Texas and Pacific Railway Company?'

A negative finding to such inquiry constitutes a failure by or refusal of the jury to find For the carrier that the television set (which was in broken damaged condition at time it was delivered) had not sustained damage while it was in the possession of the carrier. However, the shipper is availed nothing thereby. Such a finding does not discharge any part of the shipper's burden of proof. See 11 Tex.Jur.2d, p. 172, et seq., 'Carriers', Sec. 403 et seq., under 'Carrier's Liabilities--Injury to Goods'.

Apparent in the brief of the shipper is his misconception of the holdings of Missouri Pacific Railroad Co. v. John B. Hardwicke Co., 380 S.W.2d 706, 708 (San Antonio Tex.Civ.App., 1964, no writ history). Such misconception was the result of inadvertent language (on page 708) reading as follows: 'In Yeckes--Eichenbaum, Inc. v. Texas Mexican Ry. Co., 263 F.2d 791 (Fifth Cir.Ct.) the Court distinguished 'breakage claims' from claims due to the nature and condition of the commodity. Where damage occurs from breakage, the burden is upon the carrier to show that the lading had sustained this damage prior to delivery to the carrier. * * *' We regard the language quoted as an incorrect statement of the law to be applied to the initial carrier where a plaintiff shipper is obliged to discharge a burden of proof of showing the condition and/or value of goods shipped. The remainder of the opinion makes it apparent that the San Antonio Court in no respect used it in such context as predicate for an affirmance of the judgment of the trial court.

Yeckes-Eichenbaum, Inc. v. Texas Mexican Ry. Co., 263 F.2d 791 (U.S.C.A., 5th Cir., 1959) does not support the statement made by the San Antonio Court. In such case, as was likewise true in Hardwicke, the defendant was an intermediate carrier and there was concern with rules applicable in instances where the intermediate carrier desires to escape liability by showing that the damage to goods shipped, discovered at point of delivery, had occurred prior to the time such intermediate carrier was in possession. It was relative to such character of defense that the quoted statement was made in the Hardwicke opinion.

Yeckes-Eichenbaum does deal with the matter of a carrier's endorsement upon a bill of lading or shipping receipt to the effect that as of the time goods or items were received by it for shipment (or trans-shipment) they were in apparent good order and condition. This matter is important to the instant case because the Shipping Order incorporated the carrier's acknowledgment that it had in Dallas, Texas received '1 BXS. TELEVISION SETS (Box Type)' to be delivered to Clovis George Tire Company in Denton, Texas 'in apparent good order, except as noted (contents and condition of contents of packages unknown), * * *.' (Emphasis supplied.)

The admission, so called, on the part of the carrier would be evidentiary in any event and not conclusive in absence of anything in supplement. Furthermore, the decisions of Texas courts follow what we believe to be the majority rule, i.e., that where there is a qualification of the bill of lading or shipping receipt wherein there is affirmative acknowledgment that article or articles received to be shipped were in 'good order' or 'apparent good order'--to the effect that the condition and/or contents of the packages shipped are unknown--the admission merely suffices to establish Prima facie the fact that the external condition of the cases were in such condition, not extending to concealed contents. See 33 A.L.R.2d 867, 872, Anno.: 'Carrier's issuance of bill of lading or shipping receipt, without notation thereon of visible damage or defects in shipment, as creating presumption or prima facie case of good condition when received', and Sec. 3, 'Instruments acknowledging 'good' or 'apparent good' order or condition.' See also 13 C.J.S. Carriers § 254, p. 538, 'Presumptions and Burden of Proof--d. Condition of Goods When Delivered to Carrier'; 10 C.J., p. 371, Sec. 571, and cases under Note 66; Texas & Pac. Ry....