Texas & P. Ry. Co. v. Empacadora De Ciudad Juarez, S. A.

• Decision Date: 06 November 1957
• Docket Number: No. 5242,5242
• Citation: 309 S.W.2d 926
• Parties: The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. EMPACADORA DE CIUDAD JUAREZ, S. A., Appellee.
• Court: Texas Court of Appeals

Page 926

309 S.W.2d 926

The TEXAS AND PACIFIC RAILWAY COMPANY, Appellant, v. EMPACADORA DE CIUDAD JUAREZ, S. A., Appellee.

No. 5242.

Court of Civil Appeals of Texas, El Paso.

Nov. 6, 1957.

Rehearing Denied Jan. 15, 1958.

Second Rehearing Denied Feb. 19, 1958.

J. F. Hulse, Scott, Hulse, Marshall & Feuille, El Paso, for appellant.

Andress, Lipscomb, Peticolas & Fisk, El Paso, for appellee.

WILLIAMS, Justice.

This suit was brought by plaintiff below, appellee herein, against defendant below, appellant herein, for damages arising out of the spoiling of a shipment of so-called cured beef by plaintiff from Juarez, Mexico, to Jamaica, New York. Plaintiff is a meat packing corporation of Juarez, and had shipped many such cars of meat over defendant railroad, and this is the first car out of which arose any trouble. The undisputed evidence shows that plaintiff shipped this car of beef on July 28-29, 1952, and that defendant railroad received it in El Paso about four o'clock in the afternoon on July 29th, and undertook to carry it to Jamaica, New York. It was stipulated that it was of no value when it arrived in New York on August 5th. There were some 48 issues submitted to the jury, all of which were found in favor of plaintiff-appellee, many of which, in our opinion, were not supported by any evidence, or were contrary to the overwhelming weight of the evidence, as will be discussed later. There are 43 points of appeal and the record is rather voluminous, so we will attempt to discuss the testimony relative to the respective points as we progress. All of the issues were supported by the pleadings, so we will usually refer to the issues rather than to the pleadings.

The jury found that the defendant railroad furnished the car in which this meat was carried. Appellant railroad strongly assails this findings, and we agree with appellant. There was introduced in evidence a letter from Mr. Villalobos, manager of plaintiff-appellee, ordering two cars to be spotted on July 21st. Mr. Villalobos testified that the cars were spotted on this date by said railroad, and that the Mexican-Northwestern Railroad furnished the car in which this meat was shipped. We think this is an admission on the part of the plaintiff and is binding on it: Bergeron v. City of Port Arthur, Tex.Civ.App. Waco 1954, 264 S.W.2d 769 (n. r. e.)

The only evidence to the contrary came from Mr. Joseph H. Brown, plaintiff's broker, who testified that he telephoned defendant-railroad to furnish this car; but, on cross-examination, Mr. Brown admitted that his call very likely was after the car was loaded, and was to ask the railroad to expedite its movement. He further categorically testified that Mr. Villalobos ordered the car. We hold, as a matter of law, that the car was furnished by the Mexican-Northwestern Railroad, and not by defendant railroad.

However, we agree with plaintiff's contention that the defendant railway was the initial-through carrier. The evidence in this regard shows that the Mexican-Northwestern Railroad received the car from the shipper, transported it to El Paso, and with the assistance of the switching concern in El Paso, placed it on the defendant's track about ten o'clock in the morning of July 29th. About four o'clock that afternoon, Dr. Hamilton, a United States government inspector for the Bureau of Animal Industry, and Customs agents, together with broker Brown, inspected the car. Dr. Hamilton found the meat in satisfactory condition to pass his inspection, although we must say that his inspection was very skimpy. The car was thereafter turned over to the defendant railroad, and it issued its through bill of lading agreeing to carry the cargo from El Paso to Jamaica, New York. We therefore hold that the defendant railroad became the initial-through carrier, although the meat was being shipped by and from a foreign origin: 8 Tex.Jur. Sec. 725, p. 1011 et seq.; Houston, E. & W. Tex. Ry. Co. v. Houston Packing Co., Tex.Civ.App. Galveston 1919, 221 S.W. 316 (ref.).

The plaintiff alleged that, (1) it furnished defendant railroad this meat in good condition, and that it arrived in New York in bad condition, and it contended that, under the Carmack Amendment, 49 U.S.C.A. Sec. 20(11), and under the common law, the prevailing presumption made the defendant liable for the spoilage of this meat. The authorities are uniform in holding that, under these circumstances, a presumption of negligence prevails and places liability on the railroad. (2) In the alternative, plaintiff alleged specific acts of negligence on the part of the railroad, which were, in the main, (a) that the car was defective in that one of the doors was loose and ill fitting; and, (b) that the car in question was defective because the canvas and stiles around one of the doors was defective and rotten, and that the defectiveness and rotten condition was old. We will discuss these two propositions in order.

(1)

The jury found that the meat was furnished to the defendant railroad in good condition, and it was stipulated that it was of no value when it arrived at its destination in New York.

For support of the proposition that the meat was delivered to the defendant in good condition, plaintiff relies very largely on the testimony of Dr. Hamilton, the B. A. I. inspector. Dr. Hamilton testified that he inspected the car in El Paso about four o'clock in the afternoon of July 29th, and that the meat looked all right to him, and he passed it for shipment. He testified that he looked at only one carton of the 400 cartons, and that it looked all right that he looked for leakage on the floor and found none, and that, had the meat been spoiled, he thought that he could have detected that condition by his sense of smell. To establish that the meat was not in good condition, the railroad placed no witnesses on the stand, but relied on cross-examination of the plaintiff's witnesses, and it is certainly well established by them that it handled the meat before shipment in a very imprudent and unusual manner. They admitted that they handled this shipment differently from any of the other two or three or four hundred cars that they had shipped. They admitted that the temperature of a car should be lowered to 20 or 22 degrees before loading, and that it should be iced for at least two days before loading began. In this instance the temperature of the car was 36 when they began to load, and had been iced, at the most, for some four or five hours. When they finished loading, the temperature of the car was 62 degrees, and some two and one-half hours later it was 48 degrees. All of their witnesses testified that meat should be kept at a temperature of 32 or 33 degrees, and certainly never higher than 34 degrees. They admitted that some 25 or 30 per cent salt content should be added to the ice in the cars, whereas they added only 15 per cent to this car. In the face of this testimony and other of a similar nature, the jury found that the plaintiff was not negligent in any of these manners in which it handled the meat, and that the meat was in good condition when delivered for shipment. The plaintiff's witnesses also testified, on cross-examination, that spoilage once begun by reason of the temperature being too high could not be detected by examination soon thereafter, but that the bacteria in the meat would start to working when raised to too high a temperature, and some said that they would not stop working when the temperature was brought to a proper stage. We therefore think the testimony as to the meat being in good condition when delivered is certainly very unsatisfactory. Too much weight cannot be given to Dr. Hamilton's testimony, as plaintiff's expert testified, as mentioned above, that the spoilage may have set in, and that same would not be detectible by a visual inspection such as Dr. Hamilton gave it. Judge Norvell discusses, in Thompson v. Bob Tankersley Produce Co., Tex.Civ.App. San Antonio 1956, 289 S.W.2d 840, 841, the difference between 'good condition' and 'apparent good order.' In this connection he says:

'On the other hand, it seems well established that receipt in apparent good order by the carrier, coupled with the inability to ascertain hidden defects by visual inspection, does not preclude a holding, as a matter of law, that a commodity was not in good condition when received by the carrier.'

The cases cited by Judge Norvell are likewise very interesting. See also, St. Louis & Southwestern Ry. Co. v. Grant, Tex.Civ.App. San Antonio 1915, 174 S.W. 714. The other evidence on the subject is to the same effect, to-wit, that the meat 'appeared' to be in good condition. In view of the evidence in this case, especially the admission of plaintiff's officials that they improperly and imprudently handled this meat before and while loading, we hold that there was insufficient evidence for the jury to find that the meat was in good condition when delivered to the carrier in El Paso. This rules out the presumption and brings us to the allegations of specific negligence.

(2)

(a) The jury found that the door of the car was 'loose-fitting.' Absolutely the only testimony on this subject came from Mr. Zinn, who was manager of the consignee. He said that he was present when the seal of the car was broken in New York, and that the doors appeared to be in good condition to him, but that one of them did not appear to be 'tightly closed.' On the strength of this meager testimony, the jury not only found that the door was 'loose-fitting' in New York, but found that it was 'loose-fitting' on July 21st when it was furnished to the plaintiff shipper in Mexico, and found that it was 'loose-fitting' when it left El Paso. The car was not loaded in Mexico until July 28th and, or course, the door was standing wide open when it was being loaded. Certainly the jury's findings that the door was 'loose-fitting' in Juarez and in El Paso are absurd. We say this because, as mentioned above,...