Thompson v. A. J. Tebbe & Sons Co.
| Decision Date | 13 June 1951 |
| Docket Number | No. 4797,4797 |
| Parties | THOMPSON v. A. J. TEBBE & SONS CO. |
| Court | Texas Court of Appeals |
Kleberg, Mobley, Lockett & Weil, Edmond J. Ford, Jr., Corpus Christi, for appellant.
Butler & Williams, James Williams, Robstown, for appellee.
This is an appeal from a judgment of the District Court of Nueces County, 28th Judicial District.
In a trial to the court without a jury appellee as plaintiff recovered a judgment against appellant as defendant for $862.79 with interest from date at 6% per annum as damages to two carloads of onions shipped by plaintiff from Cotulla, Texas, to St. Louis, Mo., and diverted to Chicago, Ill., and there sold for plaintiff by La Manita Bros. Arrigo Company, wholesale dealers and jobbers of fruits and vegetables.
The petition is in two counts. Count I releates to a shipment in car M.D.T. 6301 on may 17, 1946, and Count II to a shipment in car number A.R.T. 17861 made on May 21, 1946. It was alleged that the onions shipped in car 6301 were delivered to defendant on May 17, 1946 in a good and marketable condition and arrived in Chicago for the market of May 28, 1946 in a bruised and decayed condition showing evidence of rough handling upon arrival; that had the onions been properly carried and promptly delivered they would have been of the fair cash market value of $1,716.50, but due to the delay and rough handling by defendant they were of the market value of only $1,147.25, to plaintiff's damage $569.25; that the onions shipped in car 17861 were delivered to defendant on May 21, 1946 in a good and marketable condition and arrived in Chicago for the market of May 28, 1946, and upon arrival were in a decayed and bruised condition showing evidence of rough handling; that had the onions been properly carried and promptly delivered they would have been of the fair cash market value of $1,785.00 but due to the delay and rough handling they were of the market value of only $1,337.50, to plaintiff's damage $447.50. Defendants answered by a general denial.
The court filed elaborate findings of fact and conclusions of law-twelve original fact findings on Court I and the same number on Count, II, and three conclusions on each of Counts I and II. At the request of defendant he also granted seven additional fact findings on Count I and eight additional fact findings on Count II, and two additional conclusions on each count.
Appellant has presented 29 points on which he relies for a reversal of the judgment relating to Count I, and 18 points relating to Count II. We shall not attempt to state these points in detail. In general they attack the court's findings because there is no evidence, or insufficient evidence, to support them, and complain of the court's failure to make requested findings asserted to be shown by uncontroverted evidence. We shall only refer to the findings deemed essential to a proper disposition of this appeal.
All appellant's points are summarized under four groups: (1) There is no evidence and insufficient evidence that the condition of the onions at origin when loaded was good or sound; (2) no showing of the fair market value of the onions at destination had they been transported with reasonable care, diligence and dispatch; (3) no showing of the fair market value of the onions on the date they actually arrived in the condition they actually arrived; and (4) no evidence of negligence on the part of the carriers causing the damage found on arrival. We shall first discuss (3) above.
The court found (11) that the actual fair cash market value of the onions in car M.D.T. 6301 in their decayed condition upon arrival in Chicago was $1,147.25. He also found (10) that had this car been properly transported these onions would have been of the reasonable fair cash market value of $1,716.50 upon arrival. He found that the actual fair cash market value of the onions in car A.R.T. 17861 in their decayed condition upon arrival in Chicago was $1,337.50; (11) also that had this car been properly transported and delivered these onions would have been of the reasonable fair cash market value of $1,453.00 upon arrival. He concluded that plaintiff was damaged as to the onions shipped in car M.D.T. 6301 in the sum of $569.25, and as to those shipped in car A.R.T. 17861 in the sum of $115.50. An additional conclusion is that the damages are measured by the difference in value of the onions at the time they should have arrived if transported with reasonable care, diligence and dispatch, and their value in the condition and on the dates on which they actually arrived.
The additional conclusion unquestionably states a correct abstract proposition of law, under the Interstate Commerce Act governing interstate shipments such as these: Sec. 20(11), 49 U.S.C.A., which provides that the carrier shall be liable to the holder of the bill of lading 'for any loss, damage, or injury to such property', and 'for the full actual loss, damage, or injury to such property'. Texas & N. O. R. Co., v. Searcy, Tex.Civ.App., 220 S.W.2d 366 (). It is at once apparent from the findings that the value which the court applied is the market value. Unless the findings as to market value are supported by the evidence the judgment is not supported by the findings since there are no findings as to any value other than market value.
Plaintiff introduced two inspection reports of the condition of the onions in car M.D.T. 6301 at its destination in Chicago. One is dated May 27, 1946, at 3:35 P.M., and was made by La Mantia Bros., Arrigo Company, which handled the onions for plaintiff. In this report the condition of the load and the grade and quality of the onions is thus described:
The other report, or certificate, is dated May 28, 1946, at 11:55 A.M. and was made by an inspector of the U. S. Department of Agriculture. In this certificate the onions inspected and their condition is thus described:
'Products inspected and distinguishing marks: Crystal wax Yellow Bermuda and Yellow Babosa type Onions in separate paper-net sacks branded 'Texas Onions Diamond T brand, A. J. Tebbe & Sons Co., Cotulla, Texas'. Crystal Wax type in 25-1b sacks, others in 50-1b sacks. Manifested as 510 sacks.
'Condition of load and containers: Through lengthwise and crosswise load, 5 to 8 layers, 2 to 8 rows. Many 25-lb sacks modly and show small to large wet spots.
'Temperature of product: Not taken.
'Condition: decay. Bacterial Soft Rot and Black Mold Rot. 'Yellow Babosa' lot in most sacks 3 to 13% decay, in some none, average approximately 5% Bacterial Soft Rot. Decay in all lots in various stages, mostly advanced, remainder of stock generally firm, mostly dry and well cured, some damp and fairly well cured.
'Remarks: Inspection and certificate restricted to product in upper 3 years, and to condition only at applicant's request'.
Plaintiff also introduced similar reports showing the condition of the onions in car A.R.T. 17861 at destination. La Mantia Bros. report on this car is dated May 28, 1946, at 7:15 A.M. and the condition and the quality of the onions therein described:
'Condition of Load Okay
'Quality Fairly good and fair weak condition
'Pack Good
'Sizing Irregular size, 2 1/2 to 4 many bags 3 to 4 1/2
'Remarks Onions are clean, fairly clean, fairly well and well formed, occasional ill shape, firm crisp, with 25 to 35% weak open necks, skins are fairly well set to many loose and feathery, fairly good and good color, 1 to 4% mechanical injury, some with 8 to 26 average 15% decay early to fairly well advanced state, Fairly good and fair appearance.'
The U. S. Department of Agriculture certificate on this car is dated May 28, 1946 at 9:45 A.M. and the condition of the onions stated:
'Remarks: Inspection and certificate restricted to product in three upper layers and to condition only at applicant's request.'
Plaintiff introduced a portion of the U. S. Dept. of Agriculture market report which showed the Chicago onion market on May 27 for Yellow Bermudas was $3.00, 3 and larger $3 to $3.25, White Wax $2.60 and Texas Mediums $2.25, 50-1b. sacks Yellow Bermudas at $3, also a similar market report for May 28, 1946 as follows: And for May 29, 1946: ...
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