Watson Bros. Transp. Co. v. Feinberg Kosher Sausage Co.

• Decision Date: 19 December 1951
• Docket Number: No. 14412.,14412.
• Citation: 193 F.2d 283
• Parties: WATSON BROS. TRANSP. CO., Inc. v. FEINBERG KOSHER SAUSAGE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

193 F.2d 283 (1951)

WATSON BROS. TRANSP. CO., Inc. v. FEINBERG KOSHER SAUSAGE CO.

No. 14412.

United States Court of Appeals Eighth Circuit.

December 19, 1951.

Floyd E. Nelson, Minneapolis, Minn. (Donald A. Morken, John M. Palmer, and Stinchfield, Mackall, Crounse & Moore, all of Minneapolis, Minn., on the brief), for appellant.

Lester L. Sokol, Minneapolis, Minn. (Robert A. Levitt, Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.

COLLET, Circuit Judge.

In this action appellee, plaintiff below, seeks to recover for the loss of perishable meat products shipped over the appellant Watson Bros. Transportation Co., Inc., truck line from Minneapolis, Minnesota, to Los Angeles, California. Watson Bros. is a common carrier by motor vehicle and gives refrigerated through service by truck from Minneapolis to Los Angeles. The appellee, Feinberg Kosher Sausage Co., is a processor of meat products at Minneapolis. Prior to March, 1949, Feinberg shipped very little of its products to California. That which it had shipped was barreled in brine to prevent spoiling from excessive temperatures, which was uneconomical. Feinberg had no knowledge of any refrigerated service by truck to California. In March, 1949, Watson Bros.' freight solicitor called on Feinberg and solicited its refrigerated freight business to California, informing Mr. Feinberg, appellee's president, that Watson Bros. had recently instituted a direct refrigerated service to California. The solicitor was informed that if Watson Bros. could get Feinberg's products to California refrigerated, in a reasonable length of time, and if Feinberg could get Swift & Company to handle its products in California, refrigerated freight business could probably be given Watson Bros. by Feinberg. Shortly thereafter, Mr. Feinberg informed the solicitor that satisfactory arrangements had been made with Swift & Company in California, and that it would be up to Watson Bros. to see that Feinberg's products were transported properly. On April 1, Feinberg sent Watson Bros. a letter to that effect. Two shipments were delivered by Feinberg to Watson Bros. at Minneapolis, consigned to Swift & Company in California, on April 6 and April 25, 1949. Neither of these shipments was refrigerated and both arrived safely without any spoilage or deterioration. Several shipments were delivered to Watson Bros. by Feinberg, consigned to intermediate points between Colorado and California, prior to May 2, 1949, which were also not refrigerated and which were delivered in good shape. On May 2 and May 6, 1949, the shipments involved in this action were delivered to Watson Bros. at Minneapolis, consigned to Swift & Company at Los Angeles. Both of these shipments were delivered to Watson Bros. in good condition and were spoiled upon arrival at Los Angeles.

Feinberg had printed copies of bills of lading of its own upon which it listed the products constituting the two shipments in question and specifically described the products as salami, bologna, weiners, franks, and similar processed meat products, on the bill of lading. The products were packaged in new fiberboard boxes, prominently marked, — "Perishable. Keep Cool and Dry."

The bills of lading contained the usual standard provisions, including "The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof except as hereinafter provided." The only provision in the bill of lading which appellant claims falls within the exception of the preceding clause is that the carrier shall not be liable for any loss or damage "caused by * * * the act or default of the shipper * * *."

The tariff under which Watson Bros. operated contained the following clause: "Except as otherwise provided in individual items, rates named in tariffs made subject to this tariff include the cost of protecting shipments from damage by heat or cold, providing that the shipper states specifically on the bill of lading that such protection is required."

Watson Bros. was protected by the following tariff provisions:

"Sec. 1. The obligation to accept articles for shipment shall be subject to capacity and appropriate type of vehicles and to requirements of ordinances or laws limiting or regulating the transportation of the property or use of the vehicles.

"Sec. 2. Rates or ratings provided on freight requiring protection from heat or cold do not obligate the carrier to provide refrigeration, heater service or vehicle specially equipped for such protection, except as otherwise provided in carrier's tariffs."

Feinberg had actual knowledge of none of these tariff provisions. The two shipments now involved were not refrigerated between Minneapolis and Denver. The evidence justifies the conclusion that they were not refrigerated from Denver to Los Angeles. When they arrived at Watson Bros.' dock in Los Angeles they were packed in dry ice and delivered to Swift & Company in that refrigerated condition. The packages were not opened at the time of delivery and were immediately placed in a cooler by Swift & Company, apparently in good condition. When opened and inspected, the shipments were found to be spoiled. Feinberg did not note on the bills of lading that refrigeration was required but appears to have depended entirely upon his understanding with Watson Bros.' solicitor that refrigeration would be provided.

The rate charged for these shipments was the rate referred to in the above quoted clause of the tariff, which included the cost of refrigeration. There was no other rate in effect under the tariff, and no provision was made for any reduction in rate when refrigeration was not furnished.

Watson Bros. defended upon the grounds (1) "That the defendant (carrier) did not have a duty to refrigerate these shipments in the absence of a specific request by plaintiff (shipper) on the bill of lading"; (2) "That defendant in fact used the degree of due care required by its contract or at common law in the transportation of these shipments"; and (3) "The plaintiff has not sustained its burden of proof by substantial evidence that the products were spoiled at the time of delivery to the consignee."

The trial court found that the shipments were spoiled as a result of lack of refrigeration in transit prior to reaching Swift & Company; that Watson Bros. did not exercise reasonable and ordinary care, under the circumstances, in protecting the shipments, and, holding that the tariff provision providing for the request for refrigeration on the bill of lading did not limit the carrier's common law responsibility to exercise due care for the protection of the shipments, entered judgment for the plaintiff for the value of the products lost. The case was tried without a jury.

Since an examination of the record discloses that the evidence amply supports the trial court's finding that both shipments were spoiled as a result of lack of refrigeration in transit, and that the carrier did not exercise reasonable and ordinary care in protecting the shipments from spoilage, we pass immediately to the main question involved on this appeal, to wit, whether the tariff provision above...