Judges： Avery, Bejach, Carney
Filed Date： 10/25/1962
Status： Precedential
Modified Date： 11/15/2024
The plaintiff below, Wayne Knitting Mills, brought suit for $3,000.00 against the defendants, Delta Motor Lines, Inc. and L. A. Tucker Truck Lines, Inc., for damages to thirty knitting machines which were shipped from plaintiff’s plant in Jackson, Missouri, to the plaintiff’s plant which was just beginning operations in Kosciusko, Mississippi.
Plaintiff’s declaration averred that the machines were delivered to the defendant, L. A. Tucker Truck Lines, Inc., as a common carrier in good and undamaged condition at Jackson, Missouri; that the defendant, L. A. Tucker Truck Lines, Inc., accepted the machines for shipment to Kosciusko under a bill of lading issued therefor; that said machines were transported by L. A. Tucker Truck Lines to Memphis, Tennessee, and from there to Kosciusko, Mississippi, by the defendant, Delta Motor Lines, Inc.
Plaintiff further alleged that the machines were in a damaged condition when received by the plaintiff at Kosciusko.
Plaintiff also filed a second count in its declaration averring that under Title 49, Sections 20, paragraph (11), and 319 of the U. S. Code relating to the liability of common carriers that the plaintiff was entitled to recover from both defendants regardless of which defendant was guilty of the negligence resulting in damage to the plaintiff’s property.
Each defendant denied liability and denied that it was guilty of any act of negligence resulting in damages to the plaintiff’s property and insisted further that the damage to the plaintiff’s knitting machines was the direct and proximate result of plaintiff’s own negligence in
Also by special plea the defendant, Delta Motor Lines, Inc., relied upon Title 49, Section 101 of U. S. Code Annotated which is as follows:
“Loading by shipper; contents of bill; ascertainment of hind and quantity on request
“When package freight or bulk freight is loaded by a shipper and the goods are described in a bill of lading merely by a statement of marks or labels npon them or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill of lading, such statements, if true, shall not make liable the carrier issuing the bill.of lading, although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor. The carrier may also by inserting in the bill of lading the words ‘Shipper’s weight, load, and count,’ or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him ■ and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods descripted in the bill of lading; Pro*168 vided, however, Where the shipper of bulk freight installs and maintains adequate facilities for weighing shell freight, and the same are available to the carrier, then the carrier, upon written request of such shipper and when given a reasonable opportunity so to do, shall ascertain the kind and quantity of bulk freight within a reasonable time after such written request, and the carriers shall not in such cases insert in the bill of lading the words ‘Shipper’s weight,’ or other words of like purport, and if so inserted contrary to the provisions of this section, said words shall be treated as null and void and as if not inserted therein. Aug. 29, 1916, c. 415, sec. 21, 39 Stat. 541.”
His Honor the Trial Judge sitting without a jury found the issues in favor of the defendants that the plaintiff’s damages were the result of the improper loading and bracing of the machines in the trailer and rendered judgment in favor of each defendant and against the plaintiff. Plaintiff, Wayne Knitting Mills, has perfected its appeal therefrom and assigned error in this court.
On this appeal it is the insistence of the plaintiff-appellant, Wayne Knitting Mills, first, that the preponderance of the evidence shows that the plaintiff did properly load and brace the machines in the trailer and that second, the defendants accepted said machines as loaded by the plaintiff for shipment and are therefore liable for the damages resulting therefrom even though plaintiff may have improperly braced and loaded said machines.
The thirty knitting machines involved in this litigation were new machines purchased from a manufacturer in New Hampshire. They were shipped in cardboard crates on wooden pallets approximately 34 inches square to the plaintiff’s plant in Jackson, Missouri. There the crates were removed. Certain adjustments and settings were made on the machines for the desired type of hosiery to be made in Kosciusko, Mississippi.
The plaintiff, Wayne Knitting Mills, made request of the defendant, L. A. Tucker Truck Lines, for the use of a trailer in which it might load all thirty of the machines for shipment to Mississippi. The defendant, L. A. Tucker Truck Lines, furnished, accordingly, a Delta Motor Lines trailer because the L. A. Tucker Truck Lines stopped in Memphis, Tennessee, and it would be necessary that the goods be transferred over to the defendant, Delta Motor Lines, for shipment from Memphis, Tennessee, to Kosciusko, Mississippi.
After the trailer was placed on the plaintiff’s premises in Jackson, Missouri, the plaintiff’s employees took full charge of loading' and bracing the thirty machines in the defendant’s trailer. The machines were not recrated but they were placed in the trailer on the original wooden pallets. The machines were fastened down to
The proof shows that these knitting machines are somewhat top-heavy being approximately 5 feet high, about 2 feet or 2% feet square and weighing from five to six hunderd pounds each. The inside of the trailer was approximately 32 feet long and 7% feet wide. The machines were placed in the trailer in ten rows of three each. Thus it appears that practically all of the floor of the inside of the trailer was taken up with the wooden pallets on which were affixed the knitting machines.
The machines were braced on the floor of the trailer by nailing wooden 2 x 4’s about 2 feet long from each one of the wooden pallets to each of the adjoining wooden pallets. Then 2 x 4’s were nailed across the floor at each end of the trailer. Apparently none of the wooden pallets were nailed or screwed into the floor.
At the top of each of the knitting machines there was a steel rod extending through the center to which the thread bobbin is attached. This center pole extends above the main body of the machine and was used as the main bracing point across the top of the machines. The thread bobbin was removed and a wooden 2x4 was placed over the top of each center pole by drilling a hole approximately one inch in diameter through the wooden 2x4. The wooden 2x4 was then placed down over the shaft and a nail was inserted through a hole in the metal center post thus holding the 2 x 4 in place. These short 2 x 4’s approximately 4 feet long went from the machine in front directly to and joined the machine directly in the rear. Thus there were then 15 short 2 x 4’s each connecting two machines. 2 x 4’s were then
After the machines had been loaded and braced by the plaintiff, Wayne Knitting Mills, the trailer was turned over to the defendant, L. A. Tucker Truck Lines, accepted and sealed by its employee and a bill of lading issued therefor bearing the following statement: “1 Trailer truck, Textile knitting machines, S L & C (meaning shipper’s, load and count) Trailer No. Delta 498 Seal No. 63507, Do not bump, handle carefully.”
The trailer was transported by defendant, L. A. Tucker Truck Lines, apparently without accident to Memphis, Tennessee, where it was turned over to the defendant, Delta Motor Lines, Inc. Agents or employees of Delta Motor Lines, Inc. noticed that the trailer carried only 16,500 pounds and an employee of Delta Motor Lines, Inc. opened the trailer to see whether or not there was room in there to carry additional freight to Kosciusko and beyond. After opening the doors the employee of Delta Motor Lines determined that it was not feasible to load additional freight therein and the trailer was closed and resealed. Shortly thereafter the trailer was transported by Delta Motor Lines, Inc. to Kosciusko, Missis
Plaintiff proved that because of the damages en route the thirty machines which cost $3,500.00 each were reduced in resale value by approximately $15,000.00. However, the plaintiff made its own repairs to the machines and sought recovery for only the actual cost of repairs, namely $2,149.46 plus interest.
The general rule is that a common carrier of goods is liable as an insurer for loss or damage to such goods with four general exceptions: (1) That the damages were the result of an act of God; (2) that the damages were the result of an act of the pnblic enemy; (3) that the damages were the result of an inherent vice or defect in the goods; and (4) that the damages were the result of an act or default on the part of the shipper of the goods. 9 Am. Jur. 813, “Carriers,” Section 661. A common carrier becomes liable to the shipper for damaged goods by virtue of the contract of carriage and it is-not necessary for the shipper to allege or prove negligence of the carrier in order to recover. Merchants’ Dispatch Transportation Co. v. Block Bros., 1888, 86 Tenn. 392, 416, 6 S. W. 881.
Where the shipper proves that the goods were delivered to the common carrier undamaged and that the goods were received from the carrier in a damaged condition the carrier-becomes liable for the damages unless the carrier can prove that the damages were the result of one or more of the four recognized exceptions to the
His Honor the Trial Judge was of opinion that the damage to the machines was the direct result of the plaintiff’s failure to brace and load properly said machines. Since the case was tried before the judge without a jury on appeal it is tried before this court de novo with a presumption of correctness of the judgment of the lower court. T.C.A. Section 27-303.
Unquestionably the damage occurred while the machines were en route from Memphis, Tennessee, to Kosciusko, Mississippi. The trailer was opened in Memphis by employees of Delta Motor Lines, Inc. and the contents of the trailer examined for the purpose of determining whether or not additional freight could be placed therein. No damage was reported by the employee of Delta at the time and the trailer was resealed before transportation to Kosciusko.
Delta’s driver of the tractor trailer from Memphis to the Delta terminal in Kosciusko testified that the trip was uneventful and that no accident was had or damage done to the trailer while in his custody. This driver left the tractor trailer at the Delta terminal in Kosciusko. Another driver who did not testify drove the tractor trailer from the Delta terminal in Kosciusko approximately one-hálf mile to the Wayne Knitting Mills plant where the damage was discovered. There is no suggestion' by any of the witnesses that the trailer was- involved in an automobile collision or wreck.-
We concur in the finding of His Honor the Trial Judge that the machines were insufficiently braced by the plaintiff’s employees. The front end of the trailer was
None of the 2 x 4’s running crossways of the trailer were tied to the sides of the trailer. At the back of the trailer there was only one 2x4 running crossways of the trailer nailed along the floor at the back of the three rear-most pallets. There was no bracing across the back at the top of ,the machines. The two 2 x 4’s running-lengthwise of the trailer not only were not affixed to the rear wall of the trailer but they did not even extend to the rear of the trailer; they only extended to the front side of the three rearmost machines.
Thus we have thirty top-heavy knitting machines weighing approximately 16,500 pounds sitting on the floor of the trailer. None of the pallets on which the machines were mounted were nailed to the floor. None of the bracing was attached or tied to the sides or rear of the trailer. The 2 x 4’s running lengthwise of the trailer on the top of the machines were only tied or nailed to the front end of the trailer.
The only bracing .tied to the floor of the trailer was the single 2x4 running crosswise of the trailer along the floor in front of the machines and the 2x4 running crosswise along the floor at the back of the machines. The thirty top-heavy knitting machines were tied together at the bottom only by the short 2 x 4’s approximately two feet long each of which joined two pallets or bases together. There were no braces running from the ma
It seems very plausible to ns that the continual over-the-road vibrations of the trailer with nnmerons sndden stops and starts uphill and downhill operated to shake the braces at the bottom of the trailer loose one by one. After the first brace became loosened every successive vibration or sudden stop or start of the trailer placed more pressure and weight on the remaining braces causing them to pull loose more quickly and this process continued until all of the short braces of 2 x 4’s connecting the pallets of the machines were shaken loose and the entire bracing collapsed and splintered. Therefore, the assignments of error relating to the preponderance of the evidence as to plaintiff’s proper bracing and loading of the machines are overruled.
However, the appellant contends that even though the plaintiff had improperly loaded the machines, the defendants, as motor vehicle common carriers had a legal duty to refuse to accept the shipment for carriage if improperly loaded and having accepted the trailer for shipment though improperly loaded and braced, it is liable to the plaintiff for the damages to the machines. We do not seem to have a Tennessee case directly in point on this question.
One of the cases cited and relied upon by the appellant is United States of America v. Savage Truck Line, Inc., 4 Cir., 1953, 209 F.2d 442, 44 A. L. R. (2d) 984. In the Savage Truck Line case some airplane engines encased in cylindrical containers were loaded by employees of the United States on the truck of the defendant, Savage Truck Line, for shipment. The cylinders weighed ap
The judgments were rendered in favor of the plaintiffs against both the United States and against Savage Truck Line. The lower court further held that whichever defendant paid the judgments should be entitled to contribution from the other defendant. The lower court also denied the right of the United States to recover from Savage for. damages to the cylinders and denied the right of Savage Truck Line to recover from the United States for damages to its truck.
The United States Court of Appeals, Fourth Circuit, held that the United States was entitled to recover from Savage Truck Line for the damages to the cylinders; that Savage was not entitled to recover from the United States for damages to his truck; that the United States was entitled to indemnity from Savage on the payment of the judgments to the original plaintiffs below. From said opinion we quote as follows:
“The primary duty as to the safe loading of property is therefore upon the carrier. When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by*177 ordinary observation by the agents of the carrier; bnt if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. This rule is not only followed in cases arising under the federal statutes by decisions of the federal courts but also for the most part by the decisions of the state courts. See Alabama & V. Ry. Co. v. American Cotton Oil Co., 5 Cir., 249 F. 308; Blytheville Cotton Oil Co. v. Kurn, 6 Cir., 155 F. (2d) 467, 470; Lever Bros. v Baltimore & O. R. Co., 4 Cir., 164 F. (2d) 738; Lewis Mach. Co. v. Aztec Lines, 7 Cir., 172 F. (2d) 746; Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077; Atlantic Coast Line R. Co. v. Rice, 169 Ala. 265, 269, 52 So. 918, 29 L. R. A., N. S., 1214; 9 Am. Jur., Carriers, sec. 730. Decisions to the contrary are found in Ross v. Troy & Boston R. R. Co., 49 Vt. 364 and Rixford v. Smith, 52 N. H. 355 which were cited by the Supreme Court of Virginia in Hines v. Buchanan, 131 Va. 88, 109 S. E. 219, but in the Virginia case the court concluded that the improper loading of the car by the shipper was not apparent to the agents of the carrier who received it.
"In the pending case the judge found that the employees of the United States who loaded the truck were guilty of negligence in failing to use ordinary care to secure the engines properly and that the employees of Savage failed to exercise ordinary care in accepting the cargo in the manner in which it was loaded on the truck. He also found that the driver of the truck failed to exercise ordinary care in its operation, having knowledge of the nature of the cargo and the method of its loading and securing.*178 The evidence supports these findings. The loading was entrusted by the United States to two laborers without supervision. The cylinders were set on end on the floor of the truck and secured by skids and timbers and steel tape 1%" in width, nails being used to attach the structure to the floor of the truck which was partly decayed. The result was that the load shifted when the truck rounded the curve, traveling not over 50 miles an hour according to its driver, and the accident occurred.
“With equal certainty it was shown that the agents of Savage inspected the load before the journey was begun and that the driver concluded from his observation that the load was not properly fastened to the truck when he took charge of it. Obviously it was his duty, having this knowledge, to drive with particular attention to the speed of the vehicle but he conducted himself as if conditions were normal and the catastrophe ensued. It follows, applying the rule above set out, that Savage is not entitled to recover from the United States for damages to the Savage truck, hut that the United States is entitled to recover from Savage for the damage to its airplane engines and containers. ’ ’
Immediately following the Savage Truck Line case in 44 A. L. R. 2d there is an annotation beginning at page 993 entitled “Liability of carrier by land or air for damages to goods shipped resulting from improper loading.” From page 1000 of said annotation we quote what appears to have the general and prevailing rule applicable to the case at bar.
*179 “III. Where shipper loads
‘ ‘ Sec. 5 Carrier’s liability despite improper loading; apparent defects.
“While some decisions hold or, at least, declare broadly that a carrier is not to be held responsible for loss occasioned by imperfect loading by, or other carelessness on the part of, the shipper, the general rule is that when the shipper assumes the responsibility of loading, the carrier is not liable where the defects in loading are latent or concealed so that they cannot be discovered by ordinary inspection and observation, but if the improper loading is apparent, that is, if it is a fact which addresses itself to the ordinary observation of the carrier or its servants, the carrier will be held liable notwithstanding the negligence of the shipper or his agents.”
In the case at bar there was nothing latent or hidden about the improper bracing of these machines. The employee of defendant, L. A. Tucker Truck Lines, examined the machines as loaded in the trailer before accepting the same and sealing the trailer for shipment. He saw or should have seen that the machines were not sufficiently and properly braced to withstand the continued over-the-road vibrations uphill and downhill as well as sudden starts and stops of the trip from Jackson, Missouri, to Kosciusko, Mississippi. Likewise, when the employee of Delta Motor Lines opened the trailer at its terminal in Memphis, Tennessee, to determine the feasibility of adding more freight he, too, should have seen that the machines were improperly braced. Very probably some of the braces had already been broken loose at the time of the examination in Memphis, Tennessee, because
Hence, upon the authority of the general rule quoted above we hold that the defendants were chargeable with knowledge of the improper bracing and loading of the machines and having accepted them for shipment with such knowledge are liable to the plaintiff for damages which occurred en route to Kosciusko, Mississippi. Our own cases of Tennessee Packers Inc. v. Tennessee Central Railway Co., 1958, 45 Tenn. App. 57, 319 S. W. (2d) 502, and Tennessee Railway Co. v. Riddle Coal Co., 1 Tenn. App. 129, are germane but are not controlling of the case at bar and therefore we do not discuss them in detail.
It follows that assignment of error No. IV must be sustained and the judgment of the lower court reversed. Plaintiff will be entitled to a judgment in this court against both defendants in the amount of $2,149.46 plus interest at 6% per annum from the date plaintiff’s suit was filed. West Constr. Co. v. Seaboard Air Lines R. Co. (1918) 141 Tenn. 342, 210 S. W. 633 and Inter-City Trucking Co. v. Mason & Dixon Lines (1955) 38 Tenn. App. 450, 276 S. W. (2d) 488.
The costs will be taxed against the defendants.