American Trucking Co. v. Iowa Beef Processors, Inc.

McCLOUD, Chief Justice. The issue is whether the common law liability of a common carrier is reduced to that of a warehouseman upon postponement of acceptance by the consignee following a proper tender by the carrier. Iowa Beef Processors, Inc., shipper, sued the common carrier, American Trucking Company, seeking damages for spoiled meat discovered by the consignee, Standard Meat Company, while its employees were unloading the carrier’s refrigerated trailer. Judgment for $20,223.40 plus interest and attorney’s fees was rendered for the shipper. [308] The carrier appeals. We reverse and render. In the only liability issue submitted, the jury found that the 576 boxes of meat were in good condition when delivered to American Trucking. The carrier took possession of 576 boxes of choice top sirloin in Amarillo, Texas, on April 13, 1976, pursuant to a bill of lading requiring the carrier to deliver the shipment to the consignee in Fort Worth, Texas, on April 14, 1976. The trailer was loaded and sealed by the shipper. Upon arrival, it was the consignee’s responsibility to break the seal. On April 14 the load of meat was properly tendered to the consignee, but was not unloaded by the consignee because of its lack of freezer space. At that time, the consignee informed the carrier it would be necessary to delay the actual physical delivery. The consignee did not break the seal and examine the meat at the time of the tender. The meat remained in the possession of the carrier in the refrigerated trailer. The carrier’s vice-president was notified that the meat could not be unloaded on April 14, and he testified that the continued possession by the carrier was “strictly an accommodation on our part.” Two days following the initial tender, the consignee agreed to unload the meat, and the shipment was returned to the consignee’s dock. During the unloading, on April 16, it was discovered that a substantial quantity of the boxes of meat were spoiled, and the shipment was rejected. The carrier contends that the shipper failed to prove a prima facie case of carrier liability because there is no proof that the meat was spoiled at the time it was properly and timely tendered to the consignee. We agree. In discussing the general common law rule regarding carrier liability,1 our Supreme Court said in Missouri Pacific Railroad Company v. Elmore & Stahl, 368 S.W.2d 99 (Tex.1963) affirmed, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964): A shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination. The carrier may then escape responsibility for the damage only by showing that it was caused solely by one or more of four excepted perils: (1) an act of God; (2) the public enemy; (3) the fault of the shipper, or (4) the inherent nature of the goods themselves. Where the loss is not due to one of these specified causes, it is immaterial whether the carrier has exercised due care or was negligent. As the court stated, “the carrier is not an insurer with respect to damage caused solely by one of the excepted perils, but its responsibility is similar to that of an insurer in so far as other risks are concerned.” Elmore & Stahl did not, however, involve the issue of a proper and timely tender of the goods by the carrier. The shipper argues that it properly proved a prima facie case because the jury found that the meat was in good condition when delivered to the carrier in Amarillo, and the evidence conclusively establishes that a substantial amount of the meat was spoiled when the trailer was unloaded on April 16. The court in Chief Freight Lines Company v. Holiday Inns of America, Inc., 469 S.W.2d 413 (Tex.Civ.App.-Dallas 1971, no writ) stated clearly that the common law liability of a common carrier is reduced to that of a warehouseman after an effective tender of delivery. The court said: The rule has been established that when the carrier tenders delivery to the consignee at a suitable time and place and gives him reasonable opportunity to receive the goods, the carrier’s strict liability ceases, and if the goods remain in the carrier’s custody after that time its responsibility is reduced to that of an ordinary bailee or warehouseman, that is to [309] say, liability must depend on proof of the carrier’s negligence. General American Transportation Corp. v. Indiana Harbor Belt R. Co., 191 F.2d 865 (7th Cir. 1951, cert. den. 343 U.S. 905, 72 S.Ct. 636, 96 L.Ed. 1324); Hines v. First Guaranty State Bank of Aubrey, 243 S.W. 972 (Tex.Com.App.1922); United Firemen’s Ins. Co. v. Thompson, 259 S.W.2d 612 (Tex.Civ.App., Galveston 1953, writ ref’d n. r. e.); American Express Co. v. Duncan, 193 S.W. 411 (Tex.Civ.App., Fort Worth 1917, no writ); Anthony & Jones Co. v. New York Central & H. R. R. Co., 223 N.Y. 21, 119 N.E. 90 (1918); Deer Park Baking Co. v. Cleveland & Chicago Motor Express Co., 68 N.E.2d 824 (Ohio Ct. of App. 1946). The goods need not actually be unloaded or stored, nor need any charge be made for storage in order for the carrier’s liability to be reduced to that of a warehouseman. Southwest Nat. Bank v. Missouri, K. & T. Ry. Co., 18 S.W.2d 807 (Tex.Civ.App., Waco 1929, writ ref’d). See also Trans-Cold Express, Inc. v. Hardin, 415 S.W.2d 431 (Tex.Civ.App.-Austin 1967, no writ) and Ferguson v. Red Arrow Freight Lines, 580 S.W.2d 84 (Tex.Civ.App.-Corpus Christi 1979, no writ). We think the proper rule is stated in 13 Am.Jur.2d, Carriers § 404, p. 887, as follows: Where goods have arrived at their destination, and at the request and for the convenience of the consignee are allowed to remain in the custody of the carrier, its liability as an insurer of the goods ceases and becomes thereafter that of a warehouseman or a depositary. We also note that Tex.Rev.Civ.Stat.Ann. art. 887 (Vernon 1964) provides: If the carrier at the point of destination shall use due diligence to notify the consignee, and the goods are not taken by the consignee, and have in consequence to be stored in the depots or warehouses of the common carriers, they shall thereafter only be liable as warehousemen. The carrier is required to properly transport and tender the goods to the consignee. At the time of tender, the consignee has the right to inspect the goods and determine if any damage has resulted during transportation. The consignee should not have the power to prolong the extraordinary responsibility of the carrier by postponing acceptance. See 149 A.L.R. 1118, at page 1120 (1944). In the present case, the carrier specifically pleaded that its duty to the shipper as a common carrier ceased on April 14, 1976 when the load of meat was timely and properly tendered to the consignee. Iowa Beef Processors, Inc. alleged several specific acts of negligence on the part of the carrier. The shipper, however, elected to submit only the common carrier theory of liability. The alleged negligence theory was waived. Tex.R.Civ.P. 279. A remand under these circumstances would not be appropriate. Owen v. Brown, 447 S.W.2d 883 (Tex.1969). The judgment of the trial court is reversed and rendered. Footnotes [1] Tex.Rev.Civ.Stat.Ann. art. 882 (Vernon 1964) provides that the duties and liabilities of carriers shall be the same as are prescribed by the common law except where otherwise provided.