Newmark v. Pacific Freight Lines

WOOD (Parker), J.

The Pioneer Provision Company, a manufacturer of meat products, hereinafter referred to as the shipper, employed the defendant, a common carrier by motor trucks, to transport 7,598 pounds of chilled fresh sausage from Los Angeles to Camp Roberts, an army camp near San Luis Obispo. By reason of heavy rainfall which caused the highway to be closed, the defendant did not send the sausage forward immediately after it received it from the shipper on January 22, 1943, but held it at its terminal in Los Angeles about 48 hours. When the sausage arrived at its destination on January 25, 1943, it was rejected by the inspecting officer for the reason that it was spoiled. In this action by the assignee of the shipper to recover damages resulting from the delay in transporting the sausage, plaintiff obtained judgment for $2,110.91 damages. Defendant appeals from the judgment.

Defendant contends that it used reasonable precautions to prevent damage to the sausage; that the loss was not caused by any negligence of defendant; and that the delay was caused solely by an act of God. There is no issue on this appeal concerning the amount of damages.

The sausage was placed on defendant’s truck at the shipper’s place of business in Los Angeles on Friday, January 22, 1943, about 4 p. m., and at that time the sausage had been made about 10 hours, had been chilled to a temperature of 38 degrees, and was in good condition. Without further refrigeration, the sausage, under the weather conditions then prevailing, would have remained “without spoilage” approximately 30 hours. In the ordinary course of events a shipment “picked up” by defendant at the shipper’s place of business about 4 p. m. would arrive at Camp Roberts the following day prior to 1 p. m., that is, the shipment would be in transit about 20 hours. The sausage was in ‘ ‘ cellophane casings ’ ’ and then was packed in corrugated fiber cartons for shipment, each of which

[550]

cartons contained about 75 pounds of sausage. There were 101 such cartons. In dimensions each carton was about 12 inches by 12 inches by 16 inches. Each carton was stencilled on the end thereof, in letters 1 inch high, as follows: “Pork sausage, Fresh, Chilled.” There was a bill of lading which stated that the shipment contained 101 packages of “Pork Sausage” which weighed 7,598 pounds net, and also stated the name of the shipper. At the time of loading the sausage on defendant’s truck the shipper’s employees took the cartons of sausage from the refrigerator and handed them to defendant’s employees who were on the truck and who placed them in the front part of the truck, close together, in 4 tiers 4 cartons high. The sausage did not fill the truck. The truck had a 20-foot open stake-body. The stakes or “side racks” were about 6 feet in height and the ridge pole was about 7 feet above the floor of the truck. The open portion of the truck was covered with a tarpaulin which rested on the ridge pole and the side racks, and extended downward to, and was fastened to, the outer edges of the floor. From the shipper’s place of business the truck went to defendant’s terminal in Los Angeles, where it arrived about 4:30 p. m. When it arrived there, the only freight on it was the sausage. The defendant then completed the loading of the truck with various shipments of other freight. For several days prior to the time the sausage was placed on the truck, a heavy rainstorm had been prevalent in Southern California. It was raining when the truck arrived at the Los Angeles terminal. After defendant had the load ready to go and had called a driver to proceed with it, the defendant received a report from the State Highway Patrol to the effect that by reason of the heavy rains the roads to Camp Roberts were not open. As a result of that report and of a similar report received the next afternoon, Saturday, January 23, the truck did not leave defendant’s Los Angeles terminal until Sunday, January 24, at 3:15 p. m. that is, approximately 48 hours after the sausage had been loaded on the truck.