Brown-Forman Distillers Corp. v. Walkup Drayage & Warehouse Co.

NOURSE, P. J. Plaintiff sued Walkup Drayage and Warehouse Co., and, by leave of court, substituted for Fourth Doe Corporation the Merchants Express Corporation. Both corporations are operated under the same management and both joined in the defense of the action. The suit involves the failure of the defendants as common carriers to deliver under contract sixty-five cases of whiskey of the value of $2,479.75. The cause was tried to the court without a jury and plaintiff had judgment against both defendants for the breach of the contract of carriage in the value of the goods lost.

The appeal is grounded solely upon the question of the sufficiency of the evidence to support the judgment. Following the accepted rule we will state the facts in the light most favorable to the prevailing party.

On December 22, 1942, plaintiff had stored in the Metlar Warehouse located at 750 Second Street, San Francisco, a large quantity of bottled whiskey. At about 1:30 p. m. of that day the shipping clerk at the warehouse telephoned to defendants to send one of their trucks to the warehouse to transport to a consignee in Oakland two hundred and twenty-five cases of such whiskey. The telephone operator received the call and turned it over to one of defendants’ dispatchers who immediately accepted it and assigned one of his drivers to “pick up” the merchandise. Within half an hour thereafter the driver arrived at the warehouse with a “Walkup” truck and loaded one hundred and twenty-nine cases on his truck. Unable to carry any more cases on the truck the [797]driver went to the warehouse telephone and called one of defendants’ dispatchers to suggest that a second truck he sent to pick up the rest of the consignment. The driver then informed the plaintiff’s shipping clerk that another truck would be along from Walkup to pick up the rest of the load in' about twenty or thirty minutes. The dispatcher at defendants’ office however failed to put the order through in accordance with the office practice. In about twenty minutes after this conversation another “Walkup” truck arrived. Both trucks were painted a bright red color which defendants used as one means of marking and identifying their fleet of some six hundred trucks which they were operating in the San Francisco and Oakland territory at the time. Both had painted on the sides in large red letters the word “Walkup.” These features were known and recognized by plaintiff as distinguishing marks of defendants’ trucks.

When the second driver appeared at the warehouse he asked the shipping clerk what he “had for Highway or P.M.T.” The clerk told him he had nothing for either one, “just the balance for Merchants.” The driver answered, “that is what I am after.” (These expressions refer to Highway Transport Inc., Pacific Motor Transport, and Merchants Express Corporation.) Sixty-five cases of the whiskey were then loaded on the second truck. When the shipping clerk moved to the rear of the warehouse the driver got into the truck and moved rapidly away. One of plaintiff’s employees followed him in his private car but lost the truck in the traffic. The shipping clerk immediately called the defendants’ dispatcher who informed him that he had not dispatched a second truck to pick up the remainder of the consignment and that his records showed that such order was still “open.” Though search was made for the missing liquor it was not found, and the identity of the second driver was not learned.