Delivery or non-delivery, that is the question.
A boxcar load of cotton bales belonging to plaintiff, Hohenberg Brothers Company, having an admitted value of $17,872.02 burned at Galveston, Texas. Plaintiff was of the opinion that at the time of the loss the goods were in the custody of the defendant carrier, Missouri Pacific, and that, pursuant to 49 U.S.C. § 20(11) the defendant owed plaintiff for the value of the goods. Defendant was of the opinion that it had not the custody of the goods at the time of the loss and, therefore, was not liable.
To settle the dispute, plaintiff filed suit and the matter was tried on depositions in the Circuit Court of Shelby County. The Trial Judge found that a uniform straight bill of lading had been signed by the railroad and although a certain business practice existed between plaintiff, through its agent, and the defendant railroad, such practice was one merely of convenience and did not affect the legal possession or the delivery of the goods to the carrier. There
Defendant has appealed and insists that a signed bill of lading is only prima facie proof of delivery and acceptance by the railroad and that business custom or practice may contradict the bill of lading to show the true state of affairs; and further that in this case, such practice shows that in fact the goods were not in actual or constructive possession at the time of the loss.
This matter arrives in this Court for a review de novo accompanied by a presumption of the correctness of the finding and judgment below. T.C.A. 27 — 303.
We have underlined the word review in the previous paragraph as we believe counsel for the plaintiff-appellee misconstrues both the nature and scope of review of this Court.
We believe there is misunderstanding regarding the nature of this Court because, in counsel’s brief, it is noted that “At the time of the taking of all depositions, objections except as to the form of the question were reserved for the trial”. Then objections are made in the appellate brief to certain portions of the testimony found in the depositions and we are requested to rule on those objections.
This Court is a court of review, not a Trial Court. We do not try a case de novo as does a Circuit Judge on an appeal from the General Sessions Court. In a de novo trial the Circuit Judge does not review the action of the General Sessions Judge and is not concerned with what took place in the General Sessions Court nor the propriety of the lower Court’s action; and no presumption of correctness attaches to the General Sessions judgment. The matter is tried as if no other trial had occurred.
The nature of a Court of review is entirely different. It is the function of a Court of review to review the actions of the Trial Judge. If it were not so, there would be no need to preserve a record on appeal, for the parties would just have at it all over again in this Court. Additionally, in this Court it is the appealing party who must carry the burden, no matter whether plaintiff or defendant below. In this case, the record does not reveal that any of the objections to testimony now made in this Court were ever made in the lower Court or ruled on by the Trial Judge. Therefore, we are unable to consider such objections on review.
As to the scope of review, counsel correctly cites to us T.C.A. 27-303 and the case of
Bankers Life & Casualty v. Jenkins
(1977 Tenn.)
However, in support of the judgment below counsel cites us to
Mazanec v. Aetna Ins. Co.
(1973 Tenn.)
The case of Mazanec v. Aetna Ins. Co., supra, was a non-jury case reviewed under the material evidence rule. However, the case has no relevance to a review of this non-jury case. Mazanec was a workman’s compensation case review in the Supreme Court where the rule is that workman’s compensation judgments are reviewed as judgments in jury cases. The judgment presently before this Court of Appeals is neither a workman’s compensation judgment nor a jury judgment.
The case of Stone v. Stonecipher, supra, involved the reviewing of a non-jury judgment in an ordinary tort case and the Court did state that such review was not de novo but was under the “material evidence” rule; which statement seems to be in opposition to all that we have so far said on this subject. The case not only seems to be, but is in opposition to what we have said; but for good reason. The case is a 1928 case. T.C.A. 27—303, which requires a de novo review, that is, a preponderance of evidence review of non-jury cases was enacted in 1929. Therefore, Stone v. Stonecipher has not been the law since 1929.
We have taken the time in this Opinion to bring all this out because there seems to be some confusion or misunderstanding among members of the bar as to the nature of this Court and its scope of review in cases such as this. We hope a better understanding will lessen our load.
We will now consider the defendant’s single Assignment of Error which is to the effect that the evidence preponderates against a finding of delivery to the railroad.
The Hohenberg cotton in question was stored at the Southwestern Warehouse in Galveston, Texas. At the time of the loss Hohenberg owned Southwestern. Hohen-berg ordered the cotton into a boxcar located on the tracks of Southwestern at its warehouse and sealed same. Before the car could be physically picked up by the defendant (actually its agent) the cotton burned.
Galveston is the largest shipping and receiving point for cotton in the nation. From the record it would appear that numerous warehouses are located on the island of Galveston. Consequently, there is a large daily movement of goods on and off the island. Because of the island nature of Galveston and the large rail traffic, it is necessary that agencies assemble all rail traffic from the various warehouses for movement off the island. The Galveston Houston & Henderson Railway Company handles the assembly of boxcars on the island. Stone Forwarding Company handled the paper work, that is, the preparation of bills of lading etc., for the assembly of the cars. The Galveston Houston & Henderson Railway Company is either owned by or is the agent of the defendant Missouri Pacific.
The procedure on the island is for the Galveston Houston & Henderson to deliver in the morning a battery of empty boxcars to a cotton warehouse for loading. The cars are placed on the warehouse tracks next to the loading dock. Removable personnel bridges cross the tracks from loading dock to loading dock and no cars may be delivered to or removed from the warehouse track unless these bridges are raised. The string or battery of cars are loaded by means of loading first the car nearest the warehouse dock or end of the warehouse tracks. Upon the loading of a car it is sealed by the warehouse for the railroad and the Stone Forwarding Company is notified of that fact. Bills of lading etc. are prepared on this information. The loaded car is not immediately removed because the railroad wishes to wait until the end of the day to pick up all loaded cars from the various warehouses at one time in order to assemble a freight train. In addition, the warehouse is not desirous that a loaded car be immediately removed from its tracks, for if it were, it would necessitate the complete stoppage of the loading of other cars as the entire battery of cars would have to be
The car in question burned after it was loaded and sealed and after the bill of lading was prepared and signed by the railroad but before the warehouse “ordered out” the car and, in fact, before the warehouse had loaded the entire battery of cars.
The Trial Judge found that (1) a “calling out” was not necessary to place the railroad in constructive possession of the car; (2) and, even if it were, “it is uncertain from the record whether the subject car might not have been ‘called out’ ” (emphasis ours) and, therefore, (3) the evidence did not overcome the presumption of delivery and possession raised by the bill of lading.
As we view the depositions filed in this cause, the proof is that in the ordinary course of events no car was ever removed from the warehouse tracks unless it was “called out” by the warehouse. One of Southwestern’s witnesses testified that for the 31 years that he had been working cotton, no car was removed from the warehouse track unless it had been “called out”. However, he did testify, as pointed out by the Trial Judge, that if the railroad had wanted just one car it could have come and gotten it. What the railroad could possibly have done and what was done for 31 years are two different things. Even so, the railroad could not come and get a car whenever it wanted one. It would still have to seek the permission of the warehouse and have the warehouse remove the personnel bridges which blocked the track.
It seems to us that all parties considered the car turned over to the railroad when the car was called or ordered out and not before.
Responsibility and liability of a carrier pursuant to the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11) does not attach until there is a delivery.
Cain-Sloan Co. v. Louisville & N. R. Co.
(1968)
There is no complete delivery when something remains for the shipper to do as a condition precedent to the commencement of transportation. While a bill of lading operates both as a receipt and a contract, the receipt clause is not conclusive and may be explained by parol or other evidence.
Agar Packing & Provision Co. v. Weldon
(1956 W.S.)
As to the issue of whether it was called out, the defendant’s proof is that the car was never called out the day it burned. The best proof to the contrary is a statement from the warehouse foreman who, when asked whether or not he had, in fact, called out the car, said “No, I can’t, I can’t definitely say that I had.” This does not, in our view, contradict the proof of the railroad that there never had been a “calling out”.
When a case is heard entirely upon depositions, the presumption of correctness of the factual findings of the Trial Judge mandated by T.C.A. 27-303 does not apply with the same strictness as it does in cases heard orally where the Trial Judge has the opportunity to view and appraise the witnesses.
Kennon v. Commercial Standard Ins. Co.
(1963 W.S.)
We are of the opinion that the proof overcomes the presumption of delivery raised by the bill of lading and that the evidence as a whole preponderates against the judgment below. Therefore, the judgment of the Trial Judge is reversed and judgment will be entered in this Court for the defendant, Missouri Pacific Railroad Company. Costs below and of appeal are adjudged against appellee.
Done at Jackson in the two hundred and third year of our Independence and in the one hundred and eighty-third year of our Statehood.