#### FRISCHHERTZ ELECTRIC COMPANY, Inc. v. STRICKLAND TRANSPORTATION CO., Inc., and Transport Insurance Company.

No. 4486.

Court of Appeal of Louisiana, Fourth Circuit.

June 7, 1971.

Rehearing Denied July 15, 1971.

*237Herman & Herman, Mark B. Herman and Maury Herman, New Orleans, for plaintiff-appellant.

White, Fray & White, Robert H. Fray, Gretna, for defendants-appellees.

Before REGAN, GULOTTA and BOU-TALL, JJ.

REGAN, Judge.

Plaintiff, Frischhertz Electric Company, Inc., filed this suit against the defendants, Strickland Transportation Co., Inc., and its cargo liability insurer, Transport Insurance Company, to recover the sum of $818.79, representing the replacement cost of eight cadium batteries allegedly damaged in transit between the manufacturer’s New York warehouse and its destination in New Orleans.

Defendant, Strickland, answered denying liability. In the alternative, it pleaded plaintiff’s recovery should be limited to the contents of two cartons that plaintiff noted were damaged when the goods were received. The defendant insurer filed no answer, and this is noted in the record; however, plaintiff did not move for a default judgment and this claim was not considered.

From a judgment dismissing plaintiff’s suit against Strickland on a finding that the plaintiff failed to establish the liability of the carrier by a preponderance of the evidence, plaintiff has prosecuted this appeal.

The record reveals plaintiff received a shipment of electrical supplies at a job site in Arabi, Louisiana, from the Lightalarms Electronics Corporation in Brooklyn, New York and eight wet batteries included therein were damaged by leaking acid. The record does not disclose whether the damaged merchandise was a total loss or whether plaintiff made any attempt to minimize its damages. We need not discuss at length the evidence relating to custody of the merchandise at the time it was damaged, because plaintiff failed to prove that the defendant, Strickland, received the batteries from the manufacturer in Brooklyn, New York.

To recover the value of goods damaged in transit from the common carrier, the consignee must prove: (1) the carrier received the goods from the manufacturer in good condition; (2) the merchandise arrived damaged; and (3) the amount of the loss.1

In conformity with the rationale emanating from Yuspeh, plaintiff could have met its burden by producing the original bill of lading showing the merchandise was received by the carrier without an exception to its condition being noted. But the bill of lading in this case, when considered with other freight bills, raises a doubt as to whether Strickland was the carrier at the point of origin. We refer to these items:

(1) The bill of lading has this notation: “To H & R Trucking Co.” This carrier’s name is stamped on the bill. In another place, Strickland appears as the carrier.

(2) The freight bill shows Strickland issues its bill from South Kearny, New Jersey.

*238(3) The exception issued by Strickland noting damage to two cartons on arrival in Arabi, shows there were three points of transfer between Brooklyn and the Arabi job site.

Defendant denied receiving the merchandise in Brooklyn in its answer, and the bill of lading does not prove this point. We are convinced that the plaintiff should have explained how H & R Trucking Company fits into the picture and this it failed to do. The three points of transfer en route raises the possibility that another carrier was involved, particularly since another firm is noted on the bill of lading. The record does reflect Strickland transferred the merchandise at New Orleans from one truck to another but the third transfer is not explained.

We are of the opinion that the plaintiff was required to clarify or explain these questions to meet its burden of proof and this it failed to do. Accordingly, we agree with the result reached by the lower court.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

1

. Yuspeh v. Acme Fash Freight, 222 La. 747, 63 So.2d 743 (1953).

GULOTTA, Judge

(dissenting).

I respectfully dissent from the results reached in the majority opinion. In affirming the judgment of the trial court, the majority concludes that the plaintiff failed to carry the burden of proof by a preponderance of evidence that defendant, Strickland, received the batteries from the manufacturer in Brooklyn.

I concur with the majority in that in order for plaintiff to recover he must prove that the carrier received the goods from the manufacturer in good condition; that the merchandise arrived damaged; and that there was a specific and determinative amount of loss. However, I am of the opinion that the plaintiff successfully carried the burden placed upon him. The record amply reflects that the merchandise arrived in a damaged condition and that the amount of the loss is easily determinative. The only remaining question is whether or not the evidence preponderates that the carrier received the goods from the manufacturer in a good condition.

The majority opinion reasons that the bill of lading has stamped on it the name of another shipper in addition to Strickland and that plaintiff failed to present evidence excluding the fact that the other named shipper was not involved. Hence, this failure opened the door to the possibility that other shippers were involved. Firstly, it is significant that, although the name of another shipper in addition to that of Strickland appeared on the bill of lading, there is no evidence in the record showing that any other shipper was involved ; whereas, the record is replete with evidence involving Strickland. The bill of lading contained no notation or exception to indicate that the merchandise was damaged when Strickland received it. The absence of this exception is an indication that the carrier was not cognizant of any damage to the freight. Secondly, the evidence included the fact that the batteries were received by the consignee in boxes other than those in which they were initially shipped. Defendant’s employee admitted that the batteries had been repackaged or “recoopered” in transit, and additional evidence revealed that the containers were wet when received, thus indicating that the batteries had been damaged earlier. Additionally, an exception present on the freight receipt, as well as testimony of witnesses, further pointed to the fact that the batteries had been found to be damaged upon receipt by the consignee from the carrier, Strickland.

In paragraph II of defendant’s answer, defendant avers: “that in the event any *239damage was occasioned to the shipment in question, said damage was not carrier liability because of the improper handling of merchandise but that damage was of an inherent nature through normal handling.”

In connection with defendant’s contention, Strickland advised plaintiff by letter that the damage to the batteries was caused because the merchandise had not been properly packaged for shipping. Strickland made no serious contention that it was not the carrier that transported the batteries. The record and testimony clearly indicates that Strickland acknowledged being the carrier but that it averred that the damage resulted because of the failure by the shipper to properly package the batteries.

Plaintiff, on the other hand, offered evidence contained in a letter in the record that the merchandise was shipped in factory cartons with regular shipping labels affixed and “CAUTION ACID” tags attached, and that the containers also bore “TOP UP” markings. The manufacturer originally packaged the batteries in four containers; however, the batteries were received in three containers after having been repackaged in transit.

I am of the opinion that plaintiff successfully carried his burden that the carrier received the merchandise from the manufacturer in good condition. The posture of the record after plaintiff submitted his evidence placed the burden on the defendant of going forward with the evidence to show the possibility of the existence of another carrier. This it failed to do. Accordingly, I respectfully dissent.

ON APPLICATION FOR REHEARING

PER CURIAM.

In its application for rehearing appellant points out we quoted erroneously from the bill of lading. What we stated read “To H. & R. Trucking Co.”, simply read “H. & R. Trucking Co.” We do not think this alters the result we originally reached.

GULOTTA, J., is of the opinion rehearing should be granted.