### No. 80-443 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

ADD REESE, Plaintiff and Respondent,

vs. MIDLAND EMPIRE PACKING CO., INC., 

### a Corporation, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclair,Murphy, Nelson, Edwards,

and Molloy, Billings, Montana For Respondent: Ralph Herriott,Billings, Montana

Filed: 

# 1R.r20

## 19fl Submitted on briefs: April 2, 1981 Decided: May 20, 1981

ClerkMr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court.

Midland Foods, Inc., (shipper) appeals from a judgment of $14,960.11 infavor of Add Reese (carrier)entered September 11, 1980, inthe ThirteenthJudicial District, Yellowstone County, Honorable Robert H. Wilson presiding, following a trialof the courtheld on August 12, 1980. We affirm the trial court's judgment infavor of the carrier. This dispute involves liability for damage to 152 boxes of boned bull meat weighing 9,120 pounds. The meat

was part of a shipment taken by the carrier from the shipper's dock i.n Billings, Montana, and delivered to Lucky Stores, Buena Park, California, inMarch of 1974. The disputed 152 boxes of bullmeat 

### wererefused by Lucky Stores when delivered by the carrier. The shipper deducted thevalue of the rejected meat from an open account maintained with the car

### rier. The carrier then brought this action. The issues on appeal are: 1. Whether under the Carmack Amendment, 49 U.S

# . C. 

## , §20 

### //

### 5'cj

# 7 (ll), (49 U.S.C., r;2&W3j, the shipper 

### is entitled tojudgment

asa matter of law. 2. Whether there are sufficientfacts in the record to support the findingsmade by the trial court. The trial courtfound thaton March 12, 1974, the shipper's employees loaded 30,000 pounds of freshmeat into the carrier

## 's refrigerated truck-trailer unit for transport to Lucky Stores inLos Angeles, California. The loaded meat

came from cattlekilled by the shipper in

### itsprocessing plantatBillings, Montana, and from carcasses delivered to the shipper by Caviness Packing Company of Texas. The court further found that the shipper

### 's employees exerci-sedexclusive control of the meat during both the butchering andloading process. Carrier's driverspicked up the refrigerated trailer unit after loading. The refrigerated trailer unitwas designed to hold the temperature of the meat cargo atthe same temperature the meat was when loaded. The temperature of the trailer unit

was 

### set at20' F. The cooling unitwould not lower the temperature of the cargo below that atwhich 

### itwas loaded. The court found that the refrigerated unit functioned properly

on the haul to Los Angeles. Atthe time of delivery to Lucky Stores on March 14, 1974, the load was inspected by one Whisler, an employee inspector of Lucky Stores. Whisler endorsed upon the freight bills and bills of lading, the temperature of the meat, 34O F --50' F, without specifying the particular temperature of any box in the load. Contrary to ordinary business practice, Whisler did not endorse upon the freightbills or bills of lading the reason for rejection of the cargo. The carrier's driver testified thatWhisler rejected the meat because "he thought the meat had been loaded frozen and 

### itwas ina thawing process when I delivered it." The frostedmeat was inboxes on the floor of the trailer unit. After learning of the rejection, the shipper directed that the meat be taken to Pacific Cold Storage, where'

### itwas-frozen. The shipper's meat broker later checked the load in storage and advised the shipper that the load was rejected because 

### itwas "off odor". The shipper contends throughout the case that "off odor" was the basis for rejection. The trialcourt did notmake a finding respecting the reason for Lucky Stores rejecting the load. Pursuant to direction from the shipper, the carrier returned themeat to the shipper ina trailer unit carryingvegetables. The temperature of the trailer unit, while hauling vegetables, was held at38O F, which would not prevent the frozenmeat from thawing. This factwas known to the shipper. When the meat arrived inBillings, 

### itwas "soggy", and blood was running outof the boxes. The meat

was eventually submitted to a rendering process by the shipper and sold for animal consumption. The 

### trial court found that the carrier's refrigerated trailer unit functioned properly atall times. This finding



### was premised upon the factthat the equipment was new and upon the driver's testimony thatperiodic checks of the load

were made during transport. Liability for damage to interstate shipments 

### isgoverned by the Carmack Amendment, 49 U.S .C., 

### 520(1) 

## , reenacted as 

### 49 U.S.C., 811707, without substantive change. This statute codifies the common-law rule that a carrier, though not an absolute insurer, 

### is liable for damage unless the damage 

### is caused by: (1)an actof God, (2) the public enemy, (3) the actof the shipper, (4) a public authority, or, (5) the inherent vice or nature of the goods. Missouri Pacific Railroad v. Elmore & Stahl (1964), 377 U.S. 134, 138, 84 S.Ct. 1142, 1145, 12L.Ed.2d 194. For the shipper to establish 

### a prima facie case, 

### itmust show that the meat was delivered to the carrier ingood condition and arrived ina damaged condition. The burden 

### is then on the carrier to show: (1)freedom from negligence and (2) applicability of at

### least one of the enumerated exceptions. Missouri Pacific Railroad. The carrier's case restsupon a description of 

### its equipment and testimony by the driver that the unit functioned properly throughout the trip. The shipper's case 

### is that themeat was delivered ingood condition and, therefore,must have deteriorated during the haul. Wehave carefully reviewed the record to determine if there 

### is substantial credible evidence to support the judgment entered by the trial court. The record 

### isnot clear on whether the meat was rejected by Lucky Storesbecause 

### itwas thawing or because the 

### meat

was "off odor". There 

### isevidence to support each. The strongest evidence supporting the position of the shipper that the condition of the meat changed during the period of transportation, comes from two sources. First, allof the meat thatwas rejected was on the bottom of the trailerunit. The record 

### isdevoid of evidence from the shipper's employees regarding how the boxes of meat were stacked prior tobeing loaded in the trailer unit. Nevertheless, assuming the trailer was loaded from front toback, the shipper can argue that allof the meat found tobe ina "thawing process" would not have been on the bottom of the trailer unit unless the condition of the meat changed after 

### itwas loaded. The shipper's position also finds some support inthe fact that, if the temperature of the 

### trailer was held at20° F throughout the trip, the meat would not have been in a "thawing process", atthe time 

### itwas delivered to Lucky Stores. Again, the record 

### isdevoid of evidence regarding whether frozen meat would thaw ata temperature of 20' F. However, if there 

### is substantial credible evidence to support the trialcourt's decision infavor of the carrier,

we must affirm. We find such evidence to exist. The temperature of the meat atthe time of delivery to Lucky Stores ranged from 34' F to 50' F. The record discloses the reason for this variation. The shipper finished boning part of the bull meat on Monday, March 

### 11, and the remainder on Tuesday, March 12. The meat was shipped onMarch 12. The meat which was boned on Monday was put into a freezer at

## -lo0 F until 

### itwas loaded Tuesday. The meat thatwas boned on Tuesday was being processed ina room where the temperature varied from 32' F to 50' F. Itwas not subjected to freezing temperatures and was loaded after it was boned on Tuesday. These facts account for the wide variation inmeat temperature found atthe Lucky Stores. Whether the meat was rejected because 

### it was warm and "off odor" or because 

### itwas "thawing" the record can inferentially support the meat being loaded by the shipper in the same condition 

### itwas found tobe inwhen examined at Lucky Stores. Wemust affirm the trial court if there 

### is any substantial credible evidence to support 

### itsjudgment. Rule 52, M.R.Civ.P. Under the Carmack Amendment, the 

### carrier had the burden of proving that the shipper was responsible for the loss. The carriermet thatburden by proving that the equipment did notmalfunction during the trip, thereby creating an inference of damage occurring prior to the haul. Although the shipper's testimony attempted toprove that the meat was inan acceptable condition when 

### itwas loaded, there 

### is evidence inthe record from which the trial court could find that the meat rejected by Lucky Storeswas in that same condition when loaded by the shipper. Therefore, the shipper's conduct inhandling the meat led to the rejection. Although


### we might have decided the case differently had 

### we been the trier of-fact, there 

### is sufficient evidence in the record to support the findingsmade by the trial court. The judgment 

### is affirmed.

### We concur: