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.r 2 0 19fl 

Submitted on briefs: April 2, 1981 

Decided: May 20, 1981 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

Midland Foods, Inc., (shipper) appeals from a judgment 

of $14,960.11 in favor of Add Reese (carrier) entered September 11, 1980, in the Thirteenth Judicial District, Yellowstone 

County, Honorable Robert H. Wilson presiding, following a 

trial of the court held on August 12, 1980. We affirm the 

trial court's judgment in favor 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, in March of 1974. The disputed 152 

boxes of bull meat were refused by Lucky Stores when delivered by the carrier. The shipper deducted the value of the 

rejected meat from an open account maintained with the carrier. 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 to judgment 

as a matter of law. 

2. Whether there are sufficient facts in the record to 

support the findings made by the trial court. 

The trial court found that on March 12, 1974, the shipper's employees loaded 30,000 pounds of fresh meat into the 

carrier ' s refrigerated truck-trailer unit for transport to 

Lucky Stores in Los Angeles, California. The loaded meat 

came from cattle killed by the shipper in its processing 

plant at Billings, Montana, and from carcasses delivered to 

the shipper by Caviness Packing Company of Texas. The court 

further found that the shipper 's employees exerci-sed exclusive control of the meat during both the butchering and 
loading process. Carrier's drivers picked up the refrigerated trailer unit af ter loading. 

The refrigerated trailer unit was designed to hold the 

temperature of the meat cargo at the same temperature the 

meat was when loaded. The temperature of the trailer unit 

was set at 20' F. The cooling unit would not lower the 

temperature of the cargo below that at which it was loaded. 

The court found that the refrigerated unit functioned properly 

on the haul to Los Angeles. 

At the 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 freight bills or bills of 

lading the reason for rejection of the cargo. The carrier's 

driver testified that Whisler rejected the meat because "he 

thought the meat had been loaded frozen and it was in a 

thawing process when I delivered it." The frosted meat was 

in boxes 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' it was -frozen. 

The shipper's meat broker later checked the load in 

storage and advised the shipper that the load was rejected 

because it was "off odor". The shipper contends throughout 

the case that "off odor" was the basis for rejection. The 

trial court did not make a finding respecting the reason for 

Lucky Stores rejecting the load. 

Pursuant to direction from the shipper, the carrier 

returned the meat to the shipper in a trailer unit carrying 
vegetables. The temperature of the trailer unit, while 

hauling vegetables, was held at 38O F, which would not 

prevent the frozen meat from thawing. This fact was known 

to the shipper. When the meat arrived in Billings, it was 

"soggy", and blood was running out of 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 at all times. This finding 

was premised upon the fact that the equipment was new and 

upon the driver's testimony that periodic checks of the load 

were made during transport. 

Liability for damage to interstate shipments is governed 

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 act of God, (2) the public enemy, (3) the 

act of 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, 12 L.Ed.2d 194. 

For the shipper to establish a prima facie case, it must 

show that the meat was delivered to the carrier in good 

condition and arrived in a 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 rests upon a description of its 

equipment and testimony by the driver that the unit functioned 

properly throughout the trip. The shipper's case is that 

the meat was delivered in good condition and, therefore, 
must have deteriorated during the haul. We have carefully 

reviewed the record to determine if there is substantial 

credible evidence to support the judgment entered by the 

trial court. 

The record is not clear on whether the meat was rejected 

by Lucky Stores because it was thawing or because the meat 

was "off odor". There is evidence 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, 

all of the meat that was rejected was on the bottom of the 

trailer unit. The record is devoid of evidence from the 

shipper's employees regarding how the boxes of meat were 

stacked prior to being loaded in the trailer unit. Nevertheless, assuming the trailer was loaded from front to back, 

the shipper can argue that all of the meat found to be in a 

"thawing process" would not have been on the bottom of the 

trailer unit unless the condition of the meat changed after 

it was loaded. 

The shipper's position also finds some support in the 

fact that, if the temperature of the trailer was held at 20° 

F throughout the trip, the meat would not have been in a 

"thawing process", at the time it was delivered to Lucky 

Stores. Again, the record is devoid of evidence regarding 

whether frozen meat would thaw at a temperature of 20' F. 

However, if there is substantial credible evidence to 

support the trial court's decision in favor of the carrier, 

we must affirm. We find such evidence to exist. 

The temperature of the meat at the 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 on 
March 12. The meat which was boned on Monday was put into a 

freezer at -lo0 F until it was loaded Tuesday. The meat 

that was boned on Tuesday was being processed in a room 

where the temperature varied from 32' F to 50' F. It was 

not subjected to freezing temperatures and was loaded after 

it was boned on Tuesday. These facts account for the wide 

variation in meat temperature found at the Lucky Stores. 

Whether the meat was rejected because it was warm and 

"off odor" or because it was "thawing" the record can inferentially support the meat being loaded by the shipper in 

the same condition it was found to be in when examined at 

Lucky Stores. We must affirm the trial court if there is 

any substantial credible evidence to support its judgment. 

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 carrier met that burden by proving that the equipment 

did not malfunction during the trip, thereby creating an 

inference of damage occurring prior to the haul. Although 

the shipper's testimony attempted to prove that the meat was 

in an acceptable condition when it was loaded, there is 

evidence in the record from which the trial court could find 

that the meat rejected by Lucky Stores was in that same 

condition when loaded by the shipper. Therefore, the shipper's 

conduct in handling 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 findings made by the trial court. 

The judgment is affirmed. 
We concur: