Conford, Kolovsky and Carton. Carton, J.A.D. (dissenting).
We are constrained to agree with the judgment of dismissal as to all defendants in this case, notwithstanding the probability that the damage to the equipment occurred while it was being loaded or unloaded by crane and cable by one or more of defendants, Blaw-Knox, Harrison Warehouse, Geiger or Belby.*fn1
The only substantial proof as to how the damage occurred was that it was by steel cables rubbing against the equipment in the course of hoisting it without protective spreaders between the object and the cables. Cables were used by Blaw-Knox in loading onto Central Freightways' truck; by Harrison Warehouse in unloading from that truck and later in loading onto Belby's truck, and finally by Belby (which may have been aided by Geiger) in hoisting the object to the third floor of plaintiff's plant, and possibly in moving it into final position for use at that plant.
Taken as a whole, the proofs do not establish a basis for reasonably finding, as a matter of probability, that the
damage was caused by any particular one of the four handlers mentioned. It could have been by any.*fn2 See Hansen v. Eagle-Picher Lead Co. , 8 N.J. 133, 141 (1951). Hannett, plaintiff's representative at the time of the occurrence (but not employed by it at the time of trial), testified he saw a smudge and a slight tear in the protective wrapping paper around the drums (the item damaged) while the equipment was at Harrison Warehouse. He complained to no one. Contradictorily, however, he said he saw no tear on the paper after delivery to plaintiff's premises by Belby. However, he did see cable marks on the trunnion (axle) portion of the drums, a portion not protectively wrapped, while the equipment was on Belby's truck before being lifted into the plant. But giving Hannett's testimony the most favorable reading from plaintiff's point of view, it would justify at most only an inference that either Blaw-Knox or Harrison Warehouse had done the damage, not that it was more probably one than the other.
There is no prima facie case against Central Freightways by virtue of its status as an interstate common carrier or by reason of its having given a "clear receipt" to Blaw-Knox. It is true that a common carrier is liable for any damage to goods while in its custody. But the rub here is absence of proof that the damage (abrasion of the drums by cable) occurred during the carrier's custody. Admittedly, Blaw-Knox put the equipment aboard the truck and Harrison Warehouse took it off, both firms using a crane and cable. The "clear receipt" given Blaw-Knox constitutes prima facie proof merely that there was no apparent damage to the goods when taken aboard by Central Freightways. Silver Lining, Inc. v. Shein , 37 N.J. Super. 206, 214 (App. Div. 1955); Lincoln Farm Products Corp. v. Central R.R. of N.J. , 81 N.J. Super. 161, 168-169 (App. Div. 1963). It does not admit there was no concealed unobservable damage to the equipment. Even plaintiff's representatives, Hannett
and Batchelar, both of whom saw the equipment before it was unwrapped at terminus, saw no damage to the drums at that time. Thus the giving of the receipt by Central Freightways, in the light of all the other proof would not furnish a basis to permit a jury to conclude that the goods were in worse condition when the carrier delivered them than when they were delivered to it -- a necessary prerequisite to liability. Silver Lining, Inc. v. Shein, supra , 37 N.J. Super. at 214.
Plaintiff's claim against Blaw-Knox for breach of warranty had to be dismissed because, on its own case, any defect in the article as manufactured was negatived by its own proofs that the defect was the result of abrasion by cable while in transit. Blaw-Knox could therefore be held, if at all, only for damaging the goods in placing them aboard the carrier at Buffalo -- a thesis not established against it by plaintiff's proofs on the basis of probability as distinguished from mere speculative possibility. Hansen v. Eagle-Picher Lead Co., supra.
We are not insensitive to the plight of the unsuccessful plaintiff manifested by the dissenting opinion herein. However, it will be noted that discovery efforts by plaintiff were confined to interrogatories. No depositions were taken by it. Second, the mere denial of the motion to dismiss would not improve plaintiff's proof position if defendants rested without offering proofs -- their undoubted right. Finally, the interests of justice are not served if, in the effort to make plaintiff whole, a jury is permitted at random to select any one out of three or four defendants for liability where the greater mathematical probability is that the negligence is that of another of them, if of any at all.
The commercial policy considerations advanced by the dissent might well call for a legislative solution through arbitrary placement of responsibility in a proof situation of this kind (compare the Carmack amendment, cited in the dissent). In the absence thereof, we see no justification for judicial remission here of the ordinary procedural principle
that a suitor must prove his case against a defendant by the preponderance of the probabilities.
Judgment affirmed; no costs.
CARTON, J.A.D. (dissenting). The majority concede the probability that one or more of the defendants handling the dryer during the course of its journey from the manufactory to the purchaser's plant were responsible for its damaged condition. Yet they conclude that the law required the dismissal of the action at the end of plaintiff's case along with the dismissal of all cross-claims without imposing upon any defendant the obligation of coming forward with evidence as to what it did while the machine was in its possession and control.
The law does not compel such a "lame and impotent conclusion." Reason and ordinary common sence dictate that in such a commonplace, mercantile situation (involving as it does the handling and transportation by successive but unconnected carriers and other bailees for hire) existing procedures be adapted or a new remedy be devised which will cause those parties most likely to possess knowledge of the occurrence to come forward with the facts peculiarly within their possession. To me it seems indefensible that the court should stand idly by and lend itself to such an obvious thwarting of justice.
Such judicial reticence cannot be rationalized on any hypothesis that it is improbable any one defendant can be shown to be liable. This assumption discounts the possibility -- and perhaps likelihood -- that the defendants' proofs may well single out the one responsible from the group of those probably liable. Granting of judgment, at least at this juncture, is premature on any thesis.
The broader concept implicit in the majority's view that defendants have no responsibility to offer proof, and that the courts have no power to compel a full exposure of the facts, suggests a reverence to procedure which contravenes
the modern insistence that causes be determined ...