For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Hall, J.
In this suit plaintiff, a purchaser of a large, heavy drying machine, sought to recover for concealed damage to the equipment, discovered after it had been delivered to plaintiff's place of business. The action was brought against the manufacturer and all carriers and bailees who successively, but unconnectedly, handled it until it reached its final destination. Although plaintiff's proofs established the nature of the damage and offered a theory of its cause, they did not demonstrate which particular defendant or defendants had inflicted it. The precise question before us is whether, in this type of transportation-bailee situation, these proofs were sufficient to withstand motions for involuntary dismissal at the end of plaintiff's case, and to shift the burden to each defendant to come forward with evidence concerning his part in the overall transaction, in an effort to clear himself and to throw responsibility upon another defendant, to the benefit of which plaintiff would be entitled.
The trial court dismissed the action as to all defendants on the ground that plaintiff had failed to sustain the burden of proof that any particular defendant was responsible for the damage and that defendants had no burden of going forward.*fn1 The Appellate Division affirmed, with Judge Carton dissenting. 113 N.J. Super. 19 (1971). Plaintiff appeals as of right by reason of the dissent. R. 2:2-1(a)(2).
The following essential particulars appeared in plaintiff's proofs. It ordered the piece of machinery from the manufacturer, defendant Blaw-Knox Company. The contract called for delivery to plaintiff f.o.b. Buffalo, New
York. This meant that passage of title and risk of loss to plaintiff occurred when Blaw-Knox delivered the machine to plaintiff's carrier at its Buffalo factory.
The essential segment of the machine to dry and convert liquids into powder form consisted of two steam heated, chrome plated drums, which rotate on axles alongside each other in a horizontal plane. These drums were covered with heavy paper when the machine left the Blaw-Knox factory. This wrapping was not removed until the machine reached its intended position in plaintiff's plant in Harrison, New Jersey, when it was taken off by the field engineer of Blaw-Knox, preparatory to an operating test. This engineer then discovered that the chrome plating, previously concealed by the paper wrapping, had been abraded down to the underlying metal on some portions of the outer edges of the drums, thereby rendering the machine inoperable for plaintiff's intended purpose.
Plaintiff, by the opinion testimony of two engineer employees, offered a theory of the physical cause of the damage. The testimony was that, because cable marks were found on the axles or trunnions outside the end of the drums (which, though externally apparent, did not affect the operation of the machine), one or more of the defendants had lifted the machine by a crane with cables affixed to each end of the axles, without protective spreaders or other means to keep the cables from rubbing against the edge of the drums, and that the abrasion of the chrome plating at those points resulted therefrom.
Plaintiff's proofs concerning the conduct of the various defendants in handling the machine were derived from admissions in the pretrial order and answers to interrogatories, which were quite general. (Defendants' factual contentions in the pretrial order were not pinpointed, as they should have been, with reference to the details of how the machine was handled by each in relation to the damage, regardless of whether the same had been the subject of discovery.) Blaw-Knox, under its contract to deliver the machine to
plaintiff f.o.b. at its Buffalo factory, delivered it there to plaintiff's I.C.C. licensed, common carrier, defendant Central New York Freightways, Inc. (Central). Blaw-Knox used its crane and cables to place the equipment on Central's truck, with, it said, wooden blocks between the cables and the drums. The load was tied down on the truck by block chain and tarpaulin. No information was given on whether Blaw-Knox or Central did this work or how or where the chain was affixed.
Central delivered the load to plaintiff's consignee, defendant Harrison Warehouse Corporation (Harrison) at its warehouse in Harrison, New Jersey, for storage until plaintiff was ready for it at its plant. Harrison unloaded the dryer and placed it at a spot in the warehouse by its overhead crane and cables. When plaintiff was ready to receive the machine, it engaged defendant Belby Transfer Company (Belby) to transport it from the warehouse to the plant in the same town. Harrison moved and loaded the machine from its storage spot onto Belby's truck by overhead crane and cables. Harrison's answers to interrogatories gave no further details of these operations. Belby hired a crane from defendant John S. Geiger and Sons, Inc. (Geiger) for use in unloading the dryer and positioning it in plaintiff's plant. It is not clear whether employees of Geiger assisted in the operation; in our view this is immaterial since, if Geiger's employees did assist, Geiger would be Belby's agent and Belby would be responsible for their acts.
The unloading and positioning at plaintiff's plant by Belby was supervised and directed by one of plaintiff's engineers who testified concerning the details of it. After the dryer was positioned, plaintiff's employees connected necessary steam piping and electrical wiring before it was inspected and the plating damage discovered by Blaw-Knox's engineer. After on-site repairs were unsuccessful, plaintiff and Blaw-Knox agreed that the drums should be returned ...