In the motion for a rehearing of this case, counsel for movant cite four cases, the decisions of which, they assert, require a different judgment from that rendered. The cases are: Clark v. Barnwell, 12 Howard (U.S.), 272 (13 L. ed. 985); Gramling Electric Refrigeration v. Southern Ry. Co.,155 S.C. 394 (152 S.E. 670); Goldberg v. New York c. R. Co.,130 Me. 96 (153 A. 812); Krallman v. Illinois Central R. Co.,209 Mo. App. 286 (235 S.W. 830). The decision in the Clark case is not applicable to the facts of the instant case, for there it was shown that the damage to the shipment occurred while the shipment was in possession of the defendant carrier (a ship), and the decision in favor of the carrier was based upon the fact that the evidence showed that the damage was due to the "dangers of the seas;" and, that under the provisions of the bill of lading, the carrier was not *Page 889 liable for such damage. Yet, in that case, the court made the following ruling: "The words `contents unknown,' being annexed to a bill of lading, imply that the master [of the ship] only meant to acknowledge the shipment in good order of the cases, as to their external condition. He might justify himself by showingthat the contents were not in good order." (Italics ours.) The case of Gramling Electric Refrigeration, supra, is distinguished by its facts from the instant case. There a refrigerator was crated at the factory in Schenectady, N. Y., shipped from there to New York City by rail, then from that city via the Clyde Steamship Line to Jacksonville, Fla., where it was delivered to the Florida Electric Company and sent by rail to Atlanta, where it was received by the General Electric Company and stored in its warehouse, where, as said by the Supreme Court of South Carolina, it remained "indefinitely," until it was taken out and delivered to the Southern Railway Company for shipment to Orangeburg, S.C. In due time the shipment arrived in Orangeburg over the line of the Southern and was delivered to the Gramling Electric Refrigeration. The shipment was then loaded on a truck and carried to Cameron, S.C., which was about ten miles distant. There the refrigerator was uncrated and found to be damaged beyond repair. The Gramling corporation sued the Southern Railway Company for damages and obtained a verdict and judgment in its favor. The Supreme Court of South Carolina reversed the judgment and held there was no presumption that the damage to the shipment was caused by the delivering carrier, since the shipment was twice broken and its condition on reshipment was not shown. And Blease, J., concurring in the judgment, stated: "I concur in the result of the opinion of Mr. Justice Cothran on the ground that I do not think there was any evidence favorable to the plaintiff's cause of action that the refrigerator was in good condition at the time of its delivery to the railroad company in Atlanta, Ga., as some time prior to that delivery the refrigerator was not in the hands of the delivering carrier, or of any of its connecting carriers. The damage to the refrigerator may have occurred between its receipt in Atlanta and the time of its delivery to the delivering carrier. It was incumbent upon the plaintiff, as I understand the law, to show, under the circumstances, that a shipment of this kind was in good condition at the time of its delivery to the defendant carrier." *Page 890
In the Goldberg case, supra, the Supreme Court of Maine ruled as follows: "A bill of lading signed by a carrier acknowledging the receipt of merchandise in good order or in apparently good order is prima facie evidence that, as to external appearance and in so far as its condition could be ascertained by mere inspection, the goods were in good order, and the burden of going forward with the evidence and rebutting the presumption raised by such an admission falls on the carrier." In the same case, on page 813, the court held that it was incumbent on the shipper to prove that the goods, when delivered to the carrier, were in atleast better condition than was found to be the case of their delivery to the consignee. In the instant case the undisputed evidence showed that the goods when delivered to the Pennsylvania Railroad were at least in twenty-five pounds better condition than when they arrived in Atlanta.
In the Krallman case, supra, the court made the following ruling: "The bill of lading receipted for the tomatoes `in apparent good order (contents, inward condition, and value unknown).' This recital was an acknowledgment of the good order of the external apparent condition of the goods and prima facie evidence against the carrier who issued it." In that case the court held that the defendant terminal carrier was not a party to the bill of lading because there was no proof that the relation of partnership existed between it and the initial carrier. So, in the instant case the recital in the bill of lading that the shipment was received in "apparent good order, contents unknown," was prima facie evidence against the Pennsylvania Railroad. Assume that it was not such evidence against the Southern, yet since the prima facie evidence against the Pennsylvania that the shipment was in good order when received by it was not rebutted by any legal evidence introduced by the Southern, but on the contrary was supported by other aliunde proof by Acme, a finding was demanded that the shipment was in good order when received by the Pennsylvania; and, under the binding stipulation entered into by the parties that the pilferage occurred in New York City andbefore the shipment was transferred from the Pennsylvania to theSouthern, a finding was demanded that the pilferage occurred while the shipment was in the possession of the Pennsylvania; and, therefore, under the law, a judgment for Acme was demanded. *Page 891
The contention of movant that the evidence failed to show the value of the twenty-five missing pounds of the shipment is without merit. As said by the Supreme Court in its opinion in this case: "If Acme did in fact have a remedy over against the Southern, then under Code section quoted [§ 38-624] its avouchment by Acme would render the finding in the suit of Saul against Acme conclusive against the Southern as to the liability and the amount of liability by Acme to Saul; and upon such right to a remedy over being subsequently established by aliunde proof, the Southern would be liable to Acme in the amount of the judgment which had been entered against it." Acme did vouch the Southern into court, and did establish by uncontradicted aliunde evidence of probative value that it had a remedy over against the Southern. Therefore the Southern was liable to Acme in the amount of the judgment entered against it in the Saul case.
Now that the law applicable to the case has been declared by the Supreme Court, a new trial should be had under the law as thus expounded.
Rehearing denied. MacIntyre and Gardner, JJ., concur.