I dissent. The jury found that the meat was in good condition when delivered to the common carrier. It is undisputed that the meat was not in good condition when delivered from the carrier to the consignee. This establishes a prima facie case of carrier liability, and the carrier failed to establish any facts which would relieve it from liability.
Our Supreme Court stated the rule in Missouri Pacific Railroad Company v. Elmore Stahl, 368 S.W.2d 99, at 101 (Tex. 1963), affirmed, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964):
(A) shipper of goods by common carrier makes a prima facie case of carrier liability by showing that the shipment was in good condition when delivered to the carrier at place of origin and in damaged condition when delivered by the carrier at destination.
While recognizing this general rule, the majority follows an exception which would reduce the carrier's liability to that of a warehouseman when delivery is tendered by the carrier and receipt is postponed by *Page 310 the consignee.1 I am unable to agree that the exception applies in this case, for there is no proof as to the condition of the meat at the time delivery was originally tendered, two days prior to the actual delivery.
In discussing a similar rule, a unanimous United States Supreme Court stated in Schnell v. The Steamship Vallescura,293 U.S. 296, at 304, 55 S.Ct. 194, at 196, 79 L.Ed. 373, at 377 (1934):
The reason for the rule is apparent. He (the carrier) is a bailee entrusted with the shipper's goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is peculiarly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper. In consequence, the law casts upon him (the carrier) the burden of loss which he cannot explain or, explaining, bring within the exceptional case in which he (the carrier) is relieved from liability. (parenthetical explanations added)
I agree that it is a harsh rule which would render the carrier liable for this loss when the facts do not establish whether the meat spoiled while in its care as shipper (before the tender of delivery) or after it assumed the status of a warehouseman (after the tendered delivery was postponed by the consignee). The rule adopted by the majority is, however, even more harsh. The shipper was not present, and was not consulted, when the carrier acquiesced in the consignee's postponement of delivery. As stated in a somewhat similar situation in Travelers Insurance Company v. Delta Air Lines, Inc., 498 S.W.2d 443, at 447 (Tex.Civ.App.-Texarkana 1973, no writ):
It would be an even harder rule which placed the responsibility on the shipper in a case of unexplained loss, since the shipper has no way of knowing or proving what happens to the shipment after it is delivered into the hands of the carrier.
See also Texas and Pacific Railway Company v. Empacadora De Ciudad Juarez, S.A., 342 S.W.2d 195 (Tex.Civ.App.-El Paso 1961, writ ref'd n. r. e.); Frosty Land Foods International, Inc. v. Refrigerated Transport Company, Inc., 613 F.2d 1344 (5th Cir. 1980).
I would affirm the judgment of the district court.