(dissenting). I am forced to disagree with my associates in their opinion that defendant should be held liable here. The amount involved' is small, and therefore the payment of the judgment, I am sure, will give the carrier no great concern. But I fear that the principle involved will, 'if followed in the future, establish a doctrine that a carrier of perishable vegetables is an insurer thereof and that liability for loss resulting from decay during transit cannot be avoided no matter how perfect the proof of the carrier’s freedom from negligence. It is important to note, at the outset that the district judge has plainly fallen into error in stating in his written reasons for judgment that the bill of lading acknowledges receipt of the lettuce in good condition, because, as is evidenced by the record, the shipment moved under what is known as a “shipper’s load and count” bill of lading, which, as I understand it, means that the shipment was loaded and counted entirely by the shipper; that it was not inspected by the carrier; and that the carrier, at point, of origin, knew nothing whatever of the quantity, quality, or condition of the contents of the car.
The bill of lading contained the following stipulation:
“No carrier or party in possession of all or any of the property herein described, shall be liable for any 'loss thereof or damage thereto, or delay caused by the act of God, the public enemy, the authority of law, or the act of default of the shipper or owner, or for natural shrinkage * * * except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier, or party in possession), the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit under the request of the shipper, owner, or party entitled to make such request, or resulting from a defect or vice in the property, or for country damage to cotton or from riots or strikes.”
The law relative to the liability of the carrier for losses due to decay in shipments of perishable fruit and vegetables is very plain, and we find it well stated in McNeil & Scott Co. v. Great Northern R. Co., 156 -Minn. 120, 194 N. W. 614, 616. With reference- to -the carrier, the court said:
“He is not an insurer that ■' perishable freight, which term includes such commodities as fruits and vegetables, will be delivered at destination undamaged.' His undertaking in transporting sucli commodities is to exercise reasonable and ordinary care to preserve and deliver them in a sound condition. If they arrive in an unsound condition, he is not liable in the absence of evidence that negligence on his part caused, or aided in causing, the damage. Evidence that the shipment was in sound condition when received by him and in an unsound condition when delivered *358at destination is prima facie proof that the damage was caused by-his negligence; but he may rebut this presumption by showing, in any way that he can, that he was not at fault. George B. Higgins & Co. v. C. B. & Q. Ry. Co., 135 Minn. 402, 161 N: W. 145, L. R. A. 1917C, 507.”
This court followed this rule in Joseph Chalona Co. v. American Ry. Express Co., 11 La. App. 18, 123 So. 147, which is a case so absolutely identical with that now before us that, in my judgment, it cannot be distinguished, and in which case this court said:
“It will be seen, then, that the carrier is called on to furnish affirmative proof showing all essential matters with reference tó the handling of the car.”
Here the proof is overwhelming that the car which contained the shipment was in good condition; that the time consumed in making the trip was remarkably short; that the car was not opened or tampered with en route.
I say here, as we said in the Chalona case:
“The sole remaining question, and the most important one, is whether or not the car was kept properly iced throughout the journey. Defendant offers a mass of evidence from every point, between the two termini, at which the car was stopped for icing to show that the ice bunkers were replenished ten times en route after the initial icing and twice more after arrival in New Orleans and before consignee accepted delivery.”
Here the icing and salting records are absolutely perfect and they show that, at every point at which the car stopped for ice en route, its bunkers were filled to capacity and that at none of these points had the ice in the bunkers been reduced to less than seven-eighths of the entire capacity of the bunkers, and they also show that the bunkers were kept full of ice during the five days the car remained in New Orleans after its arrival.
It would serve no good purpose to detail the evidence as to the handling of the car and as to the icing thereof. Suffice it to say that the record is perfect and shows not one minor detail in which the carrier was at fault.
But, say my associates and the district judge, the lettuce was in good condition when shipped and in bad condition when inspected here five days after arrival. In other words, no matter what the care of the carrier, it is liable if a perishable shipment, when inspected after arrival, is found to be in poor condition. I do not understand that to be the law of this or of any other state in the Union.
The carrier has completely sustained the burden of showing its own freedom from negligence. This is all that, in my judgment, it is required to do.
. On the other hand, there is in the record evidence as to certain things at both ends of the line, which evidence renders it very doubtful if the lettuce was in good condition when shipped, and also throws grave doubt on the question of whether it was in bad condition when it arrived in New Orleans.
The inspector’s certificate at point of shipment shows, among other things, “15 or 20% soft or tip burn.”
It is true that a diligent effort is made to prove that “tip burn” is of no impor*359tance and that softness in no way affects the quality of lettuce or its ability to withstand shipment. However, one of the witnesses for plaintiff admitted that “it does not affect the soundness of the head of lettuce unless it becomes very prominent and to the extent where it develops into slime.” This statement I consider quite significant in view of the fact that the slimy condition, when, five days after arrival, it was finally inspected at destination, is what is complained of.
But the most suspicious circumstance is the conduct of plaintiff here. When the car arrived, plaintiff examined the contents and, in spite of the claim now made that they were rotted and slimy, plaintiff did not, at that time, complain to the carrier, nor did it obtain an official inspection, but, inscead, allowed the contents to remain in the car more than four days, entering the car several times during that period, and did not obtain an official inspection until the fifth day.
In view of these facts, I feel that the real cause of the condition of the lettuce was its inability to withstand shipment, and that the carrier has established, beyond the fondest expectations of the most optimistic defense attorney, absolute freedom from negligence.
In the short span of life of every vegetable' there comes a time at which its precarious existence approaches what in humans is described as “three score years and ten,” and when, though apparently in perfect health and vigor, it is, nevertheless, on the verge of decay and collapse. An inspection today may give the impression of soundness; tomorrow, or on the next day, a mere layman can tell that it is on the brink of the grave. It is like the biblical “grass of the field which today is and tomorrow is cast into the oven.”
If this were not so, why would such vegetables be called “perishables”?
At the time of shipment the lettuce had reached a period in its brief existence at which it was about to spoil, but at which, so far as an inspection could show, it was in good condition.
I find that at point of destination the actions of plaintiff were most suspicious. On the arrival of the car it was opened by plaintiff’s representative, and, it is now contended, was found to be largely spoiled. What did plaintiff do? Did it cause an official inspection to be made? No. Did it complain to the carrier? No. For five days it did neither of these normal, customary things. I cannot believe that this plaintiff, who, according to the records of this and other courts,' is thoroughly familiar with the methods of procedure in. filing claims and instigating suits thereon,, would have allowed five days to elapse before calling attention to the deterioration, if in fact it existed when the shipment arrived.
During the five days in question the car was opened many times by repi’esentatives of plaintiff, and it may well be that the consequent admission of warm air was responsible for the decayed condition of the lettuce when the official inspection was finally made.
At any rate, as between the positive, affirmative, flawless proof of the carrier, and the evidence offered by plaintiff, I believe that that of the carrier substantially preponderates.
*360I am unable to understand the statement contained in tbe Opinion of tbe trial judge to the effect that “the case appears to be a test case.” I see nothing in the case which would indicate the necessity for a test, unless it be on the question, as the trial judge states, of whether or not, where the carrier shows a perfect record of handling, it is nevertheless liable solely by reason of the fact that a loss has occurred. If this is the legal question that is being tested, I am thoroughly convinced that the answer is that, where the carrier of perishables shows, as it has shown here, that the container was in perfect condition, that usual customary schedules were maintained, and that the car was properly iced at all times, there is no liability in the carrier.
I therefore respectfully dissent.