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Mattel Inc. v. Interstate Contract Carrier Corp.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


December 27, 1983

MATTEL, INC., PLAINTIFF-APPELLANT,
v.
INTERSTATE CONTRACT CARRIER CORP., DEFENDANT-APPELLEE

722 F.2d 17.

Oakes and Van Graafeiland, Circuit Judges, and Brieant, District Judge.*fn*

Order ON PETITION FOR REHEARING

Interstate petitions for rehearing on the basis that since it is not a common carrier and hence not an insurer of the goods, see Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 110-111, 86 L. Ed. 89, 62 S. Ct. 156 (1941), it can only be held liable if it was negligent. We agree. See Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971). The reference in our opinion to "state law pertaining to common carriers" should have been to "state law pertaining to contracts of carriage."

Interstate then argues that there was no evidence that it was negligent, especially in the light of proof of theft. But there was proof of delivery and loss, thereby making out a prima facie case of negligence on Interstate's part. Id. at 812. On the question whether Mattel, Inc. carried its burden of persuasion on the issue of negligence in the context of theft, id., however, we have not had the benefit of trial court findings. The court did say: "That someone failed to exercise due care to protect the toys from theft is apparent." But it then went on to hold that Interstate had no responsibility to protect the goods at the time they were stolen. It is that conclusion which we have reversed. Thus, even though the case was submitted on a stipulation of agreed facts, in the first instance the issue of negligence is one for the trier of fact.

Judgment reversed; cause remanded.

s/JAMES L. OAKES

s/ E. VAN GRAAFEILAND

Circuit Judges.

s/ CHARLES L. BRIEANT

District Judge.

Disposition

Judgment reversed; cause remanded.


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