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March 5, 1940


The opinion of the court was delivered by: KIRKPATRICK

This is a suit by the consignee of 21 cars of various perishable agricultural commodities against the delivering carrier for damages for injuries to the products incurred in transportation. There are involved six cars of tomatoes, five of peaches, five of grapes, three of cauliflower, and two of lettuce. The same general considerations apply to all of these groups, and they need not be dealt with separately in this discussion. In all the cars, the products were packed in containers, variously designated as lugs (tomatoes), baskets (grapes and peaches), and crates (lettuce and cauliflower).

The defendant admits that, on delivery, there were a certain number of containers which were so badly damaged as to be practically unsalable and concedes that, if the Court finds the damage to have been due to negligence, it is liable to pay the fair average market value of the contents of such containers. The plaintiff's claim, however, is for a very much larger amount. It is based upon the theory (in support of which testimony was adduced) that in each of the cars the fruit or vegetables in a large number of unbroken containers had been bruised or otherwise damaged by shifting of the load and jars due to rough handling. This condition, though it sometimes showed up in the staining of the container by fruit juice, was frequently not discoverable until the containers were opened. The plaintiff's inspectors reported it in most of the cars, but there was no "check-out", and they made no count of those which, while intact, showed signs of internal injury to the contents. The defendant's inspectors reported only the number of broken packages. Both the plaintiff and the defendant made their inspections by having their men go into the cars when first opened and once or twice during unloading. I doubt that the inspectors could have seen more than half of the individual containers. So far as actual breakage was concerned, the plaintiff's testimony is not in material conflict with the count made by the railroad company's inspectors.

 In most cases, according to the plaintiff's testimony, the products would be sold by samples, three or four of the best-looking containers being set out on the platform. Then, when the plaintiff's customer had taken away his purchase and opened the crates or baskets, he would find the type of damage referred to and would promptly notify the plaintiff. This usually resulted in an adjustment or reduction of the price, although, if there was real damage, the customer would have been within his rights in rescinding the sale. Of course, not all of the plaintiff's claim has this precise fact basis, but it is typical of a large amount of it. In no case did the plaintiff personally go to his customer and inspect the purchase, the ordinary practice being to take the customer's word and make the required reduction or as much of it as appeared to be good business.

 The plaintiff was unable to produce any evidence, other than the prices so obtained, from which the Court could make any estimate of the amount of fruit or vegetables damaged in the manner described above, or the character or extent of the damage to any particular containers.

 Possibly it might make the situation clearer if one or two typical cars are selected. PFE 50927 is a car which shows rather more than the average amount of breakage. The railroad inspection shows "Thirteen lugs set aside with broken sides. One of these show no damage, seven others minus 1/4 to 1/2 contents, apparent pilferage, others show few cracked or bruised tomatoes at point of breakage." And, "Few tomatoes on face have bruised area from being adjacent cover strips." The plaintiff's inspection in part shows "Some lugs show clipped or broken side slats and 8 to 16% bruising." Also, "Average 5% defects consisting of puffy angular or misshapen fruits. Some minor blemishes. Medium quality." This is about all the direct evidence that there is. The plaintiff's testimony shows that at average prices for tomatoes this car should have brought $2,262, that as a matter of fact he obtained $2,149.95 for it, and that that latter is the best price that he could have obtained. He therefore claims damages of $112.05.

 It is thus evident that in the case of this particular car, the price which the plaintiff was able to obtain has no traceable relation to the amount of physical damage which was done to the load in transportation. Both the plaintiff's and the defendant's inspection agencies, reported a large number of lugs wet and stained. There is no way of telling how far this condition was due to the overripe condition of the tomatoes when shipped. The only allowance which can be made is for the 17 lugs which were admittedly damaged in transportation and had to be rejected.

 The plaintiff contends that the rule stated in Meltzer v. Pennsylvania R. Co., D.C., 29 F.Supp. 840, entitles him to recover the difference between the average market prices of the commodities in first class condition and the prices which he received. It must be pointed out, however, that the Meltzer case dealt with an entirely different state of the proof. The commodity involved in that case was watermelons. Both the plaintiff's and the defendant's inspectors observed and reported the condition of each melon as it was taken out of the car. There was evidence from which the Court could find the exact number of watermelons damaged in each car and the precise character and extent of the injury to each. The physical damage being thus established, the Court had to apply the general rule which is conceded to govern, that the correct measure of damages is the difference between the value of the damaged melons had they arrived in good condition and their value in the condition in which they did arrive. The difficulty in the Meltzer case was that the damaged melons were not sold separately from the sound ones, so that their value had to be found from evidence other than sales. The Court accepted the difference between the fair market value of watermelons in first class condition and the prices actually received for the "run of the mine" lots as sold as evidence of the loss in value of the damaged melons. This was perhaps a slight relaxation of the strict rule, but was justified by the necessities of the case and the selling methods which prevailed at the Philadelphia yards. The Court, however, in no case allowed the plaintiff a sum larger than the full market price of all the melons damaged, assuming that where the total loss on a car was greater than this it must be due to something other than the injury to the melons. It is important to note that the Court did not in the Meltzer case accept the plaintiff's loss on his sales as evidence of the amount of physical damage or the number of melons injured. That, of course, had to be proved first. The prices obtained were accepted merely as evidence of the full actual loss to the plaintiff.

 In the state of the evidence of the present case, I cannot allow damages for more than the average market price of all the containers actually shown to have been injured. I cannot accept evidence of price adjustments made by the plaintiff with his customers, which, in most cases, were made entirely upon the customers' say-so, as evidence of damages not disclosed, except very vaguely, by either the plaintiff's or the defendant's inspection reports.

 It is unnecessary to consider the question whether the claims on cars WFE 65959, URT 88262, and MDT 5161 were made within the limitation of the bill of lading, because there is no competent proof of any damage to containers in these cars. However, in order that the plaintiff may have the benefit of a finding, in the event of an appeal, I find as a fact and conclude as a matter of law that the claims as to these cars were made in time.

 Judgment may be entered for the plaintiff in the amount of $469.49.

 The foregoing opinion indicates my views upon the issues of law and fact involved in this case. The statements of fact may be taken as special findings and the statements of law as conclusions of law. In the event of appeal, it will probably be necessary to have separate findings and conclusions, and if they so desire the ...

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