the Government inspection, which took place at Nogales, Arizona, two days after it was loaded. This inspection showed a proper loading and icing of the car, but it is to be noted that it was restricted to the top layer of the load, and -- an important item -- it showed the load average only 75% U.S. 1 quality. The report is, "Defects 12% to 45%, averaging approximately 26%, consisting of 8% puffy, 4% soft ripe, 2% worm injury, balance mostly soft, scars, or slightly shriveled." The plaintiff's inspection agency reported an average of "12% soft rot. Many wet packs, stained and leaking condition." Also, "14% soft overripe." Also, "average 6% defects, angular, puffy stock or heavy scars. Medium quality. Very weak condition". (See Note.)
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 parties may submit requests in accordance with what has been said in the opinion.
I fully agree with the defendant's contention that, in the case of delivery to the originating carrier in foreign countries, liability of the defendant is as it was at common law, that is, he is liable for injuries occurring to the cars on his own line. But even under the common law, the evidence of the Government inspection at some time reasonably close to the delivery of the load to the defendant may be taken as evidence of its condition when delivered to the defendant, and if it showed perfect condition the Court could find that the injury at the time of delivery was due to the negligence of the defendant. I do not think that Jackson Co. v. Pennsylvania R. Co., 112 Pa.Super. 535, 172 A. 20, forbids this application of the ordinary presumption of the continuance of any condition shown to have existed. The evidence in that case clearly indicated that the damage must have occurred by reason of the negligence of an earlier carrier.
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