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May 28, 1940


Sur Plaintiff's Motions to Amend

Findings and for New Trial.

I. The plaintiff complains of the following findings, contained in the opinion: "In no case did the plaintiff personally go to his customer and inspect the purchase * * *." I agree that there is no positive evidence that the plaintiff never personally went to a customer to inspect the purchase. Consequently, the finding is somewhat broader than the record warrants, though it might be permissible to infer that if there had been any inspections of the product, to verify damage claims, by the plaintiff or his agent after delivery to the customers, the plaintiff would have produced evidence to that effect. However, I have changed this finding to read, "There is no evidence of any specific case in which the plaintiff went to his customer and inspected the purchase * * *," which I believe is a correct statement.

II. The main ground upon which a new trial is asked for is that the plaintiff, as a result of some misapprehension, did not produce certain evidence which he avers he had at his command, going to show the amount of physical damage to the product -- number of injured containers, extent of injury, etc., having reference particularly to the instances of injury to contents, as disclosed by staining or by the appearance of the product as seen through the slats of the containers.

 Nothing in the stipulations as to evidence precluded the plaintiff from producing such testimony upon this point as he may have had. Nor, so far as I can recollect, was anything said or done to indicate that the scope of this Court's decision in the Meltzer case (29 F.Supp. 840) would be enlarged to allow the plaintiff to establish his case with less evidence than the plaintiff in that case had.

 As was pointed out in the opinion, what is missing from the plaintiff's case here, is evidence from which the Court could find, with any semblance of accuracy, the quantity of commodities which may have suffered deterioration from pressure, shocks, or jars which might have bruised the content but left the containers intact. The disallowed part of the plaintiff's claim was for damages of that kind.

 As a general rule, a new trial will not be granted merely because the plaintiff has, through some misconception of his rights, failed to develop his case as fully as he might have done. The matter is, however, discretionary, and, if I felt that any injustice would be done by refusing the application, I would be inclined to reopen the case and permit further testimony to be taken in a new trial. But if the testimony of the witnesses Feldbaum and Bronstein be read, it will appear that whatever evidence the plaintiff may have had as to the actual amount of physical damages must depend entirely on the recollection of these witnesses unsupported by any records or memoranda whatever. It was conceded that there was no check-out or piece by piece inspection of the containers as they were unloaded. In the Meltzer case, there was a check out and inspection of each individual melon. The cars in question were unloaded from two to four years ago. Obviously, whatever evidence the plaintiff might produce would of necessity be uncertain and unreliable, and it is very doubtful whether, if presented, it should or could be made the basis of a finding for damages against the carrier.

 The motions are denied.


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