167 F.2d 366 (5th Cir. 1948), 12105, United States v. City of Jacksonville, Fla.

Docket Nº:12105.
Citation:167 F.2d 366
Party Name:UNITED STATES v. CITY OF JACKSONVILLE, FLA., et al.
Case Date:April 16, 1948
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 366

167 F.2d 366 (5th Cir. 1948)

UNITED STATES

v.

CITY OF JACKSONVILLE, FLA., et al.

No. 12105.

United States Court of Appeals, Fifth Circuit.

April 16, 1948

Rehearing Denied May 31, 1948.

H. S. Phillips, U.S. Atty., of Tampa, Fla., and Arthur A. Simpson, Asst. U.S. Atty., of Jacksonville, Fla., for appellant.

Robert R. Milam, of Jacksonville, Fla., for appellees.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

SIBLEY, Circuit Judge.

The City of Jacksonville for about twenty years has owned and operated Municipal Docks and Terminals on the St. Johns River which include large interconnected storage tanks in which spirits of turpentine are warehoused for compensation on warehoused receipts issued to the depositors. The City itself has not bought and sold turpentine. In 1942 and 1943 the Commodity Credit Corporation for the United States deposited and withdrew millions of gallons of turpentine, becoming the City's principal customer. On September 6, 1944, its deposits were over 98 per cent of the total of 2, 138, 644 gallons represented by outstanding warehouse receipts. On

Page 367

September 5, 1944, there was discovered a serious leakage of turpentine through a corroded pipe connection in a waste pipe line, and the loss as determined by inventories taken September 7 and 23 compared with that of August 15, 1944, was prorated among all holders of warehouse receipts, the portion falling on the United States being reported to it as being 26, 445 gallons. The City of Jacksonville thereafter refused on tender of the outstanding receipts to honor them to that extent, and the United States sued in the District Court to recover $20, 795.72, the market value of the withheld turpentine. The City's answer admitted that the receipts were outstanding and that it had withheld the turpentine as alleged, and set up as its defense that the turpentine sued for was lost by a leakage not due to its negligence. A jury trial was demanded.

On the trial the above stated facts were undisputed. The warehouse receipts held by the United States were on a form prepared by it, and contained a clause that the warehouseman 'will not be responsible for loss or damage by fire, the elements, leakage, or for other than ordinary care, or from other causes not due to its negligence.' The contested fact issue, on which there was much evidence taken, was whether the leak, and the failure to find it more...

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