Great Atlantic & Pacific Tea Co. v. ATCHISON, T. & SF RY. CO., 57 C 745.

• Citation: 224 F. Supp. 903
• Decision Date: 06 January 1964
• Docket Number: No. 57 C 745.,57 C 745.
• Parties: The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Plaintiff, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

224 F. Supp. 903

The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Plaintiff, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant.

No. 57 C 745.

United States District Court N. D. Illinois, E. D.

January 6, 1964.

Hopkins, Sutter, Owen, Mulroy & Wentz, Chicago, Ill., Thomas R. Mulroy, Daniel Walker, Chicago, Ill., Fred E. Campbell, New York City and E. J. Donahue, Chicago, Ill., of counsel, for plaintiff-appellant.

Floyd J. Stuppi, John J. Schmidt, William J. O'Brien, Jr., Sidley, Austin, Burgess & Smith, Chicago, Ill., for defendant.

CAMPBELL, Chief Judge.

This cause, a claim for damages by plaintiff, The Great Atlantic and Pacific Tea Company, Inc., against defendant, The Atchison, Topeka and Santa Fe Railway Company alleging unreasonable and unexcused delay in a shipment, having come on for trial upon a stipulation of facts, is presently before me upon the briefs of the parties.

The facts are as follows: Plaintiff Great Atlantic & Pacific Tea Company (hereinafter referred to as "A & P") is a New Jersey corporation engaged solely in the retail grocery business operating retail stores in which it sells fresh foods, vegetables and other items. Defendant, The Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as "Santa Fe"), is a corporation engaged in business in Illinois and other states as an interstate common carrier by railroad. Defendant is a "carrier" within the meaning of that word as used in the Interstate Commerce Act, as Amended, and was the initial carrier as described in Section 20(11) of the Interstate Commerce Act, Title 49, U.S.C., Section 20 (11) for the shipment of plums described below. This shipment was made under a uniform straight bill of lading issued by Santa Fe and signed by A & P and Santa Fe.

On June 2, 1956 a shipment was made by A & P consisting of a carload of California Beauty Plums from Red Banks, California consigned to A & P at Harlem River, New York, which is one of the receiving points of A & P for produce for the New York area. The plums were delivered to A & P by Santa Fe at 5:30 A.M. on June 12, 1956. Under the usual and customary time for transportation and delivery by railroad from Red Banks, California to Harlem River, New York, the plums should have been delivered to A & P prior to 9:00 A.M. on June 10, 1956. The period of delay was unreasonable and unexcused but was not intentional. The produce was not transported and delivered to A & P with "reasonable dispatch" within the meaning of that term in Section 2 of the "contract, terms and conditions" of the uniform straight bill of lading.

For the purpose of this lawsuit only Defendant concedes that if the plums had been sold on the wholesale market in New York on June 12, 1956 the price per crate would have been 74¢ per crate less than if such sale had been made on such wholesale market on June 11, 1956 (June 10, 1956 was a Sunday and therefore the wholesale market quotations for Monday, June 11, 1956 are used by the wholesale produce trade to determine the wholesale market prices for produce delivered on Sunday by a carrier). The plums were intended for sale and were sold at retail in A & P stores in the New York City area and were not sold at wholesale.

It is the practice of A & P to purchase produce from growers in the area where such produce is grown and to have it shipped to itself by common carrier in the area where the produce is to be sold in A & P retail stores. A & P orders produce from the growing area on the basis of the estimated need for such produce in the retail stores within 24 hours after the usual and customary shipping time for the retail store area from the growing area. Title to the contents of the shipment passes to A & P from the growers when the contents are loaded by the growers into the freight cars for shipment. These purchases and shipments are made by A & P for the purpose and with the intent of sale at retail in the A & P stores located in the respective destination areas. A & P does not sell on the wholesale market. Produce is not stored for future use by A & P in either warehouses or retail stores. A & P constantly moves the produce to the retail stores in time for sale in those stores on the day following its receipt by A & P from the carrier.

The practices described above were followed with respect to the shipment of plums herein.

In the New York metropolitan area, pursuant to instructions from A & P, there is a routine practice for the carrier delivering cars of produce to place such cars on the public inspection tracks for inspection by A & P personnel. Thereafter, when a car is accepted by A & P, an order is given to the carrier to move such car to an A & P private siding for unloading. Customarily such car is delivered to the A & P private siding on the day on which it is inspected and accepted by A & P personnel at the public inspection tracks. From 12 to 24 hours may elapse from the time such car is placed on the public inspection tracks until it is delivered to the A & P private siding. At times A & P will arrange for immediate unloading of such cars of produce to trucks at the public inspection tracks for direct delivery to retail stores. On occasion A & P may issue diversion orders to move a car from the public inspection tracks to shipment to the city. On rare occasions A & P may allow a car to remain at the public inspection tracks after acceptance for a day or two before ordering the carrier to move the car to the A & P private siding. Cars are customarily unloaded by A & P promptly after they are delivered by the carrier to an A & P private siding. However, a car may remain at the A & P private siding from two hours to (on very rare occasions) 55 hours before it is released by A & P for return to the railroad.

A & P issues to all retail stores in the New York metropolitan area a daily price list which shows a retail selling price for each item of produce for that day. The price shown for plums on said A & P daily price list did not change during the period from June 10, 1956 to June 15, 1956. Each retail store manager has independent authority from A & P to determine whether produce should be offered for sale at prices lower than the prices shown in said price list and how often such prices should be reduced. Although the daily retail price lists for the entire month of June 1956 are not available, A & P concedes for purposes of this case that the prices quoted on such lists for plums of the kind and quality involved herein during the month of June, 1956 did not change as frequently as the wholesale market prices and did not move up or down in relation to changes in the wholesale market prices during that period. The wholesale market price of produce is considered as one of the several factors used by A & P in determining the retail prices to be included in the price lists described above.

A & P does not keep and to the knowledge of its officers and employees has never kept records which would disclose with respect to shipment of produce sold at retail (a) whether all of such produce has been sold, (b) the date or time of day when such produce was sold, (c) the store at which such produce was sold, (d) whether such produce was commingled with other produce of the same kind or quality at some A & P retail stores, or (e) any facts about the sale of such produce, including the price at which it was sold other than the daily price list described above and advertisements, neither of which constitutes a record of actual sales.

There was no physical damage to or deterioration of the plums. A & P bases its claim for damages in this action solely on delay in the transportation and delivery of the plums and the decline in the wholesale market price during the period of such delay as set forth above.

Plaintiff points out that this case involves a head-on collision between the excuse of "injury without damage" and the axiom of "every wrong has a remedy". Broadly speaking, I would agree since the delay of two days is a wrong and yet there was no physical damage to or deterioration of the plums which were merely sold by A & P at identical retail prices on Wednesday instead of Monday.

Since plaintiff in this case cannot look to retail prices as a measurement of damages, as it concedes is the natural impulse, it instead bases its claim on a decline in wholesale prices during the critical period. The obvious difficulty with plaintiff's contention is that the wholesale market criterion of damages suggested in this case is, as plaintiff recognizes, unrealistic. Except for plaintiff's theory of replacement which I cannot accept in this case, I find no correlation between the stipulated facts of the wholesale market to justify this as measure of damages. A & P shipped its own plums intending them for sale and selling them at retail. The retail and wholesale market price levels move independently of each other. The wholesale prices on various kinds of plums of different quality and condition on Monday, June 11, 1956, consisted of 13 prices ranging from $3.77 to $7.60. It is not known how many crates sold at each price. The unweighted average was $4.93 per crate. On Tuesday, June 12, 1956, wholesale prices on various kinds of different quality and condition plums consisted of 30 prices ranging from $3.17 to $6.35, the unweighted average being $4.19, which accounts for the stipulated 74 cents decline in the wholesale market. I...