United States v. JE BOHANNON COMPANY

• Citation: 232 F.2d 756
• Decision Date: 02 May 1956
• Docket Number: No. 12588.,12588.
• Parties: UNITED STATES of America, Appellant, v. J. E. BOHANNON COMPANY, Inc., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

232 F.2d 756 (1956)

UNITED STATES of America, Appellant, v. J. E. BOHANNON COMPANY, Inc., Appellee.

No. 12588.

United States Court of Appeals Sixth Circuit.

May 2, 1956.

Marcus A. Rowden, Washington, D. C., Joseph D. Guilfoyle, Melvin Richter, Benjamin Forman, Washington, D. C., J. Leonard Walker, Louisville, Ky., on brief, for appellant.

Ernest Woodward, Louisville, Ky., Lorenzo K. Wood, Louisville, Ky., J. T. Orendorf, Bowling Green, Ky., Woodward, Hobson & Fulton, Louisville, Ky., on brief, for appellee.

Before McALLISTER, MILLER and STEWART, Circuit Judges.

MILLER, Circuit Judge.

The United States brought this action to recover damages in the sum of $628,200.81 for the failure of the appellee, J. E. Bohannon Company, Inc., to redeliver tobacco stored in its warehouse. The tobacco had been placed in storage in appellee's warehouse by the Eastern Dark Fired Tobacco Growers' Association and the Burley Tobacco Growers' Association under an agreement with the Commodity Credit Corporation to secure monies advanced by it under the tobacco price support program. Warehouse receipts were issued by the appellee to the two associations and were placed in escrow with the Louisville Bank of Cooperatives for and on behalf of the Commodity Credit Corporation. On July 19, 1951, about 5:15 p. m., a fire occurred at the warehouse which damaged or destroyed 1,549,130 pounds of the stored tobacco. Following the inability and failure of the appellee to redeliver the tobacco to the Commodity Credit Corporation, this action was filed.

In the jury trial which followed, the Government made out a prima facie case by showing the delivery of the tobacco to the appellee and the appellee's failure to redeliver. Appellee introduced evidence purporting to show that it had exercised due care. At the close of appellee's case, the Government moved for a directed verdict which the District Judge denied, ruling that the Government's prima facie case had been rebutted and that it was incumbent upon the Government to offer proof to show wherein the appellee was negligent. The Government then introduced evidence to the effect that there was a hole in the warehouse, that boys had gone in and out of it on the afternoon of the fire, and that there had been smoking around or in the warehouse. At the conclusion of the Government's evidence, appellee moved for a directed verdict and the Government renewed its motion for a directed verdict. The District Judge denied both motions, ruling that negligence and proximate cause were questions for the jury. The jury returned a verdict for the appellee, upon which judgment was entered, followed by this appeal.

Appellant contends that the District Judge erred to its prejudice in his instructions to the jury in three respects. (1) That he failed to instruct the jury that the burden of proof was upon the appellee to prove by a preponderance of the evidence that it exercised due care; (2) that he failed to instruct the jury to ignore the clause in the warehouse receipts which stated that the tobacco was received and stored subject to the owner's risk as to loss by fire; and (3) that he failed to instruct the jury that appellee's evidence that it followed the usual custom of the trade in storing and caring for the tobacco could be considered by the jury with other evidence bearing on the issue, but did not of itself establish that appellee had exercised due care. Instructions to that effect were offered by the Government. Appellee contends that the requested instruction as to burden of proof did not embody the correct rule of law, and, in any event, although the requested instructions were not given in the wording asked by the Government, the issues involved therein were covered by the instructions actually given. Much of the present appeal concerns itself with these issues. Appellant's contentions have considerable merit. Denning Warehouse Co. v. Widener, 10 Cir., 172 F.2d 910, 912, 13 A.L.R.2d 669; Empire Oil & Refining Co. v. Hoyt, 6 Cir., 112 F.2d 356, 361. However, in our opinion, it is unnecessary to rule upon them in view of our conclusion that appellee's motion for a directed verdict at the conclusion of the Government's evidence should have been sustained, in that there was not sufficient evidence with respect to the alleged negligence and proximate cause to take the case to the jury. Jones v. Mutual Life Ins. Co. of New York, 8 Cir., 113 F.2d 873, 874; Couch's Adm'r v. Black, 301 Ky. 24, 190 S.W.2d 681.

The evidence showed that appellee's warehouse was properly located, designed and constructed and was considered a first-grade warehouse. It was approved by the Government before the cooperative association deposited any of the tobacco for storage. Its method of operation was known to the Commodity Credit Corporation at the time of the storage. A government witness testified on...