B. Heller & Co. v. Perry
| Citation | 201 F.2d 525 |
| Decision Date | 27 February 1953 |
| Docket Number | No. 10735,10739.,10735 |
| Parties | B. HELLER & CO. v. PERRY. JEWEL TEA CO., Inc. v. PERRY. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Charles W. Stiefel, Jr. and Arnold M. Flamm, Chicago, Ill., R. D. Sturtevant and John W. Unger, Barrington, Ill., for petitioners.
Eaton Adams, Thomas I. Megan and O. L. Houts, Chicago, Ill., Thomas J. Barnett and Floyd J. Stuppi, Chicago, Ill., for respondent.
Hale Houts, Kansas City, Mo., for intervenor.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
Rehearing Denied in No. 10735, February 27, 1953.
In these two causes each petitioner, plaintiff in an action in the District Court, seeks a writ of mandamus directing District Judge J. Sam Perry to expunge and strike from the court records an order transferring the original cause from the jurisdiction of the United States District Court for the Northern District of Illinois to the United States District Court of Kansas. As the questions presented in each of the two cases are the same, we shall dispose of both in one opinion.
In the complaints filed in the District Court, the plaintiff in one charged the defendant Chicago Rock Island and Pacific Railroad Company and, in the other, the Atchison, Topeka and Santa Fe Railway Company with having accepted for shipment, on or about July 9, 1951, at Chicago, as a common carrier, certain merchandise to be transported, in the first instance to Oklahoma City, Oklahoma, and in the other, to Ft. Worth, Texas, and with having failed to perform its common carrier obligations, so that, as a result of its wrongful failure in the premises, the goods, in one case, of the value of $5235 and, in the other, of $14,274.99, were lost to plaintiffs. In each case the defending railroad company admitted the carriage contract, its failure to deliver, and the value of the goods lost, but asserted, as a special defense, that, while the merchandise was in transit, in the possession of the carrier, it was virtually destroyed by an extraordinary flood "which constituted an Act of God", at Kansas City, Kansas.
Having answered as related, each defendant filed a motion to transfer the action against it, under Section 1404(a) of Title 28 U.S.C., to the United States District Court of Kansas, where suit might have been brought, "for the convenience of parties and witnesses, and in the interest of justice," supporting the motion with an affidavit wherein the following facts were set forth.
The loss was caused on or about July 13, 1951, by an unusual, sudden and extraordinary flood, which overflowed the dikes of the Kansas River and inundated the yards of defendants' yards, in or near Kansas City, Kansas, causing the loss and damage of which complaint was made, the amount of which was not disputed. It was asserted that some 30 or more material witnesses resided in the Kansas City community, whose testimony would be essential to a full and fair trial, among them officials and employees of the United States Army Corps of Engineers, the United States Weather Bureau, the United States Geological Survey, the city and county governments, the drainage district, the packing companies and the stockyards, as well as citizens of Kansas City, all of whom it would be impossible to compel to attend a trial in Chicago, but whose attendance at a trial in Kansas City could be accomplished. Other witnesses, including employees of the railroad companies, familiar with the essential facts, likewise lived in the Kansas community. Each defendant asserted that the only controverted questions were whether the flood was an Act of God, within the terms of the bills of lading, and whether it as carrier was guilty of negligence causing the damage to the merchandise flooded in Kansas City.
Each plaintiff filed its counter-affidavit averring that the only controverted questions were whether the flood was an Act of God and, if so, "whether defendant had sufficient notice, or, with the exercise of due care should have had sufficient notice that the flooding of the yard was likely to occur * * * so that in the exercise of ordinary care it should have refrained from placing plaintiff's merchandise in the path of such flood or should have removed it from such path," or "whether defendant's servants and employees acted negligently in failing to divert or remove traffic from the danger area." Each plaintiff contended that the defendant could easily produce its evidence in Chicago, that to transfer the cause would greatly inconvenience it and would not be in the interest of justice. Other pertinent facts were presented by the respective parties. We have sketched only briefly some of the salient evidentiary material before the District Court, sufficient to indicate, in our opinion, full justification for the orders of transfer.
The District Court said: "The court having considered the affidavits,...
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Sypert v. Bendix Aviation Corporation, 54 C 1112.
...has stated the criteria to be applied by district judges in exercising the discretion conferred by the section. B. Heller & Co. v. Perry, 7 Cir., 1953, 201 F.2d 525; General Portland Cement Co. v. Perry, supra; Dairy Industries Supply Ass'n v. La Buy, 7 Cir., 1953, 207 F.2d 554; Chicago, R.......
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Skil Corp. v. Millers Falls Co.
...in this type of situation only if the district judge abused his discretion with regard to the transfer question. 13 The decision in B. Heller & Co. v. Perry 14 exemplifies that approach. Petitioners there sought expungement of a district court transfer order issued under the authority of se......
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Gore v. U.S. Steel Corp.
...v. Union Pac. R. Co., 97 F.Supp. 275 (D.C.Pa.1951); Hansen v. Nash-Finch Co., 89 F.Supp. 108 (D.C.Minn.1950). In B. Heller & Co. v. Perry, 201 F.2d 525, 527 (C.C.A.7, 1953), merchandise being carried by the defendant railroads was lost as the result of a sudden flood at Kansas City, Kansas.......
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Chicago, RI & PR Co. v. Igoe
...6 Cir., 188 F.2d 537. We did not reach the question in General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316, and B. Heller & Co. v. Perry, 7 Cir., 201 F.2d 525. The power of a court of appeals to mandate a district judge in a proper case was recognized in a leading decision rendered p......