Austin v. Seaboard Air Line R. Co., 13448.

• Decision Date: 06 April 1951
• Docket Number: No. 13448.,13448.
• Citation: 188 F.2d 239
• Parties: AUSTIN v. SEABOARD AIR LINE R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

188 F.2d 239 (1951)

AUSTIN v. SEABOARD AIR LINE R. CO.

No. 13448.

United States Court of Appeals Fifth Circuit.

April 6, 1951.

P. Donald DeHoff, Jacksonville, Fla., for appellant.

Richard E. Cotton, L. S. Julian, Miami, Fla., for appellee.

Before HOLMES, McCORD and STRUM, Circuit Judges.

McCORD, Circuit Judge.

This suit was brought by R. S. Austin, trading and doing business as Evergreen Christmas Tree Company at South Barre, Vermont, against Seaboard Air Line Railroad Company, a Virginia corporation, for failure to deliver in good condition a car load of Christmas trees to Miami Retail Grocers, Inc., at Miami, Florida.

The evidence reveals that on November 24, 1948, plaintiff delivered to the initial carrier at South Barre, Vermont, 606 bundles of spruce Christmas trees consigned to Miami Retail Grocers at Miami, Florida; that plaintiff loaded the shipment of trees into a heavy steel railroad box car provided by the initial carrier, and upon inspection found that the box car was in good and proper condition for the safe transportation of the shipment; that after the trees were loaded into the box car the car was fumigated, in accordance with the requirements of the United States Department of Agriculture, by turning into the car a liquid gas or chemical vapor designed to kill insects; that after fumigation of the car it was kept closed for several hours, and then opened and aired from four to eight hours, after which it was sealed tight to await shipment; that the car was delivered to Central Vermont Railway, Inc., and left South Barre, Vermont at 11 o'clock a.m. on November 26, 1948, and arrived in Miami, Florida, at 3:45 o'clock a.m. on Saturday, December 4, 1948; and that when the box car was opened at its destination, the inside of the car was wet, and heat and smoke in the car had caused all the Christmas trees to become burned and turn brown, so as to render the entire shipment a total loss.

It was shown that plaintiff had been in the Christmas tree business at South Barre, Vermont for about twenty years; that he bought and cut trees from sections in Vermont and Canada, and stacked them near the railroad siding at South Barre to await shipment from September to the last of November each year; that the trees comprising the shipment in question had been cut and left on the siding for sometime prior to their loading, and that heavy rains had made the trees wet and heavy to the extent that plaintiff had requested the carrier to make some allowance on the freight for this additional weight at the time of the shipment; that the temperature was approximately sixty degrees at the time and place of the shipment, but while the car was in transit and as it approached its destination the temperature increased to above eighty degrees. The evidence further discloses that the car containing the shipment was inspected by agents of the initial carrier, as well as by the plaintiff Austin; that further inspections were made along the route by each intervening carrier, and on each occasion the seal on the box car was found intact; and that the time required for delivery of the shipment was not unusual, but covered only a reasonable period.¹

The case was tried by the court without the intervention of a jury, and the court found from the evidence that the trees were loaded in a wet condition; that their damp condition when loaded, combined with the gradual increase in temperature while the shipment was en route, contributed to or caused the damaged condition of the trees; that the injury to the shipment was not caused by the defendant or connecting carrier, but...