Continental Distributing Co. v. Reading Co.
| Decision Date | 06 May 1948 |
| Docket Number | No. 9482.,9482. |
| Citation | 168 F.2d 967 |
| Parties | CONTINENTAL DISTRIBUTING CO., Inc. v. READING CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Thomas Raeburn White, of Philadelphia, Pa. (W. Wilson White and White & Williams, all of Philadelphia, Pa., on the brief), for appellant.
George E. Beechwood, of Philadelphia, Pa. (Charles L. Ford, Conlen, La Brum & Beechwood, all of Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN, O'CONNELL, and KALODNER, Circuit Judges.
Plaintiff, the owner and shipper of 200 pipes of wine from Portugal to Chicago, Illinois, herein seeks damages for loss of a portion of the shipment by defendant, a railroad common carrier, between the time when defendant accepted shipment of the pipes in Philadelphia and that of delivery in Chicago. The jury returned a verdict in favor of plaintiff in the amount of $8890.92, without interest.1 Appealing from the judgment entered upon the verdict, defendant asserts three alleged grounds for reversal: (1) That "plaintiff has been paid the full amount of its loss by an insurance company," and that "defendant is entitled to the benefit of such insurance"; (2) that "the verdict was in excess of plaintiff's full, actual loss disclosed by the only competent evidence thereof"; and (3) that the charge of the court contained prejudicial error. Bearing in mind that the jury verdict requires the resolving of all doubtful issues of fact in favor of plaintiff, we shall consider each of these three questions.
At an early point in the trial, counsel for plaintiff in eliciting from one of his witnesses testimony concerning various items of damage, asked what insurance premium plaintiff had paid, apparently on the theory that such premium was a recoverable expense. On cross-examination of this witness, over plaintiff's strenuous objections, defendant adduced testimony indicating that plaintiff had received from the insurance company the sum of $14,536.52. The receipt covering this sum given the insurance company by plaintiff was introduced in evidence with the express consent of defendant's counsel, although the insurance policy itself was not. The receipt stated on its face that the money was a repayable loan. In side bar conference, defendant's counsel stated that it was a question of fact for the jury to decide whether the money given plaintiff by the insurance company was a loan or a payment.
It is now the contention of defendant that, since the bill of lading which defendant issued to plaintiff gave defendant the full benefit of any insurance effected by plaintiff; and since there was no evidence that the insurance policy contained a provision inconsistent with the aforementioned benefit section of the bill of lading; the money received by plaintiff must be deemed an insurance payment.
We shall assume arguendo that the court was justified in permitting the testimony concerning the receipt of this money to be adduced; and we shall assume further that the benefit section of the bill of lading was valid. See Luckenbach v. McCahan Sugar Co., 1918, 248 U.S. 139, 146, 39 S.Ct. 53, 63 L.Ed. 170, 1 A.L.R. 1522. But see China Fire Ins. Co. v. Davis, 2 Cir., 1931, 50 F. 2d 389, 391, 392, 76 A.L.R. 1259, certiorari denied sub nom. Mellon v. China Fire Ins. Co., 1931, 284 U.S. 658, 52 S.Ct. 36, 76 L.Ed. 558. An insurmountable difficulty nevertheless confronts defendant. The policy under which the shipper was insured not having been produced in evidence, we are consequently at a loss to know the exact provision of coverage. Defendant, with the power to take steps to compel production of the policy itself, chose instead to urge the jury on the basis of the oral testimony and receipt to find the transaction to be an insurance payment. The jury must be construed as having decided that what plaintiff received was a repayable loan, and not an insurance payment. The Luckenbach case squarely holds valid the kind of arrangement which plaintiff asserted and the jury here found to be the intention of the parties to the transaction.2 On the basis of the record before us, we cannot say as a matter of law that the intention of the parties was otherwise.
In view of the finding that defendant could not claim the benefit of the agreement between plaintiff and the insurance company, it becomes important to determine the extent of the liability of defendant. Apart from some testimony indicating both that the pipes were proper containers for shipment of the wine at the time when the instant cause of action arose, and that the pipes had been subjected to rough handling, the trial was principally devoted to sharp controversy over the gallonage lost by defendant and the value per gallon of the wine. At the conclusion of the trial, the court permitted each of the litigants to submit to the jury a calculation of the amount of damages. Since the jury verdict was in the precise amount claimed by plaintiff, $8890.92, it is evident that the computations submitted by plaintiff were accepted in toto. Accordingly, we direct our analysis to these computations.
(1) The gallonage.
For each of the 200 pipes, plaintiff listed the net weight in kilograms, the number of liters, the amount shipped in gallons, the number of gallons received, and the leakage. For example, the first three pipes were treated as follows:
Pipe Net Wt. Gal. Gal
No. Kg. Litres Shipped Received Leakage
1 541 530 140 139.0 1.0
2 545 534 141 129.5 11.5
3 538 527 139 137.0 2.0
The evidence discloses a sound basis for the figures in the "net weight kg." column, in that the "Note of Gauges" of the Portuguese vendor was introduced, and the net weight figures on that document correspond with those used in plaintiff's computation. The basis for plaintiff's liter column, however, seems to be arbitrary; for, although the net weight of the pipes ranged from 525 to 551 kilograms, in 197 out of the 200 instances plaintiff subtracted the figure of 11 and asserted that the remainder was the volume of liters in the pipe.3 In the absence of testimony explaining why the volume of liters should almost invariably result in eleven less than the weight in kilograms, we think the jury had no proper foundation for accepting plaintiff's figure of how many liters were shipped from Portugal, particularly when plaintiff's total of 106,031 liters is 30 liters greater than the total given on the note of gauges of the Portuguese vendor, which document plaintiff introduced in evidence.
Apparently plaintiff computed the gallonage per pipe by dividing the number of liters in each pipe by 3.785. The result, however, was set down only in full gallons, although the "gallons received" column shows the volume in tenths of gallons as well. The 28012 "gallons shipped" total at which plaintiff arrived, therefore, is really only an estimate rather than an exact figure. Since the jury was told only that those figures were mathematically correct and cautioned that defendant did not agree with the theory of the computations, we think that the failure of plaintiff at least to set a foundation in the evidence for the consideration of those computations deprived the jury of a rational basis for acceptance of figures which under our analysis not only lack accuracy but also show inconsistency with plaintiff's other evidence.
At this point, it is necessary for us to consider the instructions given the jury concerning the computations. The pertinant portion of the court charge reads as follows: Although other portions of the charge do remind the jury of such possibilities as loss by seepage, we find no comment which clearly pointed out that the jury was not obliged to accept either of the computations submitted by counsel. It is not unlikely that the jury, believing the figures presented by plaintiff to reflect more nearly the actual loss between Philadelphia and Chicago, thought it necessary to return a verdict in exact accord with that computation, rather than a verdict for some third figure. Even though neither litigant asked the court to instruct the jury that choice between the two submitted figures was not necessary, we believe that under the circumstances it was error on the part of the court to permit the jury to consider those figures without an adequate evidentiary foundation and without clear indication that neither result suggested by the litigants was binding.
In passing, it might be noted that the computations of defendant are subject to a similar infirmity. Defendant on this appeal has taken the position that the only competent evidence of the gallonage lost between Philadelphia and Chicago was that supplied by defendant in weighing the shipment at Philadelphia. In examining defendant's computation, however, we note that defendant's result, a maximum shortage of 1907 gallons between Philadelphia and Chicago, depends in part upon the...
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