Gore Products v. Texas & N. O. R. Co.

• Decision Date: 15 March 1948
• Docket Number: 18904.
• Court: Court of Appeal of Louisiana — District of US
• Parties: GORE PRODUCTS, Inc. v. TEXAS & N. O. R. CO.

34 So.2d 418

GORE PRODUCTS, Inc. v. TEXAS & N. O. R. CO.

No. 18904.

Court of Appeal of Louisiana, Orleans.

March 15, 1948

Rehearing Granted April 12, 1948.

Miller & Bloch, of New Orleans, for plaintiff and appellee.

Chaffe McCall, Toler & Phillips and Harry McCall, Jr., all of New Orleans, for defendant and appellant.

McBRIDE Judge.

This suit involves the question of what is the proper measure of damages to be assessed against a common carrier for the loss of part of the goods which constituted an interstate shipment. The facts of the case are succinctly set out in the brief of defendant as follows:

'Plaintiff contracted with defendant for the interstate transportation of four containers of medicine to a customer in Mexico City who was to pay fourteen hundred and forty dollars for the lot, or three hundred sixty dollars per container, freight included. In removing these containers from plaintiff's place of business, defendant's employees broke one thereby causing the loss of its entire contents; defendant thereupon requested and received from plaintiff an identical container of medicine to replace the broken one, and the shipment was carried to destination under the original contract of carriage, delivered to the consignee and payment of the full purchase price made to plaintiff.

'Plaintiff promptly made claim upon defendant for its loss by submitting an invoice for three hundred sixty dollars, the amount for which it had billed (and which it had received from) the consignee of the shipment. Defendant admitted its liability to the extent of plaintiff's actual loss and declined payment at the figure named by plaintiff on the ground that this was not plaintiff's cost and therefore did not represent the true measure of its actual loss. Plaintiff made no claim or showing of special damages, but insisted that this was the identical price made to its local customers as well as to the consignee of the broken container (which is admitted by defendant) and, although admitting that this amount included its profit, refused to divulge the cost to it of the lost medicine. Being thus effectually prevented from making tender of the amount it believed to be due, defendant could only decline payment of the claim in full, and this suit followed.'

Plaintiff sought judgment for $360 (the price for which it had sold the destroyed goods), and recovered that amount, subject however, to a credit of $3.52 for freight charges. Defendant has appealed.

It is agreed by both parties that the measure of plaintiff's recovery is to be governed by the Cummins Amendment to the Interstate Commerce Act, which provides that in case of loss, damage or injury to property which is the subject of carriage, the carrier 'shall be liable * * * for the full actual loss, damage, or injury to such property.' Act of March 4, 1915, c. 176, 38 Stat. 1197, 49 U.S.C.A. � 20(11).

It is defendant's contention that, under the circumstances of this case, the 'full actual loss' specified by the statute means the cost of the article to the claimant, and that there should be no consideration given to the price for which the article might have been sold.

In his argument, counsel for defendant first points to the case of Illinois Cent. R. Co. v. Crail, 1930, 281 U.S. 57, 50 S.Ct. 180, 181, 74 L.Ed. 699, 67 A.L.R. 1423. There plaintiff purchased in transit a carload of coal in which a 5,500 pound deficiency was found to exist upon delivery; the deficiency was replaced with coal purchased for the same price in wholesale lots. Plaintiff contended that the measure of damage should be the retail value of the undelivered coal, which included the cost of delivery to his customers. He had not contracted to resell any of the coal when the car arrived. The Court held that under the circumstances peculiar to the case, the more accurate measure of damage of the shortage would be the wholesale price, since it was capable of replacement, and was in fact replaced, in the course of the consignee's business from purchases made in carload lots at wholesale market prices without added expense. The Court said:

'There is no greater inconvenience in the application of the one standard of value than the other, and we perceive no advantage to be gained from an adherence to a rigid uniformity, which would justify sacrificing the reason of the rule, to its letter. The test of market value is at best but a convenient means of getting at the loss suffered. It may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable. See Wilmoth v. Hamilton, 3 Cir., 127 F. 48, 51; Theiss v. Weiss, 166 Pa. 9, 19, 31 A. 63, 45 Am.St.Rep. 638; Pittsburg Sheet Mfg. Co. v. West Penn Sheet Steel Co., 201 Pa. 150, 50 A. 935; Williston on Contracts, �� 1384, 1385. In the absence of special circumstances, the damage for shortage in delivery by the seller of fungible goods sold by quantity is measured by the bulk price rather than the price for smaller quantities, both at common law, see Morgan v. Gath, 3 Hurl. & C. 748; Avery v. Willson, 81 N.Y. 341, 37 Am.Rep. 503, and under section 44 of the Uniform Sales Act. Likewise, we think that the wholesale market price is to be preferred as a test over the retail when, in circumstances like the present, it is clearly the more accurate measure. * * *'

Counsel also directs our attention to the case of H. T. Cottam & Co. v. Illinois Cent. R. Co., 3 La.App. 240, decided by this court. The plaintiff in that case sued the carrier for recovery of the loss sustained as a result of defendant's failure to safely carry certain goods. Judgment was rendered for plaintiff in the lower court for the cost price of the damaged or lost merchandise, and plaintiff sought before us an amendment of the judgment, so as to increase the amount allowed to the price at which it could have sold the goods at their reasonable wholesale case value at the destination. We denied plaintiff recovery for its anticipated profits, because there was no proof that the goods in question had been sold by plaintiff before or while in transit, or that they formed part of any contract which plaintiff was bound to fulfill upon the date of delivery at the destination. We said:

'* * * The evidence establishes that there was no wholesale buyer of such goods in New Orleans, except the plaintiff, who bought not at New Orleans, but at the point of shipment involved in this case. However, there are innumerable buyers of such goods in New Orleans, buying exclusively of plaintiff, and if plaintiff's contention should here prevail, the effect would be to enlist defendant as an additional customer in plaintiff's New Orleans trade. We cannot give such effect to the contract. There is no proof that the goods in question had been sold by plaintiff before or while in transit, or that they formed parts of any contracts which plaintiff was bound to fulfill upon due date of delivery at New Orleans. There is nothing to show that plaintiff had contracted for the resale of these goods upon expectation of their timely delivery by the defendant.'

Defendant's counsel also cites the case of Silverman v. St. Louis, I. M. & S. R. Co., 51 La.Ann. 1785, 26 So. 447, 450, which he contends is authority for the proposition that a carrier is not expected, in the case of loss or damage, to purchase the lot at the shipper's price with anticipated profits added. The Silverman case has no application here. The shipment consisted of clothing, etc., made up largely of shopworn and second-hand goods, and plaintiff sued not only for the cost price, but also for ten per cent advance on values at time of shipment, rent, clerk's hire, and twenty-five per cent loss of profit on goods which he would have sold, and also for personal expenses and loss of time. The freight car in which the goods were loaded was broken into by an unauthorized person, and eight of the thirty-six boxes in the shipment were opened and some depredations committed upon the goods. In denying plaintiff's claim, the Court used the following expressions:

'These being the facts disclosed by the evidence, we find no principle of law upon which to predicate a judgment for the plaintiff. It may be conceded that the defendant was at fault for leaving plaintiff's property in an insecurely fastened and isolated car, with no one to which it. Nevertheless, the plaintiff cannot recover, without proving what, if any, injury this negligence of the defendants has caused him.

'The preponderance of evidence leads to the...