Gottesman & Co., Inc. v. Portland Terminal Co.
| Decision Date | 21 July 1942 |
| Citation | 27 A.2d 394 |
| Parties | GOTTESMAN & CO., Inc. v. PORTLAND TERMINAL CO. SONE v. SAME. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Cumberland County; Albert Beliveau, Judge.
Actions by Gottesman & Company, Incorporated, against Portland Terminal Company, and by Morton Sone against the same defendant, for breach of storage contracts. On defendant's exceptions to report of referee.
Exception sustained.
Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, and WORSTER, JJ.
Nathan W. Thompson and John D. Leddy, both of Portland, for plaintiffs.
E. Spencer Miller, of Portland, for defendant.
These two actions for breach of storage contracts were tried together before a referee and come up on exceptions to acceptance of his reports. Of the objections filed only those that have to do with assessment of damages need present consideration.
The defendant, with agreed responsibility of a warehouseman (Chap. 163, Sec. 21, R. S.1930), received wood pulp from each plaintiff and stored it in box cars on three different tracks in its Yard No. 9 in Portland. It consisted of 1,875 bales delivered on March 8, 1937, by Gottesman & Company, Inc., and 2,319 bales delivered on April 9, 1937, by Morton Sone. The contracts were wholly unrelated.
On April 13, 1937, a fire of unknown origin was discovered in this yard and by it some of each plaintiff's pulp was damaged. Of the 2,319 bales of Sone pulp, 180 bales were damaged, and of the 1,875 bales of Gottesman & Company, Inc., pulp, 150 bales. It is conceded that the defendant is not at fault on account of the starting of the fire. Plaintiffs' counsel in his brief states: "The only question, therefore, is how much of that actual loss was caused by defendant's negligence."
The referee, having found negligence upon the part of the defendant (apart from the origin of the fire), awarded to Gottesman & Company, Inc., as damages $1,344, and to Mr. Sone $633.99. Consequently, it appears that of the total losses agreed upon, i. e., $950.98 by Sone and $2,016 by Gottesman & Company, Inc., the referee decided that the defendant was not liable for one-third of the total loss of each but only for the other two-thirds.
The defendant complains that the referee acted arbitrarily and capriciously in thus assessing the damages and asserts that they were not proved with reasonable certainty in either case. It also claims (we believe correctly) that the evidence does not reveal the identity of the box cars in which the wood pulp of either plaintiff was actually stored, the extent of the damage to the contents of any car, whether the pulp of one plaintiff or the other or both was "in the first car, the third car, the sixth car or some other car," whether the fire started in a car housing the Sone pulp or the Gottesman pulp or both, or how long the fire had been in progress when it was discovered, or, after discovery, how much damage was done to the property of either plaintiff. We do know that six cars caught afire and that one car had apparently just been ignited, while the other five were in differing stages of burning.
Dealing with these separately owned and unrelated lots of pulp, we have a situation where we have no knowledge of the time in the progress of the fire when the defendant became at fault, if it did. It is entirely possible that the acts of negligence upon the part of the defendant, if there were such, took place at different times with reference to the Gottesman and the Sone pulp. It might well be that the damage to some of the pulp of one of the plaintiffs was occasioned quite largely before the defendant became negligent at all, but as to which plaintiff it is impossible of determination on this record.
In Groves Co., Inc., v. Bangor & Aroostook Railroad Company, 124 Me. 373, see page 376, 129 A. 823, it is held that under a bill of lading stipulating against liability unless loss or damage is due to negligence, the carrier is not liable for the full value of the shipment but the damages recoverable arc limited to that part of the shipment, if any, which may be saved after discovery of the fire upon exercise of due care.
Also this from Chicago, B. & Q. R. Co. v. Gelvin, 8 Cir., 238 F. 14, on page 22, L.R.A. 1917C, 983: "The record showing different conditions, occurring subsequent to the...
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